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Flashcards in Criminal Law & Procedure Deck (51)
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1
Q

MPC fault standards

A

Purposely: conscious object to engage in proscribed conduct
Knowingly/willfully: awareness that contact is of a particular nature or will cause a particular result
Recklessly: knowledge of a substantial and unjustifiable risk and conscious disregard of it
Negligently: failure to be aware of a substantial risk

2
Q

Accomplice liability

A

Principal: commits illegal act (or causes innocent agent to do so); liable for principal crime

Accomplice: with intent crime be committed, aids, counsels, or encourages principal to do so; liable for principal crime and other foreseeable crimes

Accessory after the fact: aids another to escape knowing that he’s committed a felony; liable for separate crime of obstructing justice or being an accessory after the fact
- Sometimes exceptions for family members.

3
Q

Solicitation

A
  1. Inciting, counseling, advising, urging, or commanding another to commit a crime
  2. With the intent that the person solicited commit the crime

Vicarious liability: if party solicited commits requested crime, solicitor also be liable for the crime.

Defense: legislative intent to exempt solicitor (e.g., woman who solicits man to transport across state lines)

4
Q

Conspiracy

A
  1. Agreement with another for an unlawful objective (could be tort)
    - MPC: unilateral agreement possible
    - Wharton’s rule: if target crime requires two parties (e.g., dueling), no conspiracy w/p three or more parties
  2. Overt act in furtherance of objective (not required at common law)
  3. Specific intent to (i) enter agreement and (ii) achieve objective

Vicarious Liability: All conspirators liable for any crime committed by co-conspirator if crime (i) reasonably foreseeable and (ii) in reasonable furtherance of the conspiracy.

5
Q

Conspiracy - defenses

A

Factual impossibility: no defense
Legal impossibility: defense
Withdrawal: must timely (i.e., before crime) communicate to all co-conspirators that no longer a participant
- Conspirator not liable for subsequent crimes but remains liable for conspiracy, unless, under MPC, withdrawal thwarts conspiracy

6
Q

Attempt

A
  1. Act of perpetration
    - Trad.: proximity test – “dangerously close”
    - MPC: “substantial step”
  2. With the intent to commit the target crime
7
Q

Attempt - defenses

A
Factual impossibility: no defense
Legal impossibility: defense
Abandonment --
Trad.: no defense
MPC: fully voluntary and complete abandonment is a defense
8
Q

Legal and factual impossibility

A

Legal impossibility: acts defendant intends to commit are not a crime in the jurisdiction

Factual impossibility: acts defendant intended to commit would be a crime, if the facts were as defendant believed them to be

9
Q

Insanity defenses

A

M’Naghten: as a result of mental defect, (1) did not know the wrongfulness of his act OR (2) could not understand the nature and quality of his acts.
- Focuses on your HEAD

Irresistible impulse: as a result of mental defect, was unable to control conduct or conform conduct to the law.
- Focuses on body or, for ease of remembering, SHOULDERS

ALI/MPC: lacked substantial capacity either (1) to appreciate wrongfulness of conduct or (2) to conform conduct to requirements of law
- Focuses on HEAD and SHOULDERS

Durham/NH: crime was the product of a mental disease or defect.

10
Q

Intoxication defenses

A

Voluntary: defense to specific intent crime if prevents formation of required intent

Involuntary (unknowing, under duress, pursuant to medical advice): treated as mental illness; may be defense to all crimes

11
Q

Infancy defense

A

Under age of 7: No criminal liability.
Between 7 and 14: Rebuttable presumption of no criminal liability.
Over 14: Treated as an adult.
- On essay, note that all states have own juvenile justice system and take defendants on their own facts and circumstances.

