Criminal Law Flashcards

Question

"Attempt" defenses

Answer 1

- Withdrawal (generally not applicable) -Legal Impossibility

Answer 2

A claim that it is impossible to complete the crime because of some circumstances beyond the defendant's control. Compare to Factual impossibility - not a defense

Answer 3

An agreement between two or more people to commit either an unlawful act or a lawful act by unlawful means. Majority requires an overt act Specific intent is required to enter into the requisite agreement and to achieve the unlawful purpose. A conspiracy requires at least two (2) people have the meeting of the minds regarding their specific intent to agree and pursue the objective. States following the Wharton Rule required at least one more person than is necessary for the crime be involved for the conspiracy conviction.

Answer 4

1) Specific intent to enter an agreement 2) to achieve an unlawful objective. Modernly: An overt act by any one conspirator. Common Law: All you need is an agreement. Must have meeting of the minds - thus no conspiracy for undercover agents at common law. Merger: Does not merge

Answer 5

Where two or more people are necessary for the commission of the substantive offense (e.g. adultery), there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime.

Answer 6

Conspirators are agents of one another.

Answer 7

Allowed under Model Penal code, such that a party who agrees to commit the unlawful act can be convicted of conspiracy even if the other party lacks intent or does not agree to the conspiracy.

Answer 8

Act in furtherance of a conspiracy. MAJORITY: Agreement, plus an overt act. MINORITY: Agreement itself is sufficient for liability (common law)

Answer 9

Under Chain and Wheel conspiracies any independent conspiracy will not make other parties liable unless they are connected by the same party (pg 53)

Answer 10

May be a defense But 1) must inform ALL co-conspirators of withdrawal and 2) notice is given when there is time for others to withdrawal. Will not alleviate liability for foreseeable past crimes to further conspiracy.

Answer 11

The claim that it was impossible to complete the crime because of some circumstances is not a defense to conspiracy or attempt. Legal impossibility: Its not illegal so there is no crime. This is a defense.

Answer 12

1) An unlawful application of force 2) to the person of another 3) resulting in either bodily injury or an offensive touching. Need not be intentional or applied directly.

Answer 13

Two theories: 1) An attempted to commit a battery (specific intent) 2) An intentional creation of reasonable apprehension in victim of an immediate bodily harm (general intent)

Answer 14

Common Law: Dismemberment or disablement of a body part Modern: Includes permanent disfigurement. Others: Treated just as an aggravated battery rather than a separate offense.

Answer 15

Unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent (general intent). Slightest penetration completes crime of rape.

Answer 16

Sex with a minor (strict liability) Consent or Mistake of Fact (age) - not defenses

Answer 17

Unlawful confinement of a person wihtout valid consent. Model penal code requires confinement that substantially interferes with victims liberty

Answer 18

Unlawful confinement of a person that involves either: 1) some movement of the victim or 2) concealment of the victim in a secret place

Answer 19

Taking and carrying away personal property of another without consent and with intent to deprive permanently at time of taking - Picking up is enough - intent to deprive must be at taking - person taking only gets possession, not title. - larceny by trick - obtaining possession using false representations

Answer 20

Making or altering a writing so that it is false (must have intent to defraud)

Answer 21

Offering as genuine a forged instrument with intent to defraud.

Answer 22

Blackmail; future use/threat of force - Do not have to take anything - threats of future harm count

Answer 23

1) Receiving possession of stolen property 2) with knowledge that it was stolen NOTE: Knowledge is the mental state for most possession crimes

Answer 24

1) Destroying or Damaging someone else's property 2) with malice

Answer 25

Person with lawful possession engages in illegal conversion of personal property of another. Person taking it only gets possession, not title.

