Criminal Law Flashcards
What are the elements of conspiracy?
(i) an agreement between two or more persons;
(ii) an intent to enter into an agreement; and
(iii) an intent to achieve the object of the agreement.
Conspiracy is formed as soon as there is an agreement + substantial step.
What is the 2 guilty minds rule re conspiracy?
Conspiracy requires 2 guilty minds. If one person is only feigning interest, the other party may NOT be convicted of conspiracy.
Conspiracy = agreement + substantial step.
Does it matter if the principal crime was successful in regards to conspiracy?
No! The conspiracy is already formed before the principal crime is committed.
What is the general rule for ‘retreating’?
General rule: there is no duty for non-aggressor to retreat before using deadly force (in self defense).
BUT some states uphold the retreat doctrine (see other card).
What is the retreat doctrine?
Minority view (some states): retreat (by non-aggressor) is required before using deadly force IF the victim can safely do so (e.g. by walking away), unless:
- the attack occurs in the victim’s own home
- the attack occurs while the victim is making a lawful arrest; or
- the assailant is in the process of robbing the victim.
SO no retreat is necessary if it cannot be made in complete safety.
AND there is no obligation to retreat unless the defender intends to use deadly force.
What do Miranda rights require that a person in custody be informed of?
- He has the right to remain silent
- Anything he says can be used against his in a court of law
- He has a right to an attorney
- If he cannot afford an attorney, one will be appointed for him if he so desires.
When is a confession considered involuntary?
When there is official coercion or compulsion
Is a validly obtained confession (i.e. Miranda rights read) by police, rendered invalid when it is determined that the confessor is mentally unwell?
No! A statement is NOT considered involuntary when it is it the result of mental disease and there was no coercive police conduct in obtaining the statement.
In order to find that a confession is inadmissible based on involuntariness, there must have been some sort of coercion by the police to induce the statement.
When is a Miranda warning required?
Anyone in CUSTODY of govt and accused of a crime must be given Miranda warnings PRIOR to INTERROGATION by police.
Govt conduct = D knows he is being interrogated by a govt agent
Custody = is the person’s freedom of action denied in a significant way based on objective circumstances, (arrest = custody, routine traffic stop = not custody)
Interrogation = any words/conduct by police that they should know would likely elicit a response from the D, i.e. not required before a spontaneous statement by a D
Are Miranda warnings required for Terry stops?
No, Miranda warnings are not required for Terry stops (i.e. stop and frisk)
What is required for the right to stop? (Stop and frisk/Terry)
Police must have reasonable suspicion supported by articulable facts (not just a hunch) of criminal activity or involvement in a completed crime.
NOTE: if police also have reasonable suspicion to believe that the detainee is armed and dangerous, they may also conduct a frisk to ensure that the detainee has no weapons.
What are the requirements for a detention to be valid for a stop and frisk?
Police must act in a diligent and reasonable manner in confirming or dispelling their suspicions - detention must not be longer than necessary to do so.
When does double jeopardy attach at a jury trial?
At the empaneling and swearing in of the jury
When does double jeopardy attach at a bench trial?
When the first witness is sworn in.
What is felony murder? What are the required felonies?
Felony murder is any death caused during the commission/attempt to commit of one of the following felonies: burglary, arson, rape, robbery, kidnapping (BARRK)
If a D has been acquitted for rape but then the victim dies, can he be convicted of felony murder?
No - double jeopardy. The D has been acquitted of rape so you cannot use that charge again as the underlying crime in a felony murder charge as that puts him in jeopardy again.
IF a different theory of murder was used, the D may have been charged under that alternative theory. BUT you cannot charge a D with felony murder, using an acquitted charge as its basis - it violates DJ.
When might a a felony murder charge not be able to be brought under DJ?
If the felony murder charge arises from the same conduct or criminal transaction for which the defendant has already been acquitted or convicted, double jeopardy would likely preclude the additional charge. In other words, if the felony murder charge is based on the same facts as the original offense, it may be considered the same offense for double jeopardy purposes.
When do 2 crimes not constitute the same offense, for the purposes of DJ?
IF each crime requires proof of an additional element that the other crime does not require - even though some of the facts may be necessary to prove both crimes.
Does the attachment of jeopardy for a greater offense bar retrial for a lesser included offense? What about the other way around? What are the exceptions?