12
Q

Justification - self-defense - non-deadly force

A

May use force reasonably necessary to protect from the imminent unlawful use of force against oneself; no duty to retreat

13
Q

Justification - self-defense - deadly force - in general

A

May use deadly force if:

  1. Without fault
  2. Confronted with unlawful force
  3. Threatened with imminent death or great bodily harm
  4. MINORITY: Retreat, unless –
    i. Attack is in victim’s home
    ii. Attack occurs while victim making lawful arrest
    iii. Attacker is robbing victim (lecture: or committing any violent felony)
14
Q

Justification - self-defense - deadly force - use by initial aggressor

A

May use deadly force if:

  1. Effectively withdraw and communicate to other desire to do so
  2. Initial victim suddenly escalates and no chance to withdraw/retreat (if chance, must take it)
15
Q

Justification - defense of others

A

Can use deadly force if reasonable and necessary to defend another
If mistaken as to 3P’s right to self defense –
Majority: Reasonable mistake allowed
Minority: Reasonable mistake not allowed; can use no more force than 3P allowed

16
Q

Justification - crime prevention

A

A police officer or private person may use deadly force if reasonably necessary to prevent the commission of a dangerous felony; reasonable mistake allowed

17
Q

Justification - apprehension/arrest

A

A police officer or private person may use deadly force if reasonably necessary to prevent apprehend/arrest a dangerous felon

Private citizen not entitled to reasonable mistake; may use deadly force only if person apprehended with deadly force actually guilty

18
Q

Justification - defense of dwelling/property

A

Generally, cannot use deadly force to protect home or other property.
- Exception: can use protect occupants of home from violent intruder or if intruder intends to commit a felony inside

19
Q

Criminal homicide - in general

A

Unlawful killing of another human caused by the defendant

  • Murder: homicide with malice aforethought
  • Voluntary manslaughter: murder with adequate provocation
  • Involuntary manslaughter: homicide without malice
20
Q

Criminal homicide - death “caused by” defendant

A
  • Defendant acted alone to cause death.
  • Defendant’s omission caused death and defendant by statute, contract, relationship or voluntary undertaking had a duty to act.
  • Act of a third party contributed to cause death.
  • Death was a foreseeable result of defendant’s act or omission.
21
Q

Criminal homicide - murder - malice

A
  1. Intent to kill [can be first degree murder]
    - Defendant’s words
    - Deadly weapon doctrine: Use of a deadly weapon in a deadly manner.
  2. Intent to inflict great bodily harm
  3. Depraved heart: Reckless indifference to a known high risk of death or serious bodily injury
  4. Felony Murder Rule: Homicide committed during the perpetration of an an inherently dangerous felony [can be first degree murder]
22
Q

Criminal homicide - murder - felony murder

A

Homicide committed during the perpetration of an an inherently dangerous felony

  1. During the perpetration: From attempt until felon reaches a place of temporary safety.
  2. Inherently dangerous felonies: Burglary, Arson, Rape, Robbery and Kidnapping (BARRK)
    - Minority: non-dangerous felonies committed in a dangerous manner
  3. Felony must be independent from the act that caused death.
  4. A defense to the felony is a defense to a felony murder charge.
  5. Vicarious liability: All felons are liable for death caused by a co-felon
    - Generally, no liability if non-felon kills felon.
    - Majority: proximate cause theory - liability if non-felon kills another non-felon
    - Minority: agency theory - no liability if non-felon kills another non-felon
  6. Proximate cause: The felony must be the proximate cause of the homicide (i.e., homicide foreseeable result of felony).
23
Q

Criminal homicide - murder - degrees of murder

A
  1. First Degree:
    a. Premeditated and deliberate intent to kill
    b. Felony Murder: a murder that satisfies the felony murder rule AND is based on felony specified in state’s first degree murder statute (usually BARRK)
  2. Second Degree: all other murders
24
Q

Criminal homicide - murder - voluntary manslaughter

A
  1. Provocation
    - Subjective and objective heat of passion
    - Subjective and objective absence of cooling off
  2. Good faith mistake/imperfect self-defense
    - Victim killed under good faith, but unreasonable belief as to self-defense, defense of others, or crime prevention.
25
Q

Criminal homicide - murder - involuntary manslaughter

A
  1. Intent to inflict slight bodily injury
  2. Criminal negligence
  3. “Misdemeanor-Manslaughter”
    - Defendant kills while committing a non-inherently dangerous felony (i.e., not sufficient for felony murder rule) or a malum in se as opposed to a malum prohibitum crime.
26
Q

