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July 2021 Bar Exam > Criminal Law and Procedure > Flashcards

Criminal Law and Procedure Flashcards

1
Q

Jurisdiction

A

Rule: A state acquires jurisdiction over a crime if either the conduct or the result happened in that state

Note: More than one state can have jurisdiction

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2
Q

Doctrine of Merger

A

General Rule: Generally, there is no merger of crimes in American law

Exception: Solicitation and Attempt do merge into the
substantive offense. Thus, if you have completed a
crime, you cannot be convicted of attempting to commit that crime

Note: Conspiracy does NOT merge into the substantive offense. Thus, you can be convicted of conspiring to do something and doing it (solicitation can merge into conspiracy)

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3
Q

Four Elements of Crime: Generally

A
  • Act (actus reus)
  • Mental state (mens rea)
  • Concurrence: the physical act and mental act existed at the same time
  • Harmful result and causation: A harmful result caused by the defendant’s act
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4
Q

Physical Act

A

Rule: A physical act can be any bodily movement - but the act must be a voluntary act

Exceptions:
(1) Conduct which is not the product of your own volition
• A reflexive or convulsive act
(ex. seizure)

(2) An act performed while you are unconscious or asleep
(ex. sleep walking)

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5
Q

Omission as an Act

A

Rule: Generally there is no legal duty to rescue but sometimes there is a legal duty to act. A legal duty to act
can arise in one of five circumstances:
(1) By statute
ex. Requirement to file your tax returns

(2) By contract
ex. A lifeguard or nurse has a legal duty to act (while on duty)

(3) Because of the relationship between the parties
ex. A parent’s duty to protect children, or a spouse’s duty to protect the other spouse

(4) Because you voluntarily assume a duty of care and
fail to adequately perform it
ex.

(5) Where your conduct created the peril
Note: Must take “reasonable measures”

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6
Q

Common Law Mental States

A

Rule: There are four common law mental states of a crime:

(1) Specific intent crimes
(2) Malice crimes
(3) General intent crimes
(4) Strict liability crimes

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7
Q

Specific Intent Crimes

A
  • Solicitation (Inchoate offense)
  • Conspiracy (Inchoate offense)
  • Attempt (Inchoate offense)
  • First-degree murder
  • Assault
  • Larceny
  • Embezzlement
  • False pretenses
  • Robbery
  • Burglary
  • Forgery

Mnemonic: Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts

Note: The importance of specific intent crimes is that they will qualify for additional defenses not available for
other types of crime

2 Additional Defenses, Only Available for Specific Intent Crimes:

  • Voluntary Intoxication
  • Unreasonable Mistake of Fact
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8
Q

Specific Intent Crimes Mnemonic: Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts

A
  • Solicitation (Inchoate offense)
  • Conspiracy (Inchoate offense)
  • Attempt (Inchoate offense)
  • First-Degree Murder
  • Assault
  • Larceny
  • Embezzlement
  • False Pretenses
  • Robbery
  • Burglary
  • Forgery
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9
Q

Malice Crimes

A

Murder and Arson

Rule: Malice is recklessly disregarding an obvious or high risk that a particular harmful result will occur

Rule: Implied Malice - “Malice aforethought” for common law murder can be satisfied by any of the following: (i) the intent to kill; (ii) the intent to inflict great bodily injury; (iii) depraved heart, a reckless indifference to an unjustifiably high risk to human life; or (iv) the intent to commit a felony

Note: Common Law Murder (Second Degree Murder) needs reckless indifference

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10
Q

General Intent Crimes

A

Rule: General intent means that the Defendant has a general awareness that she is acting in a manner that would
be prohibited by law

**Most Tested: Battery

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11
Q

Doctrine of Transferred Intent

A

Rule: Transferred Intent is a legal doctrine that holds that, when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held responsible

Note: There are always two crimes, two victims (almost always murder on the bar, i.e. first degree murder and attempted murder)

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12
Q

Strict Liability - The No Intent Crimes

A

Rule: Strict liability crimes are the no intent crimes

Note: No intent or mistake defenses allowed**
- If the crime is in the administrative, regulatory,
or morality area and you don’t see any adverbs in the
statute such as knowingly, willfully, or intentionally,
then the statute is meant to be a no intent crime of
strict liability

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13
Q

Mental States and the Model Penal Code (MPC) Analysis of Fault

A

(1) Purposely: One acts purposely when it is his
conscious objective to engage in certain conduct or cause a certain result

(2) Knowingly: One acts knowingly when he is
aware that his conduct will very likely cause the result

(3) Recklessly: One acts recklessly when he consciously disregards a substantial and unjustifiable
risk

(4) Negligently: One acts negligently when he fails
to be aware of a substantial and unjustifiable risk

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14
Q

MPC Mental State - Purposely

A

Rule: One acts purposely when it is his conscious objective to engage in certain conduct or cause a certain result

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15
Q

MPC Mental State - Knowingly

A

Rule: One acts knowingly when he is aware that his conduct will very likely cause the result

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16
Q

MPC Mental State - Recklessly

A

Rule: One acts recklessly when he consciously disregards a substantial and unjustifiable risk

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17
Q

MPC Mental State - Negligently

A

Rule: One acts negligently when he fails to be aware of a substantial and unjustifiable risk

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18
Q

Accomplice Liability - Parties to a Crime - Common Law

A

Rule: The common law distinguished four types of parties to a felony:

(1) Principals in the first degree: persons who actually
engage in the act that constitutes the criminal offense;

(2) Principals in the second degree: persons who aid,
advise, or encourage the principal and are present at
the crime;

(3) Accessories before the fact: persons who aid, advise, or encourage the principal but are not present at
the crime; and

(4) Accessories after the fact: persons who assist the
principal after the crime

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19
Q

Accomplice Liability - Parties to a Crime - Modern Statutes

A

Rule: Most jurisdictions have abolished the distinctions
between principals in the first degree, principals in the
second degree, and accessories before the fact (accessories after the fact are still treated separately)

Principal: one who, with the requisite mental state,
actually engages in the act or omission that causes
the criminal result

Accomplice: one who aids, advises, or encourages
the principal in the commission of the crime charged

Accessory after the fact: one who receives, comforts
or assists another knowing that he has committed a
felony, in order to help the felon escape arrest, trial, or
conviction

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20
Q

Mental State Required for Accomplice Liability

A

Rule: In order to be convicted of a substantive crime as an
accomplice, the accomplice must have
(1) the intent
to assist the principal in the commission of the crime,
and
(2) the intent that the principal commit the crime

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21
Q

Scope of Liability for Accomplice Liability

A

Rule: An accomplice is responsible for the crimes she committed or aided/advised/encouraged and for any other crimes committed in the course of committing the
crime contemplated, as long as the other crimes were
probable and foreseeable

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22
Q

Accomplices and Withdrawal

A

Rule: If the person encouraged the crime, the person must
repudiate the encouragement.

