Criminal Law

Question 1

4th Amendment

Answer 1

The Florida Constitution adopts the 4th Amendment of the US Constitution which expressly protects against unreasonable searches and seizures by a law enforcement without probable cause or a warrant. A search occurs when a person’s reasonable expectation of privacy is violated. A seizure is when a person freedom of movement is impeded in any significant way.

Probable cause for a search exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Reasonable suspicion is less than probable cause but more than a hunch based on TOC.

Question 2

Warrant

Answer 2

A search warrant must be issued by a neutral and detached magistrate and must be based on probable cause. The warrant must describe the scope of the warrant and the places to be search and the items to be seized.

Question 3

Exigent Circumstances

Answer 3

However, police may enter a home without a warrant when there are exigent circumstances such as destruction of evidence, imminent harm of another, or hot pursuit.

Question 4

Stop and Frisk

Answer 4

Stop: reasonable suspicion criminal activity is afoot — Frisk: Reasonable suspicion person is armed and dangerous

Question 5

Search Incident to an Arrest

Answer 5

After a lawful arrest an officer may search person of the defendant or anything within the wingspan.

Question 6

Consent

Answer 6

Consent to search or anyone with apparent authority.

Question 7

Plain View

Answer 7

In addition, police may seize property that is clearly visible in plain view without a warrant if the police are lawfully positioned and it is immediately apparent that the evidence is incriminating.
Exclusionary rule bar introduction of evidence illegally obtained.

Question 8

Automobile Exception Search

Answer 8

The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe that it contains contraband or evidence of a criminal activity. The police can search as far as they probable cause takes them.

Question 9

5th Amendment

Answer 9

The Fifth Amendment of the US constitution provides that no person shall be compelled in a criminal case to be a witness against himself. The Florida Constitution provides the same privilege.

Miranda rights apply to custodial interrogations, if Miranda warnings are not given then any incriminating statements will be inadmissible unless they were made voluntary, spontaneous, or unsolicited.

Custody is when a reasonable person does not feel like they are free to leave based on the totality of the circumstances. Interrogation is express questioning, words, or actions designed to elicit an incriminating response.

Invocation of Miranda rights must be absolute and unequivocal.
Waiver of Miranda must be KIV.

Florida offers greater 5th amendment protection than the US Constitution. A defendant’s pre-arrest, pre-Miranda silence is only admissible to impeach the defendants inconsistent trial testimony. If the defendant does not testify the statements cannot be used.

Question 10

Accessory

Answer 10

Florida does not distinguish between principals and accessories before the fact. Any person who aids, abets, counsels, or procures a criminal offense is a principal in the first degree. (presence not required)

In Florida, an accessory after the fact is someone who assists a principal with the intent to help the offender escape detection or punishment after the crime has been completed. In Florida, family members cannot be accessories after the fact if the principal is charged with a 3rd degree felony or less.

A person convicted as a principal to a crime cannot also be convicted as an accessory after the fact to the same crime.

Question 11

Conspiracy & Solicitation

Answer 11

A conspiracy is when two or more people agree to commit a crime. Florida follows the common law which means no overt act is required.

Solicitation is the enticing, encouraging, requesting, or commanding of another person to commit a crime with the intent that they do so.

In Florida, withdrawal is the same for conspiracy and solicitation. A proper withdraw is when a Defendant persuades the other party not to commit the crime or prevents the commission of the crime and manifests a complete and voluntary renunciation of his criminal purpose.

Question 12

Insanity Defense

Answer 12

Florida follows the M’Naghten test for insanity which means because of a mental defect the defendant did not know the nature and quality of the act or the wrongfulness of the act. In Florida, insanity is an affirmative defense, and the defendant has the burden of proving it by clear and convincing evidence.

Question 13

Incompetent to Proceed

Answer 13

In Florida, the State may not proceed against a person who is mentally incompetent. A Defendant is mentally incompetent if they do not have the ability to consult with his counsel with a reasonable degree of rational understanding and has no rational or factual understanding of the pending proceedings. — must have hearing within 20 days and have 2 experts.

Question 14

Diminished Capacity Defense

Answer 14

Generally, Florida law does not allow for a diminished-capacity defense. However, there are some narrow case law exceptions for a person who suffers hallucinations or delusions after being found sane under the insanity test.

Question 15

Criminal Motions

Answer 15

A defendant may file a motion to suppress unlawfully seized evidence. The motion must state the evidence to be suppressed, the reasons why, and a general statement of facts for the basis of the motion. — (illegal search, insufficient warrant, no probable cause, seized property was not described in warrant)

A defendant may file a motion to suppress an illegally obtained confession or admission. The motion must state the statement to be suppressed, the reasons why, and a general statement of the facts for the basis of the motion.

A defendant may file a motion to dismiss if there are no material disputed facts, and the undisputed facts do not establish a prima facie case of guilt.

Question 16

Double Jeopardy

Answer 16

The double jeopardy clause of the 5th Amendment protects against a second prosecution for the same offense after acquittal or conviction, and against multiple punishments for the same offense.

In a bench trial, jeopardy attaches when the first witness is sworn in. In a jury trial, jeopardy attaches when the jury is empaneled and sworn in.