Receipt of stolen property

A
  1. Receiving possession and control
  2. Of stolen personal property
  3. Known to have been obtained criminally
  4. By another person
  5. With intent to permanently deprive
    - If police are using recovered property in sting w/ owner’s permission, no longer “stolen”; crime is attempted receipt of stolen property
27
Q

Forgery

A
  1. Making or altering
  2. Writing with apparent legal significance
    - E.g., contract, not painting
  3. So that it is false
    - Must represent something it is not - fake of real thing, not inaccurate alteration
  4. With intent to defraud
28
Q

Exclusionary rule - exceptions to fruit of poisonous tree doctrine

A
  1. Independent source
  2. Inevitable discovery
  3. Intervening acts of free will by D
  4. Miranda violations unless police act in bad faith
29
Q

Exclusionary rule - limits

A

Exclusion does not apply to:

  1. Grand jury proceedings
  2. Civil proceedings
  3. Parole-revocation proceedings
  4. Use of excluded evidence to impeach D
  5. Violations of the knock-and-announce rule
30
Q

Detention - arrest - requirements

A

Must be based on probable cause

Warrants generally not required for arrest in public place but are required for non-emergency arrest of D in his home

31
Q

Detention - investigatory detention (Terry stop) - requirements

A

Must have a reasonable suspicion supported by articulable facts of criminal activity
- Depends on the totality of circumstances

32
Q

Detention - automobile stop - requirements

A

Must have reasonable suspicion that the law has been violated

Exception: roadblock (i) based on a neutral, articulable, standard (ii) designed to serve purpose closely related to particular problem relating to automobiles and their mobility
- E.g., roadblock for drunk driving OK; roadblock to search for drugs not OK

33
Q

Search and seizure - analytical approach

A
  1. Governmental conduct?
    - Public police, private police deputized w/ arrest power, people acting at public police direction
  2. Reasonable expectation of privacy? [STANDING]
  3. Valid search warrant?
  4. If warrant not valid, good faith?
  5. If no good faith or no warrant, do exceptions apply?
34
Q

Search and seizure - reasonable expectation of privacy (standing)

A
  1. Own or have a right to possession of place searched
  2. Live in the place searched
  3. Overnight guest in place searched
  4. Own the property seized AND have a reasonable expectation of privacy in the item or the area searched
35
Q

Search and seizure - reasonable expectation of privacy (standing) - no expectation

A
  1. The sound of your voice
  2. The style of your handwriting
  3. The paint on the outside of your car
  4. Account records held by a bank
  5. Location of your car on a public street or in your driveway
    - But: installation of GPS device on car is search
  6. Anything that can be seen across the open fields/areas outside curtilage
  7. Anything that can be seen from public place, including from the public airspace
    - But: use of sense-enhancing tech not in general public use is search
  8. The odors emanating from your luggage or car (“sniff test”)
  9. Your garbage set out on the curb for collection
36
Q

Search and seizure - warrant requirement

A
  1. Probable cause: a fair probability that contraband or evidence of a crime will be found in the area searched
    - Can’t be based entirely on anonymous tip; reliability of informants judged by totality of circumstances
  2. Particularity: must state with particularity the place to be searched and the things to be seized
  3. Neutral and detached magistrate
37
Q

Search and seizure - warrant requirement - good faith

A

Good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements

Does not apply if:

  1. Affidavit underlying warrant so lacking in probable cause that no reasonable officer would have relied on it
  2. Affidavit underlying warrant so lacking in particularity that no reasonable officer would have relied on it
  3. Officer or prosecutor lied to or misled magistrate when seeking warrant
  4. Magistrate is biased, and therefore has wholly abandoned neutrality
38
Q

Search and seizure - warrant requirement - exceptions

A

ESCAPIST:

  1. Exigency: evanescent evidence; hot pursuit (w/in 15 mins behind D); emergency
  2. Search incident to lawful arrest: contemporaneous wingspan or Gant search of passenger compartment
  3. Consent: voluntary and intelligent; must have apparent authority and not be against wishes of co-occupant
  4. Automobile: everything, including containers that could contain contraband, with probable cause (can arise after stop)
  5. Plain view: if legitimately present where observation made and immediately apparent contraband
  6. Inventory search: before incarceration, arrestee’s personal belongings and entire vehicle
  7. Special needs: school searches and drug testing
  8. Terry stop and frisk: pat-down of outer clothing and body (or areas of car w/in reach) to check for weapons, justified by officer safety concern; can seize weapons or contraband identified by plain
39
Q

Search and seizure - warrant requirement - exceptions - special needs - school search

A

Reasonable grounds (not probable cause) for search and:

  1. Search must offer a moderate chance of finding evidence of wrongdoing; and
  2. Measures adopted are reasonably related to objectives of search; and
  3. Search is not excessively intrusive
40
Q

Wiretapping and eavesdropping

A
  1. All wiretapping and eavesdropping requires a warrant.