Rule: If the person aided by providing assistance to the principal (such as giving materials), he must do everything possible to neutralize this assistance (such as attempting to retrieve the materials)

Rule: An alternate means of withdrawing is to contact the
police

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23
Q

Inchoate Offenses Generally

A

Rule: Inchoate means incomplete. There are three inchoate offenses

(1) Conspiracy
(2) Solicitation
(3) Attempt

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24
Q

Conspiracy

A

Rule: Conspiracy is an agreement, with an intent to
agree, and an intent to pursue an unlawful objective

Note: On MBE ensure that the objective is unlawful

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25
Q

Conspiracy - No Merger

A

Rule: Conspiracy does NOT merge with the substantive
offense

Note: On the bar exam you CAN be convicted of
conspiring to do something and doing it

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26
Q

Conspiracy - Agreement Requirement

A

Rule: The agreement need not be expressed. Intent can be inferred from conduct

Two Approaches

  • Bilateral Approach**
  • Unilateral Approach (MPC)
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27
Q

Conspiracy - Agreement Requirement: Bilateral Approach

A

Rule: The traditional (common
law) rule required two guilty parties. Thus, under this approach, if one person (in a two-party conspiracy) is merely feigning agreement, the other person cannot be guilty of conspiracy

Furthermore, the acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant under this approach

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28
Q

Conspiracy - Agreement Requirement: Unilateral Approach

A

Rule: The modern trend (and

MPC approach) requires that only one person have a genuine criminal intent

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29
Q

Conspiracy - Overt Act Requirement

A

Rule:
- The majority rule (common law) is that in order to ground liability for conspiracy there must be an agreement plus some overt act in furtherance of the conspiracy

  • The minority rule and the common law rule grounded liability for conspiracy with the agreement itself
    (1) If you are operating under the majority rule that requires an agreement plus an overt act, any little act will do to be an overt act in furtherance of conspiracy, even an act of mere preparation (ex. buying ski mask and black gloves)

Note on the MBE regarding majority and minority rules: Always apply the majority rule UNLESS specifically told otherwise (versus the common law)

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30
Q

Conspiracy - Factual Impossibility

A

Rule: Factual impossibility is no defense to conspiracy

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31
Q

Conspiracy - Withdrawal

A

Rule: Withdrawal, even if it is adequate, can never relieve
the defendant from liability for the conspiracy itself.
The defendant can withdraw from liability for the other conspirators’ subsequent crimes. But he cannot withdraw from this conspiracy

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32
Q

Solicitation

A

Rule: Solicitation is asking someone to commit a
crime. The crime of solicitation ends when you ask them

Under the common law, it is not necessary that the person solicited to agree to commit the crime - if they do agree, then it becomes a conspiracy

Note: : Factual impossibility is no defense

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33
Q

Attempt

A

Rule: (1) Specific intent plus (2) overt act in furtherance of the crime

For purposes of attempt, the overt act must be a substantial step in furtherance of the commission of the crime; thus, mere preparation cannot ground liability for attempt

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34
Q

Attempt - Defense of Abandonment

A

Rule: The majority rule is that, once Defendant has taken a
substantial step toward committing the crime, abandonment is never a defense

Note: The MPC allows for this defense only if it is fully voluntary and a complete
renunciation of criminal purpose

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35
Q

Attempt - Impossibility

A

Rule: Legal impossibility is a defense to attempt (not legally a crime); but factual
impossibility is not a defense

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36
Q

Homicide - Common Law Murder (Generally)

A

Rule: Murder is the unlawful killing of another human being
with malice aforethought. Such a state of mind exists if there is:
• Intent to kill; or
• Intent to commit a felony; or
• Intent to inflict great bodily harm (2nd D M); or
• Reckless indifference to an unjustifiably high risk
to human life (2nd D M)

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37
Q

Homicide - First Degree Murder

A 
Rule: 
(1) Premeditated Killing
• Victim must be human
• Defendant must have acted with intent or knowledge that his conduct would cause death
(2) Felony Murder 
(3) Homicide of a Police Officer
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38
Q

Homicide of a Police Officer - First Degree Murder

A

Rule:
(1) The defendant must know the victim is a law
enforcement officer, and
(2) The victim must be acting in the line of duty

Note: Even if off duty and acting in line of duty, will still be first degree

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39
Q

Homicide - Second Degree Murder

A

Rule: In many states, second-degree murder is classified as
a depraved heart killing—a killing done with reckless
indifference to an unjustifiably high risk to human life;
or murders that are not classified as first-degree murders

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40
Q

Homicide - Felony Murder

A

Rule: Any killing, even an accidental killing, committed during the course of a felony

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41
Q

Homicide - Defenses to Felony Murder

A

(1) If the Defendant has a defense to the underlying
felony, then she has a defense to felony murder

(2) The felony they are committing must be a felony
other than the killing

(3) The deaths must be foreseeable

(4) Deaths caused while fleeing from a felony are felony murders. BUT once the Defendant reaches a point
of temporary safety, deaths caused thereafter are
NOT felony murders

(5) At Common Law, Defendant is not liable for the death of a co-felon as a result of resistance by the victim or the police

Note: Inherently dangerous felonies list = B A R R K
- Burglary Arson Rape Robbery Kidnapping

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42
Q

Homicide - Voluntary Manslaughter

A

Rule: Voluntary manslaughter is:
(1) Killing in the heat of passion resulting from an adequate provocation by the victim;
(2) The provocation must be one that would arouse
sudden and intense passion in the mind of an ordinary person such to cause him to lose self-control;
(3) There must not have been a sufficient time between the provocation and the killing for the passions
of a reasonable person to cool; and
(4) The defendant in fact did not cool off between the
provocation and the killing

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43
Q

Homicide - Imperfect Self-Defense

A

Rule: If Defendant has an honest but unreasonable belief that his life was in imminent danger, this defense will reduce a murder to manslaughter

Note: Only some states recognize this doctrine

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44
Q

Homicide - Involuntary Manslaughter

A

Rule: Involuntary Manslaughter is:
(1) A killing of criminal negligence or
(2) Misdemeanor manslaughter - killing someone while
committing a misdemeanor or an un-enumerated felony

Note: Hitting with a car is often tested**

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45
Q

Homicide - Causation

A

Rule: Cause-in-fact: The Defendant’s conduct must be the cause-in-fact of the victim’s death. In other words, the
death would not have occurred but for the Defendant’s conduct.

Rule: Proximate cause: The general rule is that a Defendant
is responsible for all results that occur as a natural
and probable consequence of his conduct even if
he did not anticipate the exact manner in which they
would occur.

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46
Q

Battery

A

Rule: Unlawful application of force to the person resulting in either bodily injury or offensive touching
• A battery need not be intentional.
• The force need not be applied directly (ex. poison)

Note: Remember that battery is a general intent crime

Verbiage to use: “Application of force, with criminal negligence”

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47
Q

Assault

A

Rule: Assault is:
(1) An attempt to commit a battery, or

(2) The intentional creation – other than by mere
words – of a reasonable apprehension of imminent bodily harm.