Yes! e.g. crime of robbery includes the two lesser crimes of larceny and assault. If a defendant is tried for robbery, they cannot be retried for the lesser included offense of larceny.
This also works VICE VERSA (attachment of jeopardy for a lesser included offense bars retrial for the greater offense)- i.e, if the D is first put in jeopardy for the lesser included offense (larceny), they cannot later be tried for the greater offense (robbery).
BUT there is an exception IF unlawful conduct that is subsequently used to prove the greater offense (1) has not occurred at the time of prosecution for the lesser offense or (2) has not been discovered despite DD.
AND a retrial for murder is permitted if the victim dies after attachment of jeopardy for battery.
What does ‘lesser included offense’ mean?
When a crime is classified as a lesser included offense, it means that commission of the greater offense necessarily involves commission of the lesser offense.
What is the doctrine of transferred intent?
The D can be liable under the doctrine of transferred intent when they intend the harm that is actually caused, but to a different victim or object. In such cases, the law transfers the original intent from the intended target to the actual victim.
The doctrine of transferred intent applies to homicide, battery, and arson. It does not apply to attempt.
A person found guilty of a crime on the basis of transferred intent is usually guilty of two crimes: the completed crime against the actual victim and attempt against the intended victim.
If a D is guilty of murder and attempted murder (from one act), do the charges need to be tried together?
NO! Each is an independent and separate offense.
Attempt does NOT merge (conspiracy and solicitation do)
Is motive behind a killing relevant to a murder charge?
Motive is NOT the same things as intent and will not excuse murder - it does not negate someone’s premeditation, deliberation and malice aforethought.
(Murder = unlawful killing with malice aforethought
Malice aforethought = killing with state of mind of:
i. intent to kill;
ii. intent to inflict great bodily injury;
iii. reckless indifference to an unjustifiably high risk to human life; or
iv. intent to commit a felony.)
What are the 2 core requirements for a facially valid search warrant? (the 2Ps)
- It be based on probable cause
- Particularity - it describes the place to be searched and the items to be seized.
What is the scope of the search in a stop and frisk?
Generally limited to a pat-down of the outer clothing for concealed instruments of assault.
BUT an officer may reach directly into an area of suspect’s clothing, without a preliminary frisk, if they have specific information that a weapon is being hid there - even if info comes from an informant’s tip lacking sufficient reliability to support a warrant.
When is FORCED entry into a home permissible?
It is permissible with (i) a valid SEARCH warrant; and (ii) when the person is believed to be inside and no response occurs.
It is not permissible with a valid ARREST warrant unless there is probable cause to believe the person named is on the premises.
In accomplice liability, who is the principal?
The principal is the person who commits the illegal act or who causes an innocent agent to do so.
What is an innocent agent?
When a person uses someone else to commit a crime on their behalf and the person being used is unaware of the criminal nature of their acts, the person being used is an innocent instrumentality/innocent agent.
What is required to be shown for robbery?
- A taking
- of personal property of another
- from the other’s person
- by force or threats of immediate death or physical injury to the victim/a family member/some other person in the victim’s presence
- with the intent to permanently deprive him of it
Robbery is different to larceny as it requires the D to use force/threats to get property.
Discuss the force/threats element of robbery
The victim must give up the property as a result of force used by the D or by threats made by the D. In the case of threats, the victim must give up the property because she feels threatened (not because she feels sorry for him or wants him to go away).
i.e. a pickpocket is guilty of larceny BUT if the victim notices the attempt and resists, it is robbery
What is needed for proof of ‘malice’. (i.e. a crime requires malicious intent).
Proof of malice does NOT need to be actual specific intent to kill or ham another. I can be implied from a D’s gross recklessness with regards to human life.
SO to show malice, the prosecution only needs to show that the D recklessly disregarded an obvious or high risk that the particular harmful result would occur.
What is specific intent?
What are specific intent crimes?
Crimes that require not only the doing of the act but the doing of it with a specific intent or objective.
I.e. with specific intent crimes you aim to produce a certain result. BUT if you aim to commit a specific action = general intent.
What are the malice crimes?
Common law murder and arson
What are the specific intent crimes and their requisite intent?
Solicitation - intent to have the person solicited commit the crime
Attempt - intent to commit the crime
Conspiracy - intent to have the crime completed
First degree premeditated murder - premeditated intent to kill
Assault - intent to commit a battery
Larceny and robbery - intent to permanently deprive another of his interest in the property taken
Burglary - intent at the time of entry to commit a felony in the dwelling of another
Forgery - intent to defraud
False pretenses - intent to defraud
Embezzlement - intent to defraud
What does larceny require to be shown?