Answer 26

Taking and carrying away personal property of another without consent by force or fear. Person OR presence: Very broad Fear: Threat of imminent harm, can't be future harm

Answer 27

Conveyance of title through means of a false promise. False promise: Must be present or past, not future promise. Person taking gets title: Title = transfer property without intent to get it back

Answer 28

First Degree, Second Degree (common law murder), involuntary manslaughter and voluntary manslaughter All murders are second degree unless the prosecution can prove deliberation and premeditation

Answer 29

First Degree murder occurs when the defendant possesses 1) a specific intent to kill that was also 2) premediated and 3) deliberate Intentional Killing Predmediation Deliberation Defenses

Answer 30

Requires merely a moment's reflection upon the killing

Answer 31

the comiting of the killing in a cool and dispassionate manner

Answer 32

A person is guilty of first-degree felony murder if she/he kills another person during the commission of an enumerated felony (BARRK) Burglary, Arson, Rape, Robbery, and Kidnapping. Malice is implied by the defendant's intent to commit the felony.

Answer 33

Second-Degree felony murder; 1) the act of homicide, 2) which is the actual and proximate cause of the victim's death and 3) malice. Act Cause Malice x 4 Defenses

Answer 34

Intent to kill, Intent to inflict great bodily injury, reckless indifference to an unjustifiably high risk to human life, felony-murder rule. Malice is a substitute for Specific intent

Answer 35

Cause in Fact and Proximate cause

Answer 36

Murder is the killing of another with malice aforethought.

Answer 37

Any death caused during the commission of, or in the attempt to commit a felony is murder. Malice is implied by the defendant's intent to commit a felony.

Answer 38

Malice aforethought is implied if a person's conduct manifests an extreme indifference to the value of human life. Also known as an abandoned, malignant, or depraved heart murder.

Answer 39

- Defendant must be guilty of the underlying felony - Inherently dangerous felony (BARKK - Burglary, Arson, Robbery, Mayhem Kidnapping) - Distinct from the killing (independent of the felony) - Foreseeability -During the Commission of the felony - Temporal and geographical proximity Malice is implied by the defendant's intent to commit a felony.

Answer 40

Third-party killings: - Most jurisdictions; Defendant is not liable for felony murder when a co-felon is killed. - Killing by a non-felon Agency Theory; the defendant is not liable for the death of a third party or innocent bystander unless the death is caused by the defendant or his or her agent (accomplice). - Proximate Cause theory; defendant may be liable.

Answer 41

An intentional killing will be reduced to voluntary manslaughter by a provision that arouses a killing in the heat of passion. 1) A provocation that would arouse intense passion in the mind of an ordinary person; 2) the defendant in fact was provoked; 3) no reasonable time for the defendant to cool between the provocation and the killing, and 4) the defendant in fact did not cool. *** Words alone do not constitute adequate provocation. Insulting words may, however, in some jurisdictions.

Answer 42

A murder will be reduced to involuntary manslaughter if it was 1) committed with criminal negligence (grossly negligent), or 2) during the commission of a misdemeanor.

Answer 43

A person who kills another recklessly is guilty of manslaughter. Criminal negligence involuntary manslaughter occurs when the defendant was aware of the risk of death.

Answer 44

An accidental homicide that occurs during the commission of an unlawful act not amounting to a felony (or, at least, not amounting to a felony that would trigger the felony murder rule) constitutes involuntary manslaughter.

Answer 45

Under the 4th Amendment which is applicable to the states under the 14th Amendment, there can be no unreasonable search or seizure. In order to bring a suit for a 14th Amendment violation the claimant must be establish 1) government conduct and 2) standing.

Answer 46

Breaking and entering of a dwelling house, of another, at night with intent to commit a felony inside 1. Breaking (actual or constructive however slight). - Going through an open door not enough but opening an interior door would work. 2. Entering - anytime body crosses at all 3. Dwelling house: A place where regularly sleep; not barns etc. 4. Night: Only at common law, modern situations eliminate 5. Intent to commit felony inside: * Must exsist at time of breaking and entering

Answer 47

Malicious burning of the dwelling house of another (malice).