Note: (Common Law)
The Assault/Battery distinction: If there has been an actual touching, the crime is battery

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48
Q

Aggravated Assault

A

Rule: Aggravated Assault is an Assault plus one of the following:
• The use of a deadly or dangerous weapon; or
• With the intent to rape, maim, or murder

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49
Q

False Imprisonment

A

Rule: Unlawful confinement of a person without his
valid consent

Note: If a known alternate route is available, the confinement element will not be met for purposes of false
imprisonment

Note: One’s consent to the confinement precludes it
from constituting false imprisonment

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50
Q

Kidnapping

A

Rule: Kidnapping is the unlawful confinement of a person with either some movement or concealment in a secret place

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51
Q

Rape

A

Rule: Rape is the unlawful act of engaging in sexual intercourse with an individual who does not consent to the act

Note: Most Modern Statutes use “Sexual Assault”

Note: For questions dealing with rape/sexual assault on the
bar exam: the slightest penetration completes the
crime

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52
Q

Statutory Rape

A

Rule: Statutory rape is engaging in sexual intercourse with an individual of minor age, consent or mistake of age is not a defense

Statutory Rape is a strict liability crime, meaning consent of the victim is no defense and mistake of fact is
no defense

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53
Q

Offenses Against Property and Habitation

A
  • Larceny
  • Embezzlement
  • False Pretenses
  • Robbery
  • Extortion
  • Forgery
  • Burglary
  • Arson
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54
Q

Larceny

A

Rule: Larceny consists of: (i) A taking; (ii) And carrying away (asportation); (iii) Of tangible personal property; (iv) Of another; (v) By trespass; (vi) With intent to permanently (or for an unreasonable time) deprive the person of his interest in the property

Notes on the common law rule:
(1) The slightest movement of the property is enough for purposes of the bar exam
(2) The intent to deprive the owner permanently must exist at the time of the taking or it is not common law larceny
BUT if a person takes property not intending to steal it, but then later decides to keep the property, she can be guilty of larceny under the theory of continuing trespass
(3) Taking property in the belief that it is yours (or that you have some right to it/ is owed it) is NOT common law larceny

Note: If at the time of the taking, the defendant intended to deal with the property in a manner that involved a substantial risk of damage or loss, this suffices as intent to permanently deprive

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55
Q

Embezzlement

A

Rule: Embezzlement is the fraudulent conversion of the property of another by a person in lawful possession of the property

If the defendant intended to restore the exact property taken, it is NOT embezzlement. But if he intended to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money-of identical value-that he intended to return

Notes for the MBE:

(1) The embezzler always has lawful possession, followed by an illegal conversion
(2) A trustee is often the MBE embezzler
(3) You don’t have to carry away to be an embezzler – just the lawful possession
(4) The embezzler doesn’t have to get the benefit

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56
Q

Larceny by False Pretenses (False Representation)

A

Rule: The offense of false pretenses generally consists of: (i) obtaining title; (ii) to the property of another; (iii) by an intentional (or, in some states, knowing) false statement of past or existing fact; (iv) with intent to defraud the other

The Defendant persuades the owner of property to convey title by false pretense (false representation)

Notes for the MBE:
(1) It is the conveyance of title that is the center of false pretenses
(2) This false representation could be as to a present or past fact
(3) A false promise to do something in the future
cannot ground liability for false pretenses

“Larceny by Trick” distinguished: If only possession of the property is obtained, the offense is larceny by trick.
**If title is obtained, the offense is false pretenses

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57
Q

Robbery

A

Rule: The taking of personal property of another from
the other person’s presence, by FORCE or THREAT with
the intent to permanently deprive him of it

Notes for the MBE:
(1) The “presence” requirement is very broadly drawn, and would even cover a farmer tied up in his barn and taking things from his house
(2) As for taking either by force or threat, things such as ripping a necklace from a person’s neck is
sufficient
(3) The threat must be a threat of IMMINENT harm

Armed Robbery - Simulated deadly weapon hypo: Even if not real, will still be charged with arm robbery

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58
Q

Extortion (Blackmail)

A

Rule: Knowingly seeking to obtain property or services
by means of a future threat

Differences between Extortion and Robbery:
• You don’t have to take anything from the person or
his presence to be extortion
• The threats are of future harm—not imminent harm

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59
Q

Forgery

A

Rule: Forgery is The making or altering of a false writing with intent to defraud

Note: Any writing that has apparent legal significance can be subject to the crime of forgery

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60
Q

Burglary

A

Rule: Breaking and entering of a dwelling of another at
night with the intent to commit a felony therein

Notes:
a. Breaking—can be actual (involving some force,
however slight) or constructive
(1) Actual Breakings: It is not an actual breaking for
someone to come uninvited through a wide open
door or window. If wide open – there is no breaking (BUT if someone pushes open an interior door to the bedroom or living room then a breaking
exists)
(2) Constructive Breakings: A breaking by fraud or
threat

b. Entering—occurs when any part of the body crosses into the house
c. Dwelling house of another—cannot be a barn or a commercial structure
d. At night—common law had to be at night

e. With the intent to commit a felony therein. The intent to commit the felony must exist at the time of the breaking and entering or it is NOT common
law burglary

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61
Q

Arson

A

Rule: The malicious burning of the dwelling of another.

Note: As for the “malice” requirement, no specific intent is required. Acting with a reckless disregard of an obvious risk that the structure would burn will suffice for
arson culpability

Notes for the MBE:
(1) Only applies to burning – not to smoke damage
Scorching is insufficient, but charring is sufficient
(2) At common law, the building burned had to be
a dwelling; it could not be a barn or commercial structure
(3) At common law, the burning had to be a house of another. One could not be guilty of burning her own house at common law

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62
Q

Defenses

A
  • Insanity
  • Intoxication
  • Self-Defense
  • Duress
  • Necessity
  • Defense of a Dwelling
  • Mistake of Fact
  • Mistake/ Ignorance of the Law
  • Entrapment
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63
Q

Defenses - Insanity

A

Rule: The four trigger phrases that are tied to the four tests for the insanity defense. The four tests for insanity are:
(1) M’Naghten rule: At the time of his conduct, Defendant lacked the ability to know the wrongfulness of his actions or understand the nature and
quality of his actions (Right-Wrong Test)

(2) Irresistible Impulse: Defendant lacked the capacity for self-control and free choice
(3) Durham Rule: Defendant’s conduct was a product of mental illness (Products Test)

(4) Model Penal Code: Defendant lacked the ability
to conform his conduct to the requirements of law

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64
Q

Defenses - Intoxication (Voluntary)

A

Rule: Voluntary intoxication (self-induced intoxication) is a defense on the bar exam
only to specific intent crimes (and no other kind of crime)

Note: For purposes of the bar exam, addicts and alcoholics are always considered voluntarily intoxicated

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65
Q

Defenses - Intoxication (Involuntary)

A

Rule: Involuntary intoxication is (1) Unknowingly being intoxicated, or (2) becoming
intoxicated under duress

Examples of involuntary intoxication:
• You have something slipped into your drink (and you didn’t know what it was or what its effects are);
or
• You are forced to drink

Note: Involuntary intoxication is a form of insanity. Thus, it is a defense to all crimes

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66
Q

Defenses - Self-Defense Generally

A

Rule: A victim may use non-deadly self-defense any time the victim reasonably believes
that force is about to be used on him

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67
Q

Defenses - Self-Defense (Use of Deadly Force)

A

Majority Rule: A victim may use deadly force in self-defense any time the victim reasonably believes that deadly force is about to be used on him

Minority Rule: A victim is required to retreat if it is safe to do so
Note: If, but only if, the examiners tell you that you are in one of these so called “retreat” or minority rule jurisdictions, there are three exceptions to that duty to retreat:
(1) no duty to retreat from your home;
(2) no duty to retreat if you are the victim of a rape or a robbery; and
(3) police officers have no duty to retreat

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68
Q

Defenses - Self-Defense (Original Aggressor)

A

Rule: To get back the defense of self-defense, the original
aggressor must:
(1) Withdraw, and
(2) Communicate that withdrawal

Note: If the victim of the initial aggression suddenly escalates a minor fight into one involving deadly
force and does so without giving the aggressor the
opportunity to withdraw, the original aggressor may
use force in his own defense (including deadly force, if
reasonable)

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69
Q

Defenses - Defense of Others

A

Rule: A defendant can raise a “defense of others” defense if he reasonably believes that the person assisted would have had the right to use force in his own defense

Majority rule: There need not be a special relationship between the defendant and the person in whose defense he acted

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70
Q

Defenses - Duress

A

Rule: Duress is a defense to a criminal act if:

(1) The person acts under the threat of imminent infliction of death or great bodily harm, and
(2) that belief is reasonable

Threats to harm a third person may also suffice to
establish the defense of duress

Note: Duress is a defense to all crimes except homicide.