A trespassory taking and carrying away of the personal property of another with intent to steal it/permanently deprive
Intent = at the time of the taking
Can a juvenile be convicted for life without parole?
No, it is a violation of the 8th amendment to impose mandatory life in prison without the possibility of parole on a person who was a minor when the crime was committed.
Minor = under the age of 18 at the time of the crime.
What are the requirements for the crime of false pretenses?
- obtaining title (ownership, not mere possession)
- to the property of another
- by a knowing false statement of past or existing fact (intentional false statements, not future)
- with intent to defraud the other (specific intent, victim must be deceived)
IF only custody of the property is obtained = larceny by trick
IF title is obtained = false pretenses
What is required for the crime of forgery?
Making/altering a document with purported legal significance (i.e. a doc that carries legal value - e.g. contract/check) to be false (alteration/creation - made to change legal significance of doc) with the intent to defraud (specific intent).
What does the Due Process clause require?
In all criminal cases, the govt must prove guilt beyond a reasonable doubt.
The prosecution must have the burden of proving each element of the crime charged.
However, the state may impose the burden of proof upon the D regarding an affirmative defense (e.g. entrapment).
What happens to the burden of proof with an affirmative defense?
The state may generally impose the burden of proof upon the defendant in regard to an affirmative defense, such as insanity/self-defense/duress/entrapment.
What may the prosecution do once a D has raised an affirmative defense?
The prosecution, in rebuttal is allowed to introduce evidence to disprove the defense.
When may a police officer make an automobile stop?
If a police officer has probable cause that a traffic law has been violated/reasonable suspicion to believe a law has been violated.
EVEN if the officer’s ulterior motive is to investigate a crime for which the officer lacks sufficient cause to make a stop.
What is the mnemonic for specific intent crimes?
Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts
S = Solicitation
C = Conspiracy
A = Attempt
F = Forgery
A= Assault
L = Larceny
E = Embezzlement
F = False Presences
R = Robbery
B = Burglary
F = First degree murder
What intent does an ‘attempt’ crime require? Does this stand even if the underlying crime doesn’t require it?
Attempt crimes require specific intent EVEN if the crime attempted foes not.
E.g. murder is NOT a specific intent crime - you just need a reckless disregard for human life BUT attempted murder requires specific intent to kill, without it, D is not guilty of attempted murder.
What is the requirements for establishing the crime of murder?
The unlawful killing of another human being with malice aforethought (express or implied).
What crimes require causation and why?
When a crime requires not merely conduct but also a specified result (e.g. death), the D’s conduct must be both the cause-in-fact and the proximate cause of the specified result.
Such as: homicide, assault and battery, robbery, arson
(for offenses involving physical harm, causation is often required as the prosecution must demonstrate that the D’s actions were the direct cause of the V’s injuries).
Sufficiency of the Evidence - what does it mean?
Due process is violated if, viewing all the evidence in the light most favorable to the prosecution, no rational judge/jury would have found the D guilty of the crime of which he was convicted.
Can a police officer order occupants out of a car as part of an automobile stop?
Yes! When a police officer has lawfully stopped a vehicle, in the interests of office safety, the officer may order the occupants (driver and passengers) out of the car.
Roadblocks
What is malice aforethought in relation to a murder charge?
- Intent to kill (express malice)
- Intent to inflict great bodily injury
- Reckless indifference to an unjustifiably high risk to human life (depraved heart); or
- Intent to commit a felony (felony murder)
2,3,4 = malice is implied
What are the elements of causation that must be proved for the relevant crimes?
- Cause in fact - but for
the result would not have occured ‘but for’ the D’s conduct
(death of V must occur w/in 1 year and 1 day from the infliction of the injury/wound - abolished by most states) - Proximate Cause
ONLY arises when the V’s death occurs because of the D’s acts but in a manner not intended/anticipated by the D - is the chain of proximate cause causation broken?
General rule: a D is responsible for all results that occur as a ‘natural and probable’ consequence of his conduct, even if he did not anticipate the precise manner they would occur.
When is the chain of proximate causation broken (for a V’s death)?
By the intervention of a ‘superseding factor’/intervening event.
General rule: an intervening act shields the D from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the D.