Answer 48

Must be burning or charring (material wasting of building fiber by fire). Not blacking, scorching (discoloration), smoke damage, or explosion.

Answer 49

The intentional taking of a false oath in regard to a material matter (one that may affect the outcome) in a judicial proceding.

Answer 50

The corrupt payment or receipt of anything of value for official action. Modernly: it may be extended to nonpublic officials and either the offering of a bribe or the taking of a bribe may constitute the crime.

Answer 51

Insanity - Defense to ALL crimes, including strict liability crimes. Several formulations of the test. - All defendants are presumed sane; the defendant must raise the insanity defense. -Pretrial Psychiatric Examination: If the defendant does not raise the insanity issue, s/he may refuse a court-ordered psychiatric examination to determine his/her competency to stand trial. However, if the defendant does raise the insanity defense, s/he cannot refuse the court-ordered test. Involuntary Intoxication: Defense to all crimes, including strict liability. Examples include taking without knowledge, under direct duress, or pursuant to medical advice. Infancy -Under 7: No liability for an act committed by a child under age seven. Defense to all crimes. b. Age 7 to 14: Rebuttable presumption that the child was unable to understand the wrongfulness of his/her acts. (On the Bar, never really the right answer as a defense). Intoxication - Caused by substances (drugs, alcohol, medicine). An intoxication defense may be raised by defendant to negate intent.

Answer 52

Defense to all crimes Tests: M'Naghten Rule, Irresistible Impulse test, Durham (New Hampshire test), Model Penal Code Test.

Answer 53

Lacked the ability to know the wrongfulness of actions or did not understand the nature and quality of actions.

Answer 54

Unable to control actions or conform to conduct to law

Answer 55

Conduct was product of mental illeness

Answer 56

Lacked substantial capacity to either appreciate the criminality of conduct or to conform conduct to the law.

Answer 57

Right to a grand jury for capital and infamous crimes Prohibition against excessive bail

Answer 58

An arrest occurs when police take a person into custody against his or her own will for the purposes of prosecution and/or interrogation. The inquiry is whether a reasonable person would feel they are being held against their will.

Answer 59

Reasonable grounds to believe a suspect has committed or is committing a crime or that the place to be searched contains specific items connected with a crime. Must be more than mere suspicion and established before an arrest warrant or search warrant may be issued.

Answer 60

A temporary restraint that prevents a person from walking away - requires only reasonable suspicion

Answer 61

To object to the legality of a search a defendant must have standing, which means having a reasonable expectation of privacy in the places searched or items seized by the police officer. One does not have standing in those things held out to the public (i.e. sound of voice, garbage cans on street).

Answer 62

Minority- A subjective expectation Majority - Whether society is willing to accept the expectation of privacy as reasonable.

Answer 63

No privacy rights in things held out to the public

Answer 64

Passengers in a detained vehicle are seized for 4th Amendment purposes BUT has no standing to object to a search unless they have a reasonable expectation in the area actually searched (e.g. - their personal purse).

Answer 65

- Issued by a neutral magistrate - Showing of probable cause - valid affidavit Reasonably precise on its face as to the places to be searched and items to be seized -the magistrate was given enough info to make a common sense evaluation based on the totality of the circumstances

Answer 66

BASE PICS -Border checkpoints (includes Sobriety, Border, TSA, Drug) but know that each one has slightly different rules - Automobile Exception - Stop and Frisk - Exigent Circumstances - Plain View Doctrine - Inventory Search - Search incident to a lawful arrest

Answer 67

Police need probable cause to justify the search and no warrant is required. Police may search the entire car or is limited to where ever the evidence may reasonably be found.

Answer 68

No liability for an act committed by a child under age seven. Defense to all crimes. Ages 7 to 14: Rebuttable presumption that child was unable to understand the wrongfulness of his acts. (Rarely the correct answer on Bar).