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71
Q

Defenses - Necessity

A

Rule: Conduct that would otherwise be criminal is justifiable if, as a result of pressure from natural forces,
the defendant reasonably believes that his conduct
was necessary to avoid a greater societal harm (i.e. hurricane, tornado, etc)

Note: The necessity defense differs from duress because duress involves a human threat, and necessity
involves pressure from natural forces

72
Q

Defenses - Defense of a Dwelling

A

Rule: Deadly force may never be used solely to defend your property

73
Q

Defenses - Mistake of Fact

A

Rule: Mistake of fact is a defense only when the mistake negates intention.
The mistake has to be reasonable to be a defense to
a malice or general intent crime.

Note for the Bar Exam:
Any mistake, no matter how ridiculous, is a defense if the defendant is charged with
a specific intent crime

  • Mistake of fact is NEVER a defense to strict liability
    crimes
74
Q

Defenses - Mistake/ Ignorance of the Law

A

General Rule: It is not a defense to a crime that the defendant was unaware that her acts were prohibited by
law or that she mistakenly believed that her acts were
not prohibited

Note: This is true even if her ignorance or mistake
was reasonable

75
Q

Defenses - Entrapment

A

Rule: Entrapment is a valid defense only if:
(1) The criminal design originated with law enforcement officers, and
(2) The defendant must not have been predisposed to
commit the crime

Note: If the test discovers undercover officers always discuss entrapment and deny that it is a viable defense, because it is a high bar

76
Q

General Notes/ Tips

A

(1) If a valid defense exists, they cannot be convicted of the crime
(2) On essay, always discuss defenses

(3) Issue Spotting
- False Imprisonment: if trapped or confined
- Battery: if ouched
- Assault: if fearful
- Burglary: if breaking into home

77
Q

Reasonable Belief Defenses

A

(1) Self-Defense
(2) Duress
(3) Necessity
(4) Mistake of Fact (for malice or general intent, but can be unreasonable for specific intent)

78
Q

Arrests and Other Detentions - Seizure

A

Rule: Any exercise of control by a government agent

over a person or thing

79
Q

Probable Cause and Arrests (General)

A

Rule: Probable cause exists when a reasonably
prudent person would believe that a suspect has
committed or is committing a crime

Note: Any arrest must be based on probable cause

80
Q

Arrests in a Public Place

A

Rule: Arrest warrants are generally not required before

arresting someone in a public place

81
Q

Non-Emergency, In Home Arrests

A

Rule: Non-emergency arrest of an individual

in her home does require an arrest warrant

82
Q

Station House Detention

A

Rule: The police need probable cause to arrest you and compel you to come to the police station either for fingerprinting or interrogation

83
Q

Effect of an Invalid Arrest

A

Rule: An unlawful arrest, by itself, has no impact on any

subsequent criminal prosecution

84
Q

Investigatory Detentions - Terry Stops**

A

Rule: The police have the authority to briefly detain a
person even if they lack probable cause to arrest.
In order to make such a stop, the police must have
a reasonable suspicion supported by articulable
facts of criminal activity.

Reasonable suspicion is more than just vague suspicion and it is less than probable cause

Whether the police have reasonable suspicion depends on the totality of circumstances

85
Q

Investigatory Detentions - Informants

A

Rule: When reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability
(including predictive information) to be sufficient

86
Q

Totality of Circumstances Test

A

Rule:

87
Q

Investigatory Detentions - Automobile Stops

A

Rule: The police may stop a car if they have at least reasonable suspicion that the law has been violated

88
Q

Traffic Stops and Police Dogs

A

Rule: During routine traffic
stops, a sniff is not a search, so long as the police
do not extend the stop beyond the time needed to
issue a ticket or conduct normal inquiries.

Moreover, in 2013 the Supreme Court held that
during such a traffic stop, a dog “alert” to the
presence of drugs can form the basis for probable
cause for a search.

BUT NOTE: In 2013, the Supreme Court also held
that the police (without probable cause) cannot
use a drug sniffing dog outside of the home of a
suspected drug dealer

89
Q

Automobile Stops - Seizure of All Occupants

A

Rule: An automobile stop constitutes a seizure of all

occupants (driver and any passengers)

90
Q

Automobile Stops - Informational/Checkpoint Roadblocks

A

Rule: If the police set up a roadblock for purposes
other than seeking incriminating information
about the drivers stopped, the roadblock will be
constitutional

Note: Valid ONLY if neutrally applied

91
Q

Automobile Stops - Ordering Occupants Out of the Car

A

Rule: If an automobile is lawfully stopped, an officer

may order the occupants out of the car

92
Q

Automobile Stops - Pretextual Stops

A

Rule: An officer’s ulterior motive for stopping an automobile is irrelevant, so long as the stopping
of the car was legal

93
Q

Evidentiary Search and Seizure - Government Conduct

A

Rule: The publicly paid police, on or off duty

**Any private individual acting at the direction of the
public police

Privately paid police actions do NOT constitute governmental conduct, UNLESS they are deputized
with the power to arrest you

Ex. of Privately Paid Police:
• Store security guards
• Subdivision police
• Campus police

94
Q

Evidentiary Search and Seizure - Reasonable Expectation of Privacy/ Standing

A

Rule: In order to object to a governmental search, one
must have standing to object to the search.
In order to have standing, a person must have a
reasonable expectation of privacy in the item or
area searched

95
Q

Reasonable Expectation of Privacy/ Standing - Automatic Categories of Standing

A
  1. If you own the premises searched, you always
    have standing to object to the search of the place
    you own
  2. You live on the premises searched, whether you
    have ownership interest or not Ex. Grandchild living at grandparents’ home
  3. Overnight guests have standing to object to the
    legality of the search of the place they are staying

Note: An important “sometimes” category of standing: You own the property seized.
- If you own the property seized you have standing only if you have a reasonable
expectation of privacy in the item or area searched
- Note, getting rid of something relinquishes an expectation of privacy

96
Q

Reasonable Expectation of Privacy/ Standing - “No Standing” Categories

A

Rule: You have NO expectation of privacy, and therefore no standing for anything that you hold out to the public every day. The following is a list of things
held out to the public, the seizure of which implicates no right of privacy:
1. The sound of your voice