Double jeopardy does not prevent a retrial following a mistrial.

Question 17

Evidence Rules

Answer 17

Authentication: all tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what the proponent claims it to be.

Relevance: evidence is relevant if it has any tendency to make a fact more or less probable then it would be without the evidence and the fact is of consequence in determining the action.

Hearsay is an out of court statement offered to prove the truth of the matter asserted. Hearsay is inadmissible unless an exception or exclusion applies.

In Florida, a statement made by a party to the current litigation is an exception to the hearsay rule if it is offered by an opposing party. (Admission of party-opponent exception to hearsay rule)

Under the rule of completeness, an adverse party may compel the introduction of an omitted portion of a writing or statement, if in fairness, it explains or clarifies the admitted portion.

Question 18

Exclusion of Witness

Answer 18

The Florida Constitution gives individuals the right to be informed, to be present, and to be heard at all stages of criminal proceedings.

A witness in a criminal case may not be excluded if they are a victim of the crime, next of kin, or parent unless the court determines their presence would be prejudicial to the rights of the accused.

Question 19

First Degree Murder

Answer 19

In Florida, first-degree murder is a premeditated killing, felony murder, or killing in distribution of controlled substances.

The unlawful killing with a premeditated design to cause the death of a human being. (transferred intent can apply)

First-degree felony murder is a killing during the commission of an enumerated felony. Enumerated felonies in Florida include: burglary, arson, robber, rape, and kidnapping + drug trafficking, sexual battery, human trafficking, terrorism and carjacking.

Unlawful killing resulting from the unlawful distribution of a controlled substance (cocaine, opium, methadone) by a person 18 years or older.

NO YEAR AND A DAY RULE IN FLORIDA – IF THE PERSON DIES YOU’RE THE PROXMIATE CAUSE OF THE DEATH

Question 20

Burglary

Answer 20

In Florida, burglary is the entering a dwelling, a structure, or a conveyance with the intent to commit an any offense therein. A dwelling is anything used to lodge people at night, even if abandoned.

Question 21

Assault

Answer 21

In Florida and assault is a threat to do violence to a person, coupled with an apparent ability to do so, which creates fear that such violence is imminent. — Aggravated assault is an assault with a deadly weapon or with the intent to commit a felony.

Question 22

Battery

Answer 22

In Florida, battery is the actual and intentional touching or striking of another person without consent. Felony battery is a battery that results in a substantial injury. Aggravated battery is use of deadly weapon, battery on pregnant woman, or intentionally or knowingly causing great bodily harm.

Question 23

Robbery

Answer 23

In Florida, robbery is the taking of property from the person or custody of another, with intent to deprive, by use of force, violence, assault, or putting in fear. (first degree if weapon used)

Question 24

Theft

Answer 24

In Florida, a theft (larceny, embezzlement, false pretenses) occurs when a person knowingly obtains or uses, or endeavors to obtain or use, the property of another with the intent to temporarily or permanently deprive. – the statute defines theft as including attempted theft

1. Grand theft in first degree
2. Grand theft in second degree
3. Grand theft in third degree

Question 25

Kidnapping

Answer 25

In Florida, kidnapping means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority. + intent to demand a ransom or commit an additional felony.

Question 26

Receiving Stolen Property

Answer 26

Receiving stolen property is a statutory crime that requires: receiving control of stolen property, knowledge that the property is stolen, and (iii) the intent to permanently deprive

Question 27

Arson

Answer 27

In Florida, arson occurs when a person who willfully and unlawfully, or while in the commission of any felony, by fire or explosion, damages a dwelling or structure.

Question 28

Sexual Battery

Answer 28

In Florida, sexual battery means oral, anal, or vaginal penetration by, or union with, the sexual organ of another without consent

Lewd or Lascivious Battery, is a type of statutory rape, occurs is when a person who is 18 years or older engages in sexual activity with a person 12-16 years old. (first-degree felony), under the age of 12 is life felony. – mistake of fact or consent is not a defense – strict liability crime only requires the actus reas no means rea.

Question 29

2nd Degree Murder

Answer 29

In Florida, second degree murder is the unlawful killing of a human being with a depraved mind and no regard for human life (depraved heart murder), or

Second-degree felony murder is a killing committed by someone other than the defendant during the commission of an enumerated felony. This includes the death of a co-felon caused by the victim.

Question 30

3rd Degree Murder

Answer 30

Third-degree murder is a killing committed by defendant during the commission of a non-enumerated felony (another form of felony murder).

Question 31

Manslaughter

Answer 31

In Florida, manslaughter is the killing of a human being by the act, procurement, or culpable negligence which is neither justifiable nor excusable homicide.

Aggravated manslaughter if the person who is killed is elderly person, child, disabled person or police, fireman, paramedic engaged in the course of his duties.

Question 32

Stalking

Answer 32

Misdemeanor Stalking is a willful, malicious, and repeated following or harassing of a victim.

Aggravated Stalking (Felony) willful, malicious, and repeated following, harassing, or cyberstalking a victim + a credible threat of death or bodily injury.

Cyberstalking is stalking via electronic communication that causes substantial emotional distress and serves no legitimate purpose.