Answer 69

Voluntary Intoxication - Defense only to specific intent crimes (negates intent). Includes addicts and alcoholics. Involuntary intoxication - Defense to all crimes because it is a form of insanity.

Answer 70

May be used anytime victim reasonably believes unlawful force is about to be used on them immediately and may only use force that is reasonable. *heavily tested*

Answer 71

Majority rule is that may be used anytime victim reasonably believes deadly force is about to be used against them. Minority rule: Requires victim to retreat, if safe, prior to deadly force. Exceptions: No duty to retreat 1) from home, 2) if victim of rape or robbery or 3) if you are a police officer.

Answer 72

Do not give them back self-defense, unless 1) they withdraw and original victim comes after them, or 2) original victim unreasonably escalates situation new level (i.e non-deadly --> deadly).

Answer 73

Can use force anytime the other person could use it. All that is necessary is the reasonable appearance of the right to use the force.

Answer 74

Non-deadly force can be used to prevent a felony when it appears reasonably necessary. Deadly force is permitted to prevent a dangerous felony involving a risk to human life.

Answer 75

Non-deadly force can be used to prevent what is reasonably regarded as an unlawful entry into or attack on one's dwelling; however, one may never use deadly force soley to defend property.

Answer 76

It is a defense to a crime if the person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime. Objective test. A good faith belief is not sufficient.

Answer 77

Mistake of Fact: Specific intent crimes - is a defense General intent crimes - Only reasonable mistakes of fact are a defense Strict liability - never a defense

Answer 78

Almost never a defense and definitely not a defense to crimes of serious bodily injury.

Answer 79

Defense to a crime (other than homicide) if reasonable belief of imminent death or great bodily harm upon defendant or member of defendant's family.

Answer 80

The law enforcement official, or someone cooperating with him/her, induces the defendant to commit the crime; and b. The defendant was not predisposed to commit the crime prior to contact by the government. (Predisposition by a defendant negates entrapment.) c. Note: Entrapment is hardly ever a correct answer on the MBE because it is hard for a defendant to establish.

Answer 81

An action under the Fourth Amendment is a search if it 1) violates a subjective expectation of privacy by the defendant 2) which society is prepared to recognize as reasonable. if the actions were a search, it would be presumptively unconstitutional

Answer 82

1) Non-discriminatory manner and 2) administratively related. Can't use it for the purposes of finding contraband.

Answer 83

Where a person kills in self-defense as a result of an unreasonable believe that they faced deadly force against them, murder charges can be reduced to charges of voluntary manslaughter.

Answer 84

The unreasonable search or seizure must have been conducted by someone working for the government.

Answer 85

IN order to have a valid search under the 4th Amendment, the police must have a valid warrant or there must be a valid exception to the warrant requirement.

Answer 86

There must be an affidavit to a neutral and detached magistrate.

Answer 87

The warrant must describe with particularity the place(s) to be searched and or the items to be seized.

Answer 88

Under the automobile exception, states may allow the warrantless search of an automobile, if the officer reasonably believes that the vehicle holds evidence of a crime. The US Supreme Court has determined that this exception is not a violation of the 4th Amendment since drivers have a reduced expectation of privacy and a vehicle is inherently mobile. The scope of the search is limited to only where the officer has probable cause to believe the item will be found.

Answer 89

Under Gant, a search incident to a valid arrest can only occur when (1) the arrested person is unsecured and within reaching distance of the passenger compartment at the time of the search, or (2) the police can conduct such a search when it is reasonable to believe that evidence relevant to the crime for which the occupant was arrested might be found. (i.e., If the police arrest a defendant for cocaine possession it is probably reasonable to search inside the car for narcotics.)

Answer 90

A lawful arrest is one in which the police have probable cause to arrest.

Answer 91

Police can search a car following a lawful arrest only if they have a reasonable belief that the person arrested could have accessed his car at the time of the search. * Note: Police can search the entire car, but not the trunk here.