  1. The style of your handwriting
  2. The paint on the outside of your car
  3. Account records held by a bank
  4. Monitoring the location of your car on a public
    street or in your driveway.
    Note: In 2012, the Supreme Court held that installation of a GPS device on a suspect’s car constitutes a search within the Fourth Amendment
  5. Anything that can be seen across the open fields
  6. Anything that can be seen from flying over the public air space
  7. The odors emanating from your luggage or car
  8. Your garbage set out on the curb for collection
97
Q

Searches Conducted w/ a Warrant: Warrant Requirements

A

Rule: There are two core requirements for a facially valid search warrant: probable cause and particularity
1. The standard for probable cause: A fair probability that contraband or evidence of a crime will be found in the area searched

  1. Particularity: The warrant must state with particularity the place to be searched and things to be seized

2Ps of Step 3:
- Probable Cause and Particularity

98
Q

Searches Conducted w/ a Warrant: Warrant May be Anticipatory

A

Rule: A warrant can predict when illegal items may be in

a suspect’s home/office and the items need not be on the premises at the time the warrant is issued

99
Q

Searches Conducted w/ a Warrant: Probable Cause and Informants

A

Rule: If an officer’s affidavit or probable cause is based
on informant information, its sufficiency is determined by the totality of the circumstances

  • An informant’s credibility and basis of knowledge are all relevant factors in making this determination

A valid warrant can be based in part on an informant’s tip even though that informant is anonymous
Note: cannot SOLELY be based on an anonymous tip

100
Q

Searches Conducted w/ a Warrant: Execution

A

Rule: Only the police (and not a private citizen) can execute a search warrant.

Note: Moreover, when executing a warrant in one’s
home, the police may not be accompanied by any
third parties (unless the third party is there to aid in
identifying stolen property)

101
Q

Exceptions to Warrant Requirement: Search Incident to Arrest

A

Rule: The arrest must be lawful. If the arrest is unlawful
then the search is unlawful.

  • The arrest and search must be contemporaneous in time and place

Note: Geographic scope limitation: Only the person and the areas within the person’s wingspan can be searched

102
Q

Exceptions to Warrant Requirement: Search Incident to Arrest & Automobiles (Gant Rule)

A

Rule: The police
may search the interior of the auto incident to arrest
ONLY IF:
1. The arrestee is unsecured and still may gain access to the interior of the vehicle; (even if ran off) or
2. The police reasonably believe that evidence of
the offense for which the person was arrested
may be found in the vehicle

Note:** So long as the search itself as valid, ANY contraband found will be admissible

103
Q

Exceptions to Warrant Requirement: Search Incident to Arrest: Digital Information and Cell Phones

A

Rule: Note: In 2014 The Supreme Court held that the police, without a warrant, may not search digital information
on a cell phone seized from an arrested individual.

  • However, physical attributes of a cell phone may be
    searched (but not data)

Note: In Carpenter case, a person DOES have a reasonable expectation of privacy in his cellsite location information (aka cell towers)

104
Q

Exceptions to Warrant Requirement: Automobile Exception

A

Rule: In order for the police to search anything or anybody
and fall under the automobile exception they must have probable cause

Note: If – BUT only if – before searching anything or
anybody the police have probable cause, then they
can search the entire car. This includes the entire interior compartment, and the trunk.
- Moreover, if there is
probable cause, the police may open (without a warrant) any package, luggage, or other container which could reasonably contain the item they had probable cause to look for whether that package, luggage, or other container is owned by the passenger or the driver

105
Q

Exceptions to Warrant Requirement: Probable Cause Necessary for Warrantless Search of Automobile

A

Note: The probable cause necessary to justify the warrantless search of an auto under the automobile exception can arise after the car is stopped. BUT the probable cause must arise before anything or anybody is
searched

106
Q

Exceptions to Warrant Requirement: Plain View

A

Rule: To constitute a valid plain view seizure the police
officer must be (1) legitimately present at the location where he or she does the viewing of the item seized and (2) **it must be immediately apparent that the item is contraband or a fruit of a crime

107
Q

Exceptions to Warrant Requirement: Consent

A

Rule: For consent to be valid, the consent must be voluntary

Note: Police saying that they a warrant negates/ invalidates consent

**Third-Party Consent Rule: Where two or more people
have an equal right to use a piece of property, either can consent to its warrantless search.
Exception: However, if both people are present and one person consents to the search and the other does not consent, then the one who does not consent controls

Note: If a co-occupant who does not consent to a
search is removed from the premises for a reason
unrelated to the refusal (e.g., a lawful arrest), the police
may search upon consent of the other occupant.

Also Note: Anyone with apparent authority can validly consent to a governmental search

108
Q

Exceptions to Warrant Requirement: Stop and Frisk

A

Rule: A Terry stop is a brief detention for the purpose of
investigating suspicious conduct

  • The legal standard for stopping: reasonable suspicion
  • The reasonable suspicion standard is less than the
    probable cause standard
  • A Terry “frisk” is a pat down of the outer clothing
    and body to check for weapons
  • Note: If weapon is felt, and weapon is found it is admissible if reasonably believes an individual is armed and dangerous
109
Q

Exceptions to Warrant Requirement: Plain Feel

A

Rule: If officer reasonably believes by the plain feel that something is a weapon or contraband, it will be deemed admissible

110
Q

Exceptions to Warrant Requirement: Probable Cause Found During an Investigatory Stop

A

Rule: If probable cause arises during an investigatory
stop, the detention can become an arrest and the officer could then conduct a full search incident to that
arrest

Auto stops: If a vehicle is properly stopped for
a traffic violation, and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may:
(1) conduct a frisk of the suspected person, and
(2) may search the vehicle, so long as it is limited to the areas in which a weapon may be placed

111
Q

Exceptions to Warrant Requirement: Evanescent Evidence

A

Rule: Evanescent (fleeting) evidence is evidence that might disappear quickly if the police took the time to get
a warrant

Note: : In 2013 the Supreme Court held that officers need to get a warrant before taking a blood sample for a DUI arrest (if it is practical to do so)

112
Q

Exceptions to Warrant Requirement: Hot Pursuit

A

Rule: Hot pursuit of a fleeing felon. Rule of thumb: If the
police are not within fifteen (15) minutes behind the
fleeing felon, it is not a valid hot pursuit exception

Note: If the police are truly in hot pursuit they can
enter anyone’s home without a warrant, and any evidence they see in plain view will be admissible

113
Q

Exceptions to Warrant Requirement: Inventory Searches

A

Rule: Before incarceration of an arrestee, the police may
search (1) the arrestee’s personal belongings and/
or (2) the arrestee’s entire vehicle

Note: Also applies to any closed containers in the vehicle

114
Q

Exceptions to Warrant Requirement: Emergency Aid/Community Caretaker Exception to the Warrant Requirement

A

Rule: This exception justifies a warrantless search if
an officer faces an emergency that threatens
the health or safety of an individual or the
public

115
Q

Exceptions to Warrant Requirement: Public School Searched

A

Rule: Public school children engaged in extracurricular activities can be randomly drug tested

Warrantless searches of public school children’s effects, such as purses and/or backpacks is permissible
to investigate violations of school rules

A school search will be held to be reasonable only if:

  1. It offers a moderate chance of finding evidence of wrongdoing; and
  2. The measures adopted to carry out the search are reasonably related to the objectives of the search; and
  3. The search is not excessively intrusive
116
Q

Exceptions to Warrant Requirement: Opening International Mail

A

Rule: Permissible border searches include the opening of international mail when there is reasonable cause to
believe that the mail contains contraband

117
Q

Exceptions to Warrant Requirement: Wiretapping and Eavesdropping

A

General rule: All wiretapping and eavesdropping
requires a warrant.