NB - a 3rd party’s negligent medical care or a victim’s refusal of medical treatment for religious reasons = both foreseeable risks.
What are the 3 types of murder at common law?
- Murder
- Voluntary manslaughter
- Involuntary manslaughter
What is the deadly weapon rule in murder? What is a deadly weapon?
Intentional use of a deadly weapon authorizes a permissive inference of an intent to kill.
A deadly weapon is any instrument (or in some circs, any part of the body) used in a manner calculated or likely to produce death or serious bodily injury.
e.g.
- drive a speedboat into a group of swimmers
- fire a bullet into a crowded room
- professional boxer beats up and kills someone
What is voluntary manslaughter?
A killing that would otherwise be murder but is distinguishable from murder by the existence of adequate provocation
i.e. a killing in the heat of passion
NOTE - with manslaughter, the jury will be instructed on both murder + manslaughter as they are crimes that would otherwise be murder but distinguished by the existence of another element.
What is ‘adequate provocation’ for the purposes of voluntary manslaughter?
4 tests:
1. Provocation must be one that would arouse sudden and intense passion in the mind of an ordinary person such as to cause him to lose his self control
2. D must have in fact been provoked
3. Must NOT have been a sufficient time between the provocation and the killing for passions for a reasonable person to cool
4. the D did in fact NOT cool off between the provocation and the killing
When is provocation most frequently seen as adequate for the purposes of VM?
Being subject to a serious battery or a threat of deadly force, and
Discovering one’s spouse in bed with another person.
‘mere words’ = often inadequate
What are the two types of involuntary manslaughter?
- Criminal negligence (or recklessness)
- Unlawful act manslaughter
What is the difference between depraved/abandoned heart murder and involuntary manslaughter based on negligence?
Depraved/abandoned heart murder involves a greater risk of death than involuntary manslaughter based on recklessness.
Depraved/abandoned heart murder - the recklessness is different - D must have a reckless indifference to an unjustifiably HIGH risk to human life.
Recklessness generally = only a substantial and unjustifiable risk.
What are the 2 subcategories of ‘unlawful act’ manslaughter
Unlawful act manslaughter - a killing caused by an unlawful act
2 subcategories =
1. Misdemeanor-manslaughter rule = a killing in the court of a commission of a misdemeanor = manslaughter
- Felonies not included in felony murder = killing caused during the commission of a felony but does not qualify as a felony murder case = manslaughter
(death must also be a foreseeable consequence of the felony)
What is first degree murder?
All murders are second degree unless the prosecution proves: there was a deliberate and premeditated killing.
Deliberate = D made the deicision to kill in a cool and dispassionate manner
Premeditated = the D actually reflected on the idea of killing, even if only v.brief.
What is the ‘imperfect self defense’ doctrine?
Recognized by some states - murder may be reduced to manslaughter even though:
1. D was at fault in starting the altercation; or
2. the D unreasonably but honestly believed in the necessity of responding with deadly force (so D’s actions do not qualify for self-defense).
What is needed for a claim of self defense in a murder charge?
Claim of SD will be successful against a murder charge if the action resulting in death is reasonably necessary to prevent imminent death or great bodily harm to D from the use of unlawful force.
i.e. the D must be:
1. without fault
2. confronted with unlawful force
3. reasonably believing that they are threatened with imminent death or great bodily harm
IF D was AT FAULT = imperfect self defense doctrine (reduction of murder to manslaughter)
What are the factors to analyze for an evidentiary search and seizure?
- Search/seizure right: Does the D have a 4th Amendment right (seizure by the govt concerning a place/thing in which the D has a reasonable expectation of privacy)?
OR does the search involve a physical intrusion into a constitutionally protected area? - Warrant: Did the police officers have a valid warrant?
(i.e. issued by a neutral and detached magistrate on a showing of probable cause and reasonably precise as to the place to be searched and the items to be seized?) - If the officers did NOT have a valid warrant, was the search/seizure w/in one of six exceptions to warrant req?
What must a person have in order to object to a governmental search?
Standing!
To have a 4th Amendment right, a person must have their own expectation of privacy with respect to the place searched or the item seized (determination made on the totality of the circs).
Person has a reasonable expectation of privacy any time:
1. The person owned/had a right to possession of the place searched
2. The place searched was in fact their home (whether or not they had a right to possession of it e.g. grandchild living at grandparent’s home).
3. The person was an overnight guest of the owner of the place searched.