Answer 92

Police can search the car for evidence of the offense for which the defendant was arrested. * Clarity on this Rule: Thus, if there is a lawful arrest, the police may only search the car if the defendant is still unsecured, (i.e., not in the police car yet and may still be able to access his car) or if the police search for evidence related to why the defendant was arrested in the first place. * Note: Under Search Incident to Arrest, the police can make a protective sweep if they believe there may be accomplices in the area.

Answer 93

In order for the police to search incident to an arrest the search must be contemporaneous in place and time to the arrest. This search is limited to only the person arrested and the area immediately surrounding the person (i.e., the person’s "wingspan”) in which the person may gain possession of a weapon, in some way effect an escape, or destroy or hide evidence.

Answer 94

Generally, a police officer does not need a warrant to search a car if s/he has lawfully seized a person’s car and is inventorying the content of the vehicle.

Answer 95

When officers, in the course of a bona fide effort to execute a valid search warrant, discover articles which, although not included in the warrant, are reasonably identifiable as contraband, they may seize them whether they are initially in plain sight or come into plain sight subsequently, as a result of the officers’ efforts.

Answer 96

Generally, officers must obtain consent to search from a person who has a reasonable expectation of privacy in the item to be searched. The consent must be voluntary and intelligent based on the totality of the circumstances.

Answer 97

Sometimes, two or more people (i.e., spouses or roommates) share a reasonable expectation of privacy in the same place. In such a situation, either may provide valid consent in the absence of the other, or when both parties are present and neither voices an objection. * However, if more than one person with an expectation of privacy in the area to be searched is present and one objects, then the area cannot be searched without a search warrant or exigent circumstances.

Answer 98

Either spouse may consent to a search of a property that they share, unless, both spouses are present at the time of the search, and one voices an objection. In any event, one spouse may not consent to the search of a place where the other spouse clearly has exclusive private interests.

Answer 99

Either roommate may consent to a search of a property that they share, unless, both roommates are present at the time of the search, and one voices an objection.

Answer 100

Generally, a parent has authority to consent to a search of a child’s room (although this authority is less likely to be held if the child is not a minor) unless the child has established exclusive use and access to his or her room that would negate a parent’s authority to consent to a search there. * Parents may not have the authority to consent to a search of personal possessions if the child has exclusive access and use of those items (i.e., locked containers or diary). Generally, a minor child cannot consent to a search of his or her parents’ home.

Answer 101

An overnight guest in another’s home has a legitimate expectation of privacy despite the fact that he or she does not have the authority to determine who may or may not enter the household. The permanent resident of the premises may consent to a search anywhere within his or her own home, except for the guest’s bedroom and the guest’s personal belongings.

Answer 102

The border search exception permits government officials to conduct ‘routine’ searches at border entry points based on no suspicion of wrongdoing whatsoever. On the other hand, when warrantless border searches are particularly invasive, and thus ‘non-routine,’ they are permissible only when customs officials have, at a minimum, a “reasonable suspicion” of wrongdoing.

Answer 103

Police may stop a suspect so long as there is a reasonable suspicion of a criminal act. The evidence necessary for “reasonable suspicion” here is something beyond mere suspicion, but is less than the level required for probable cause. If there is reason to believe that the person may be armed and dangerous, the police can also frisk the suspect. * Note: If during the pat down or frisk officers believe based on plain feel that a weapon and/or contraband is present, they may reach inside the suspect’s clothing to remove it, but police must have probable cause to reach inside.

Answer 104

Evidence that can be easily moved, destroyed or otherwise made to disappear before a warrant can be issued may be seized without a warrant. Furthermore, if a suspect enters private property while being pursued by officers, no warrant is required to enter that property in order to continue pursuit, even if the suspect is in no way connected with the property owner.

Answer 105

All evidence obtained from an illegal search and seizure is inadmissible in violation of the Fourth Amendment under the Exclusionary Rule.