Exceptions to the eavesdropping rule: “Unreliable
ear” and “uninvited ear.”

  • Unreliable Ear:
    Rule: Everybody in this society assumes the risk that
    the person to whom he is speaking will either consent to the government monitoring the conversation or will be wired, and, therefore, has
    no Fourth Amendment objection on the basis
    that it was a warrantless search
  • Uninvited Ear:
    Rule: A speaker has no Fourth Amendment right if
    she makes no attempt to keep the conversation private
118
Q

Exceptions to Warrant Requirement: Shocking Materials (Torture)

A

Rule: Any act that “shocks the conscience” used to obtain
evidence is unconstitutional

  • Shocking inducement:
    Rule: If a crime is induced by official actions that shock the
    conscience, any conviction stemming therefrom is
    unconstitutional
119
Q

Confessions: Voluntariness (per 14th Amendment)

A

Rule: Any confession must be voluntary for it to be admissible at trial

  • Voluntariness is assessed by the totality of the
    circumstances
120
Q

Confessions: 6th Amendment Right to Counsel

A

Defendant is entitled to an attorney during all critical
stages of a prosecution after formal proceedings have
begun.
Some key stages where applicable:
1. Post-indictment interrogation
2. Preliminary hearings to determine probable
cause to prosecute
3. Arraignment
4. Post-charge lineups
5. Sentencing
6. Felony trials

Other stages where NOT applicable:
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
7. Photo identification
121
Q

Confessions: No Right to Counsel

A 
Other stages where NOT applicable:
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
7. Photo identification
122
Q

Confessions: Offense Specific

A

Rule: The Sixth Amendment right to counsel only applies
to the specific charge for which Defendant has
retained (or been given appointed) counsel.

Thus, Defendant may be questioned on an unrelated charge, even though he has counsel for a different charged crime

123
Q

Confessions: Pre-Trial Identifications - Due Process Standard

A

Rule: Certain pre-trial identification techniques are so unnecessarily suggestive and so substantially likely to produce a misidentification that they deny due process of law

124
Q

Confessions: Pre-Trial Identifications - Independent Source

A

Rule: The remedy for an unconstitutional pre-trial identification is to exclude the in-court identification …
unless the State can show that it had an adequate
independent source for that in-court identification
(independent of that bad line-up)

  • The most common independent source is that the
    victim or witness had an adequate opportunity to
    observe the Defendant at the time of the crime
125
Q

Confessions: Pre-Trial Identifications - Remedy for Violation of Defendant’s Sixth
Amendment Right to Counsel

A

Rule: If the Defendant was entitled to a lawyer at trial,
the failure to provide counsel will result in an automatic reversal of the conviction.

  • However, at non-trial proceedings (such as post-charge lineups), the Harmless Error Test will apply
126
Q

Confessions: 5th Amendment Miranda Doctrine

A

Rule: Miranda warnings are required when a suspect is
in custodial interrogation.
When Miranda warnings are required, the suspect
must be given the following information:
• You have a right to remain silent
• Anything you say can be used against you in
court
• You have the right to an attorney
• If you can’t afford an attorney, one will be appointed for you if you so desire.
Note: The warnings need not be verbatim, so
long as the substance of the warnings is conveyed

Note: Miranda warnings are not required prior to the admissibility of what’s known as a spontaneous statement

127
Q

Confessions: 5th Amendment Miranda Doctrine - Government Conduct

A

Rule: Miranda warnings only apply to interrogation by the publicly paid police.

Exception: It does not apply
where interrogation is by an informant whom the defendant does not know is working for the police

128
Q

Confessions: 5th Amendment Miranda Doctrine - Custody

A

Rule: The legal standard for custody: You are in custody if, at the time of the interrogation, a reasonable person would not feel free to leave

  • In making this determination, a court will determine whether the situation presents the same inherently coercive pressures as a station house questioning
  • Determining whether one is in custody is an objective test
129
Q

Confessions: 5th Amendment Miranda Doctrine - Interrogation

A

Rule: Under the Fifth Amendment Miranda doctrine,
interrogation is defined as any conduct where the police knew or should have known that they might elicit an incriminating response
from the suspect

Note: Miranda warnings are not required prior to the admissibility of what’s known as a spontaneous statement

130
Q

Confessions: 5th Amendment Miranda Doctrine - Invocation v. Waiver

A

Rule: After receiving Miranda warnings, a detainee has
several options: do nothing, waive his Miranda
rights, assert the right to remain silent or assert the
right to counsel

131
Q

Confessions: 5th Amendment Miranda Doctrine - Waiver

A

Rule: A Miranda waiver must be knowing and voluntary

  • Courts will employ a totality of circumstances test
    in making this determination
132
Q

Confessions: 5th Amendment Miranda Doctrine - Invoking the Right to Remain Silent

A

Rule: Invoking the right to silence must be unambiguous.
The police may reinitiate questioning after
the defendant has invoked the right to silence if they scrupulously honor the detainee’s request. At the very least, this means
that the police may not badger the detainee
into talking.
In the Supreme Court’s only opinion directly
on point, it allowed police to reinitiate questioning when the police waited a significant
amount of time, the person was re-Mirandized, and the questions were limited to a
crime that was not the subject of the earlier
questioning

133
Q

Confessions: 5th Amendment Miranda Doctrine - Invoking the Right to

A

Rule: The request for counsel can be invoked only by an unambiguous request

  • If the accused invokes his right to counsel, all questions must cease until
    (1) the accused is given an attorney; or
    (2) the accused initiates further questioning
134
Q

Confessions: 5th Amendment Miranda Doctrine - 14 Day Rule

A

Rule: The prohibition against questioning a detainee
after he requests counsel lasts the entire time the
detainee is in custody, plus 14 more days after
the detainee is out of custody.

  • After that point, the
    detainee can be questioned regarding the same
    matter upon receiving a fresh set of Miranda warnings
135
Q

Confessions: 5th Amendment Miranda Doctrine - Effect of Miranda Violation

A

Rule: Generally, evidence obtained in violation of
Miranda is inadmissible at trial.

Exception: As an exception to the exclusionary rule, a confession obtained in violation of Miranda may be used to impeach the credibility of defendant’s testimony if he takes the stand at trial

136
Q

Confessions: 5th Amendment Miranda Doctrine - Public Safety Exception

A

Rule: If police interrogation is reasonably prompted
by concern for public safety, responses to the questions may be used in court, even though a suspect is in custody and Miranda warnings are not given

Ex. “Where’s the gun?!”

137
Q

Exclusionary Rule

A

Rule: A remedy of American constitutional procedure whereby someone who has been the
victim of an illegal search or a coerced confession can
(among their other remedies) have the product of that
illegal search or that coerced statement excluded from
any subsequent criminal prosecution

138
Q

Limitations on the Exclusionary Rule: Grand Jury

A

Rule: Exclusion does not apply to grand jury proceedings.