2. Exceptions to the eavesdropping rule: “unreliable ear” and “uninvited ear” (no warrant necessary).

41
Q

5th and 6th Amendments - offense specificity

A

5th Amend: not offense specific; applies to entire process of custodial police interrogation

  • If right to silence invoked: can question about another crime w/ fresh warnings after break
  • If right to counsel invoked: can question only if (i) later waives or (ii) released and 14 days pass

6th Amend: offense specific; counsel need to be present only if the D being asked questions about specific case for which D retained counsel

42
Q

5th Amendment - when applicable

A
  1. Custody: at the time of interrogation, D not free to leave. [OBJECTIVE STD]
  2. Interrogation: police knew or should have known that they might elicit an incriminating response from D
    - D must know he is being questioned by government agent
43
Q

6th Amendment - when applicable

A

After judicial proceedings have begun (e.g., formal charges)
Does not apply to:
1. Taking of blood samples
2. Taking of handwriting samples
3. Pre-charge lineups
4. Brief recess during defendant’s testimony at trial
5. Parole and probation revocation proceedings
6. The taking of fingerprints

44
Q

5th and 6th Amendments - waiver

A

Must be knowing and voluntary (and intelligent for 6A)

45
Q

Trial - rights

A
  1. Right to an unbiased judge
    - No actual malice/financial interest
  2. Right to jury trial if sentence exceeds 6 mos
  3. Right to counsel
    - IAC claim if point to specific errors and show prejudice
    - Pro se allowed if competent (req can be higher than competence to stand trial)
  4. Right to confront witnesses
    - Important public purpose can override
46
Q

Trial - jury requirements

A
  1. Minimum number of jurors is 6; if court uses minimum, must be unanimous.
  2. No unanimity requirement; SCOTUS has approved non-unanimous verdicts of 10-2 and 9-3; 8-4 probably not OK
  3. Cross sectional requirement: jury pool, but not impaneled jury, must reflect a fair cross section of the community
    - Cannot exercise preemptory challenges on basis of race or gender
47
Q

Guilty pleas - requirements

A

Voluntary, intelligent, and on record.

Judge must tell D:

  1. Nature of charge and crucial elements; and
    - Atty can explain to D if clear on record
  2. Maximum authorized penalty and any mandatory minimum penalty; and
  3. That D has a right to plead not guilty and to demand a trial; and
48
Q

Guilty pleas - withdrawing

A
  1. The plea was involuntary (some mistake in plea taking ceremony)
  2. Lack of jurisdiction
  3. Ineffective assistance of counsel
  4. Failure of the prosecutor to keep an agreed upon plea bargain
49
Q

Double jeopardy - when attaches

A

Jeopardy attaches in a jury trial when a jury is sworn; in a bench trial when the first witness is sworn

50
Q

Double jeopardy - exceptions permitting retrial

A
  1. Jury is unable to agree upon a verdict
  2. Mistrials for manifest necessity
    - E.g., medical emergencies
  3. A retrial after a successful appeal (unless appeal was on sufficiency of evidence)
    - But: cannot be retried for more serious offense than convicted of at first trial
  4. Breach of an agreed upon plea bargain by D
    - E.g., refuses to testify as agreed; plea and sentence can be w/drawn and original charges reinstated
51
Q

Double jeopardy - included offenses

A

Jeopardy for greater offense bars retrial for any lesser included offense; jeopardy for lesser offense bars retrial for any greater included offense

  • Exception: murder trial after jeopardy attaches to battery charge
  • Exception: new evidence because conduct had not occurred or was not discovered despite due diligence