Answer 106

There are certain exceptions where even if the search was unreasonable, the evidence may still be admissible. Good Faith: Illegally obtained evidence will not be excluded if (1) The police rely in good faith on a judicial opinion later changed by another opinion; (2) The police rely in good faith on a statute or ordinance later declared unconstitutional or (3) Where police have good-faith reliance on a defective search warrant. Impeachment: All illegally seized evidence may be used to impeach the credibility of the defendant’s trial testimony where the defendant testifies in a manner inconsistent with the unconstitutionally obtained evidence. **If there is no fruit of the poisonous tree evidence, conclude whether the evidence should be admitted under the Exclusionary Rule. However, if there is “fruit of the poisonous tree” evidence trying to come in, go to the next analysis.

Answer 107

If the Exclusionary Rule applies, all evidence obtained as a result of the illegal search and seizure will also be excluded. However, there are exceptions where the fruit of the poisonous tree evidence may still be admitted. Inevitable Discovery Intervening Acts Violations of Miranda Independent Source Rule

Answer 108

Fruit of the Poisonous Tree evidence will not be excluded where police would have discovered the evidence anyhow without the illegal search. It needs to be established by a preponderance of the evidence that the evidence inevitably would have been discovered.

Answer 109

Fruit of the Poisonous Tree evidence will not be excluded where it was derived from an act of free will by the defendant, between the illegal police action, and the derived information.

Answer 110

There will be no Fruit of the Poisonous Tree exclusion for real or physical evidence obtained as a result of a Miranda violation.

Answer 111

Evidence from a source independent of the original illegality will not be excluded under the Fourth Amendment.

Answer 112

If illegal evidence is admitted and results in conviction, on appeal it should be overturned unless the prosecution can show harmless error, which is measured by beyond a reasonable doubt standard.

Answer 113

Search of Item/Place Government Conduct Standing Warrant Warrant Exceptions Exclusionary Rule Consider: Fruit of the Poisonous Tree Harmless Error Test

Answer 114

5th Amendment Miranda 6th Amendment Right to Counsel 14th Amendment Voluntariness 4th Amendment Fruit of the Poisonous Tree

Answer 115

In order for a confession to be admissible under the Fifth Amendment Privilege against Self-Incrimination, a person in custody must, prior to interrogation, be informed, with the following words: “You have the right to remain silent, anything you say can be used against you, you have the right to an attorney, and you have the right to terminate the interrogation.” In order for the Miranda warning to be triggered, the person must be in (1) custody and (2) there must an interrogation. There are also exceptions. Headings: Fifth Amendment: Miranda Custody Interrogation Exceptions: Waiver Spontaneous Statement Impeachment

Answer 116

An individual is in custody if at the time of the interrogation or questioning by the police a reasonable person would not believe that s/he was free to leave. Note: Avoid jumping to conclusions that a defendant is not free to leave merely because s/he is in a police car or a jail cell.

Answer 117

An interrogation is any conduct that the police knew or should have known was likely to elicit a damaging response from the defendant.

Answer 118

An individual’s right to Miranda warnings may be negated by a valid waiver, spontaneous statement or if it is being used for impeachment purposes. ○ Only discuss exceptions that apply, and headnote and underline each separately.

Answer 119

A valid waiver must be knowing, intelligent, and voluntary. A defendant’s silence after being read his or her Miranda rights does not constitute a valid waiver.

Answer 120

A spontaneous statement is a statement made by a person in response to a startling or shocking event or condition, made while still under the stress of excitement from the event or condition.

Answer 121

Prior statements inconsistent with a declarant-witness' present testimony may be used to impeach his or her credibility because such inconsistencies tend to show that the declarant-witness' current testimony is not credible.