• A grand jury witness may be compelled to testify based on illegally seized evidence

139
Q

Limitations on the Exclusionary Rule: Civil Proceedings

A

Rule: Exclusion is not an available remedy in civil proceedings

140
Q

Limitations on the Exclusionary Rule: Parole Revocation Proceedings

A

Rule: Exclusion is not an available remedy in parole

revocation proceedings

141
Q

Limitations on the Exclusionary Rule: Impeachment Purposes

A

Rule: Exclusion does not apply to the use of excluded
evidence for impeachment purposes.
• Since 1980, ALL illegally seized evidence may
be admitted to impeach the credibility of the
defendant’s trial testimony.
• Note: Only the defendant’s trial testimony may
be impeached – not the testimony of other
defense witnesses

142
Q

Limitations on the Exclusionary Rule: Knock and Announce Rule

A

Rule: Exclusion is not an available remedy for violations of the knock and announce rule in the execution of search warrants

143
Q

Limitations on the Exclusionary Rule: Fruit of the Poisonous Tree Doctrine

A

Rule: The doctrine will not only exclude illegally seized
evidence, but will also exclude all evidence obtained or derived from police illegality.

Note: The Fruit of the Poisonous Tree Doctrine
does not apply to Miranda violations, unless the
police act in bad faith in obtaining such information

144
Q

Exceptions to Exclusion and Fruit of the Poisonous Tree**

A

Rule: There are three ways that the government can
break the chain between an original, unlawful police action and some supposedly derived piece of evidence:
1. The government could show that it had an independent source for that evidence, independent of that original police illegality
2. Inevitable discovery: The police would have inevitably discovered this evidence anyway
3. Intervening acts of freewill on the part of the defendant

**The Three In’s of breaking the chain, to get things in

145
Q

Limitations on the Exclusionary Rule: Live Witness Testimony

A

Rule: It is difficult to have live witness testimony excluded as the fruit of illegal police conduct

146
Q

Limitations on the Exclusionary Rule: In-Court Identification

A

Rule: A Defendant may not exclude the witness’s in-court identification on the grounds that it is the fruit of an unlawful detention

147
Q

Limitations on the Exclusionary Rule: Good Faith Reliance Exception

A

Rule: The general rule is that an officer’s good faith reliance on an invalid arrest or search warrant overcomes defects with the probable cause or particularity requirements.

Exceptions: Four (4) Exceptions to a good faith reliance on a
defective warrant:
1. The affidavit underlying that warrant is so lacking in probable cause that no reasonable police
officer would have relied on it

148
Q

Limitations on the Exclusionary Rule: Exceptions to Good Faith Reliance

A

Exception Rule: Four (4) Exceptions to a good faith reliance on a
defective warrant:
1. The affidavit underlying that warrant is so lacking in probable cause that no reasonable police
officer would have relied on it

  1. The affidavit underlying the warrant is so lacking
    in particularity that no reasonable officer would
    have relied on it
  2. The police officer or prosecutor lied to or misled
    the magistrate when seeking the warrant
  3. If the magistrate is biased, and therefore has
    wholly abandoned his or her neutrality
149
Q

Harmless Error Test

A

Rule: A conviction will not necessarily be overturned
because improperly obtained evidence was admitted at trial.

On appeal, a court will apply the harmless error test

Under the Harmless Error Test, a conviction will be upheld if the conviction would have resulted despite the improper evidence

On appeal, the government bears the burden of showing beyond a reasonable doubt that the admission was harmless

150
Q

Trial: Prosecutorial Disclosure

A

Rule: Before trial, a prosecutor has a duty to disclose exculpatory information

A prosecutor’s failure to disclose evidence, whether
willful or inadvertent, violates the Due Process Clause
and may be grounds for reversal of a conviction if:
1) The evidence is favorable to the defendant, and
2) Prejudice has resulted, meaning there is a
reasonable probability that the result would have
been different had the information been disclosed

151
Q

Right to Trial By Jury: Serious Offenses

A

Rule: The constitutional right to jury trial attaches anytime the defendant is tried for an offense for which the maximum authorized sentence exceeds six (6) months. If the maximum authorized sentence is up to or including six (6) months, there is no constitutional right to jury trial

152
Q

Right to Trial By Jury: Number and Unanimity of Jurors

A

Rule: The minimum number of jurors permissible is six
(6).

  • Regardless of the number of jurors used (6-12), the verdict must be unanimous
153
Q

Right to Trial By Jury: Right to Impartial Jury

A

Rule: You have the right to have the jury pool reflect a
fair cross-section of the community. BUT you have
no right to have the empaneled jury reflect a fair
cross section of the community.

  • Impair or Prevent Performance Standard:
    The standard to determine whether a prospective juror should be excluded for cause
    is whether the juror’s views would prevent
    or substantially impair the performance of
    her duties
154
Q

Right to Counsel: General

A

Rule: A criminal defendant’s right to counsel applies to

all critical stages of a prosecution, including trial

155
Q

Right to Counsel: Waiver of Counsel/Right to Defend Oneself

A

Rule: A defendant has the right to defend himself so
long as his waiver of trial counsel is knowing
and intelligent, and he is competent to proceed pro se.

Note: A defendant can be found mentally competent to stand trial, yet incompetent to represent himself, as determined by the trial judge’s discretion

156
Q

Right to Counsel: Ineffective Assistance of Counsel (IAC)

A

Rule: There must be deficient performance by
counsel and, but for such deficiency, there is
a reasonable probability that the result of the
proceeding would have been different.

Rule: Typically, such a claim can only be made out by
specifying particular errors of trial counsel

157
Q

Right to Confront Witnesses (Confrontation Clause - 6A)

A

Rule: The absence of face-to-face confrontation between the defendant and accuser does not violate the Sixth Amendment when preventing such confrontation serves an important public purpose,
and the reliability of the witness testimony is otherwise assured.

Note: A defendant who is disruptive may be removed
from the courtroom, thereby relinquishing his right
of confrontation

Ex. Insulating a child from testifying in abuse cases

158
Q

Right to Confront Witnesses: Co-Defendant’s Confession

A

General Rule: A confession implicating a co-defendant is prohibited and inadmissible at their trial

Under the Confrontation Clause, prior testimonial evidence may not be admitted unless:
(1) The declarant is unavailable; and
(2) The defendant had an opportunity to
cross-examine the declarant at the time the
statement was made

159
Q

Burden of Proof

A

Rule: The state must prove every element of a crime
beyond a reasonable doubt.

Exception: Affirmative defenses (such as insanity,
self-defense) generally shift the burden of proof to
the defendant

160
Q

Prior Act Evidence

A

Rule: Prior act evidence is generally admissible for various reasons if it is probative and relevant

Ex. Evidence of prior bodily injury can be admissible to show that a child victim had sustained repeated and/or serious injuries by non-accidental means to infer that the victim’s death was not accidental, even though there was no direct evidence linking the prior injuries to the defendant

161
Q

Death Penalty for Felony Murder

A

Rule: The death penalty may not be imposed for felony
murder where the defendant, as an accomplice,
did not take or attempt or intend to take life.