Answer 122

Under the Sixth Amendment Right to Counsel, after judicial proceedings have begun (formal charges), police may not deliberately elicit incriminating statements from a defendant outside the presence of counsel after the defendant has been charged unless he or she waives his or her right to counsel. Moreover, the Sixth Amendment Right to Counsel is offense specific. Headings: 6th Amendment Right to Counsel Formal Charges Offense Specific Exceptions

Answer 123

A criminal defendant has an automatic right to counsel under the Sixth Amendment after formal charges have been brought against him or her. Thus, where a defendant’s Sixth Amendment Right to Counsel has automatically attached, the police may not interrogate him or her related to the charged offense and any confession obtained subsequent to the formal charge will be inadmissible.

Answer 124

● After any prosecution resulting in imprisonment or juvenile proceedings which could lead to imprisonment; ● Parole or probation revocation hearings on a case-by-case basis; ● Post charge line-ups or show-ups; ● Trial, plea, sentencing, custodial interrogation by police; ● Post-indictment interrogation by police or their agents; and ● Preliminary hearings.

Answer 125

The Sixth Amendment is offense-specific, i.e., the interrogation that is the subject of the Sixth Amendment inquiry must relate to the crime for which criminal proceedings have commenced. The Sixth Amendment right to counsel does not attach to other crimes for which the accused may be under investigation, but which are unrelated to the pending prosecution.

Answer 126

Same as Miranda: An individual’s right to Miranda warnings may be negated by a valid waiver, spontaneous statement or if it is being used for impeachment purposes.

Answer 127

Under the Fourteenth Amendment Due Process Clause, a self-incriminating statement is only admissible if it was voluntary and not the result of official compulsion as determined by the totality of the circumstances.

Answer 128

A statement will be involuntary only if there is some official compulsion Exception: Harmless Error Test: If an involuntary confession is admitted into evidence, the conviction need not be overturned if there is overwhelming evidence of the defendant’s guilt.

Answer 129

A confession that is obtained after an illegal search may be the fruit of the poisonous tree, or “fruit” of the illegal search, and thus, it is inadmissible under the Fourth Amendment.

Answer 130

The prosecutor PACED as his charges against defendant fell like DOMINOS Property - Defense of Age (7-13 rebuttable presumption child did not understand) Entrapment Duress Drunkenness Other party consented Mistake of fact Insanity Necessity - avoid a greater evil Others - Defense of Self-Defense

Answer 131

1. Matt guilty of underlying felony 2. Distinct from killing 3. Foreseability 4. During commission of felony and not after it was concluded (temproral and geographical proximity + casual relationship) 5. Defenses (ie imperfect self defense) Transition paragraph --> Matt for FM in 2nd

Answer 132

1. Matt for First Degree Murder Specific Intent Premediation - Mere moments reflection Deliberation - Cool and dispasionate Defenses 2. Matt for Common Law murder (second degree form) Act Causation Malice (4) - Intent to kill - Intent to inflict great bodily harm - reckless disregard - Felony Murder Defenses 3. Matt for Voluntary Manslaughter (second degree form) Sufficient provocation was in fact provoked no reasonable time to cool did not in fact cool defenses 4. Matt for involuntary manslaughter (second degree form) a. criminal negligence b. misdemeanor manslaughter defenses

Answer 133

Formal Charges Offense Specific Exceptions

Answer 134

a. The plea was involuntary (some mistake in plea taking ceremony); b. Lack of jurisdiction; c. Ineffective assistance of counsel; and d. Failure of the prosecutor to keep an agreed upon plea bargain.

Answer 135

Four Basic Attacks: 1. 6th Amendment Right to Counsel - A suspect has the right to counsel at any post charge lineup or showup 2. Denial of Right to Due Process - If ID is unnecessarily suggestive and there is a substantial likelihood of misidentification - Remedy: Exclude the ID but government can defeat exclusion if there is an adequate independant source. 3. Fifth Amendment: Protects only testimonial, not real or phyisical evidence. No fifth amendment right to refuse 4. Fourth Amendment: Defendant was illegally detained thus furit of the illegal detention.

Answer 136

Courts that follow the agency theory will hold that a defendant is not liable for the death of third party unless it is done by the defendant or the defendant’s accomplice.

Answer 137

Courts that follow the proximate theory will hold the defendant liable for a co-felon’s death unless the death is by a victim or police officer in an attempt to stop the felon from fleeing the scene or committing further crimes.

Answer 138

Murder is the killing of another with malice aforethought. Malice aforethought exists where there is either: 1) intent to kill; 2) intent to cause great bodily harm; 3) reckless indifference to an unjustifiably high risk to human life; 4) or during the commission or attempted commission of a felony.

Answer 139

There is sufficient provocation when the defendant is ignited with intense passion which would provoke the mind of an ordinary person to lose self-control.

Answer 140

The person who actually engages in the act or omission is the principal and any other parties are accomplices. Accomplices are liable for the crime and all foreseeable crimes that happen afterwards, Accomplices must be actively involved in the crime and not merely present. Accessories must give aid, counsel or encouragement with intent to encourage the crime. Merely having knowledge of the crime or silent approval is not enough.

Answer 141

The principal must be convicted for the accessory to be convicted. Principals can be first or second degree if they actually engaged in the crime or merely assisted in the crime without participating. Accessories can be before or after the fact if they assist the principal knowing that the principal has committed a felony to help the principal escape.

Answer 142

All parties to a crime can be found guilty of the principal offense. An accessory after the fact is not guilty of the primary crime, and they are often guilty of a lesser offense.

Answer 143

A party who effectively withdraws before a crime is committed and before the crime is unstoppable cannot be guilty as an accomplice. If the party’s participation goes beyond mere encouragement, then withdrawal requires attempts to neutralize the crime. Parties cannot withdraw from solicitation, conspiracy, or attempt.

Answer 144

Aggravated kidnapping is kidnapping with the intent to commit a further crime.

Answer 145

Receiving stolen property with knowledge of its unlawful obtaining and the intent to permanent deprive the owner.

Answer 146

Involuntary intoxication is a defense to all crimes as a form of insanity. Voluntary intoxication is only a defense to specific intent crimes.

Answer 147

Mistake of fact is a defense to specific intent crimes. Reasonable mistakes may be a defense to malice or general intent crimes. However, mistake of fact is never a defense to strict liability. Mistake of law may negate the specific intent requirement.

Answer 148

A defendant can attack the identification if it is unnecessarily suggestive and there is a substantial likelihood of misidentification.

Answer 149

The defendant has a right to a speedy trial. When determining whether a post-arrest delay has violated the defendant’s due process, the courts will look to the totality of evidence including the length and reason for delay, whether the defendant has asserted their right to a speedy trial, and whether prejudice towards the defendant has occurred.

Answer 150

Prior testimonial evidence may not be admissible unless the declarant is unavailable and the defendant had an opportunity to cross-examine the declarant at the time the statement was made.

Answer 151

Defendant has the right to effective assistance of counsel under the 6th Amendment. When determining whether counsel is defective, courts will look to whether performance was unreasonably deficient, and whether the outcome of the matter would be different without the defective performance.

Answer 152

A guilty plea waives the right to a jury trial. If a defendant pleads guilty, the court must specifically address the defendant on the record regarding the following: 1) the nature of the charge; 2) the maximum authorized penalty and mandatory minimum penalty; 3) right to plead not guilty and demand a jury trial; 4) the judge must ask whether the defendant has been coerced; and this must all be on the record.

Answer 153

Incompetency is a bar to trial. Court’s will look to the defendant’s mental condition at the time of trial. If the defendant later gains competency, they can be tried and convicted. The defendant is incompetent to stand trial if they 1) lack rational basis and understanding of the charges, or 2) lacks sufficient present ability to consult with an attorney with a reasonable degree of understanding.

Criminal Law Flashcards

(177 cards)