However, the death penalty may be imposed on a
felony murderer where he participated in a major
way in a felony that resulted in a murder and he
acted with reckless indifference to the value of
human life

162
Q

Double Jeopardy: When Jeopardy Attaches

A

Rule: Jeopardy attaches in a jury trial when the jury is
sworn. In a bench trial, jeopardy attaches when the
first witness is sworn.

Jeopardy does not generally attach when the proceedings are civil.

Example: It is okay to have a
criminal prosecution for tax fraud, and then a civil
proceeding to collect the back taxes.

Note Exceptions permitting retrial! (4)
1. Jury is unable to agree upon a verdict.
2. Mistrials for manifest necessity.
3. A retrial after a successful appeal is not double jeopardy. Note: Upon retrial after a successful
appeal, the Defendant cannot be retried for a more
serious offense than he was convicted of at the
first trial
4. Breach of an agreed upon plea bargain by the
defendant. Rule: When the defendant breaches
a plea bargain agreement, his plea and sentence
can be withdrawn and the original charges reinstated.

163
Q

Double Jeopardy: When Jeopardy Attaches - Exceptions Permitting Retrial

A
  1. Jury is unable to agree upon a verdict.
  2. Mistrials for manifest necessity.
  3. A retrial after a successful appeal is not double jeopardy. Note: Upon retrial after a successful
    appeal, the Defendant cannot be retried for a more
    serious offense than he was convicted of at the
    first trial
  4. Breach of an agreed upon plea bargain by the
    defendant. Rule: When the defendant breaches
    a plea bargain agreement, his plea and sentence
    can be withdrawn and the original charges reinstated.
164
Q

Same Offense/ Blockburger Test

A

Rule: Two crimes do not constitute the same offense **if each crime requires proof of an additional element
that the other does not

Lesser included offenses: Being put in jeopardy
for a greater offense bars retrial for any lesser
included offense.

Example: The crime of robbery includes the two lesser crimes of larceny and assault. If you are tried for robbery, you CANNOT be
retried for the lesser included offense of larceny.

Similarly, if you are first put in jeopardy for the lesser included offense (larceny), you CANNOT later be retried for the greater offense (robbery).

Exception: If a Defendant is tried and convicted on
a charge of battery, and the victim of the battery
later dies due to the injuries, the person can also
then be prosecuted for murder.

Note: Double jeopardy bars retrial for the same
offense by the same sovereign

165
Q

Privilege Against Self-Incrimination

A

Rule: The Fifth Amendment Privilege against self-incrimination can be asserted by anyone in any type of
case. Anyone asked a question under oath in any
kind of case, wherein the response might tend to
incriminate her is entitled to a Fifth Amendment
privilege

You must assert that privilege the first time the
question is asked or you will have waived your
Fifth Amendment privilege for all subsequent criminal prosecutions.

The privilege must be claimed in civil proceedings
to prevent the privilege from being waived for a
later criminal prosecution.

If the individual responds to the questions instead
of claiming the privilege during a civil proceeding,
he cannot later bar that evidence on Fifth Amendment grounds

166
Q

Scope of the Protection Against Self-Incrimination

A

Rule: The Fifth Amendment protects citizens from compelled testimony

167
Q

Scope of the Protection Against Self-Incrimination: Testimonial vs. Physical Evidence

A

Rule: The Fifth Amendment does not protect citizens
from having the government use physical evidence in ways to incriminate them.
Examples of non-testimonial evidence that the
prosecution can compel a person to produce:
1. A person’s blood sample;
2. A person’s handwriting sample;
3. A person’s voice sample;
4. A person’s hair sample.

A note on DNA collection: The Supreme Court recently held that it is constitutionally valid to take a DNA cheek swab after an arrest for a serious crime

168
Q

Scope of the Protection Against Self-Incrimination: Seizure of Incriminating Documents

A

Rule: The Fifth Amendment does not prohibit law
enforcement officers from searching for and seizing documents tending to incriminate a person. The privilege protects against being compelled to communicate information,
not against disclosure of communication made in the past

169
Q

Fifth Amendment and Prosecutorial Conduct (or Misconduct)

A

Rule: It is unconstitutional for the prosecutor to make
a negative comment on the defendant’s failure
to testify or on a defendant choosing to remain
silent after being given the Miranda warnings

Exception: The prosecutor can comment on the
defendant’s failure to take the stand when the
comment is in response to defense counsel’s assertion that defendant was not allowed to explain
his side of the story

Also note: In 2013 the Supreme Court held that if
a suspect chooses to remain silent before police read him his Miranda rights, that silence can be used against him in court

Note: When a prosecutor impermissibly comments on a
defendant’s silence, the harmless error test applies, and thus, the prosecutor’s conduct may not
be fatal to an otherwise sound conviction

170
Q

Fifth Amendment and Prosecutorial Conduct (or Misconduct) - Harmless Error Test

A

Rule: When a prosecutor impermissibly comments on a
defendant’s silence, the harmless error test applies, and thus, the prosecutor’s conduct may not be fatal to an otherwise sound conviction

Note: If in an essay question, must be SPECIFIC about what was said that was in violation of the rule

171
Q

Elimination of the Fifth Amendment Privilege

A
  1. Under grant of immunity
  2. No possibility of incrimination.
    Example: If the statute of limitations has run on
    the underlying crime, you are not entitled to a Fifth
    Amendment Privilege
  3. Waiver
    The criminal defendant who takes the witness
    stand waives the Fifth Amendment privilege as to
    all legitimate subjects of cross-examination
172
Q

Grand Juries (Generally) - Miranda Warnings

A

Rule: The proceedings of grand juries are secret. Defendant has no right to appear and no right to send
in witnesses.

No Right to Counsel or Miranda Warnings:
A witness subpoenaed to testify before a grand
jury does not have the right to receive Miranda warnings, and does not have the right to have an attorney present

173
Q

Grand Juries (Generally) - No Right to Have Evidence Excluded

A

A grand jury may base its indictment on evidence

that would not be admissible at trial

174
Q

Habeas Corpus

A

After Defendant has exhausted her appeals, she
may generally still attack her conviction(s) collaterally by beginning a new and separate civil proceeding, known as an application for writ of habeas corpus.
This proceeding focuses on the lawfulness of the
Defendant’s detention

175
Q

5 Steps for Search and Seizure Analysis

A
  1. Governmental Conduct
  2. Standing (to object, reasonable expectation of privacy
  3. 2 Ps of Step 3 - Valid Warrant - probable cause and particularity
  4. Any Good Faith Exceptions to Lack of Warrant
  5. If not, are there any exceptions to a warrant
    (or is there no need for a warrant)
176
Q

Difference Between 5th and 6th Amendments’ Right to Counsel

A

5A Right to Counsel, when you are a suspect before receiving a formal charge (for all questions, anything)

6A Right to Counsel - AFTER you have been formally charged, and the police can come back and talk to you outside the attorney for other things, right is offense specific)

177
Q

Implied Malice - “Malice aforethought”

A

Rule: Implied Malice known as “Malice aforethought” for common law murder can be satisfied by any of the following: (i) the intent to kill; (ii) the intent to inflict great bodily injury; (iii) depraved heart, a reckless indifference to an unjustifiably high risk to human life; or (iv) the intent to commit a felony

July 2021 Bar Exam (8 decks)

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