Criminal Law and Procedure Flashcards

Question

Conspiracy - No Merger

Answer 1

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

Answer 2

Rule: The agreement need not be expressed. Intent can be inferred from conduct Two Approaches - Bilateral Approach** - Unilateral Approach (MPC)

Answer 3

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

Answer 4

Rule: The modern trend (and | MPC approach) requires that only one person have a genuine criminal intent

Answer 5

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)

Answer 6

Rule: Factual impossibility is no defense to conspiracy

Answer 7

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

Answer 8

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

Answer 9

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

Answer 10

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

Answer 11

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

Answer 12

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)

Answer 13

``` 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 ```

Answer 14

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

Answer 15

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

Answer 16

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

Answer 17

(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

Answer 18

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

Answer 19

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

Answer 20

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**

Answer 21

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.

Answer 22

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"

Answer 23

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

Answer 24

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

Answer 25

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

Answer 26

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

Answer 27

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

Answer 28

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

Answer 29

- Larceny - Embezzlement - False Pretenses - Robbery - Extortion - Forgery - Burglary - Arson

Answer 30

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

Answer 31

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

Answer 32

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

Answer 33

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

Answer 34

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

Answer 35

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

Answer 36

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

Answer 37

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

Answer 38

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

Answer 39

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

Answer 40

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

Answer 41

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

Answer 42

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

Answer 43

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

Answer 44

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)

Answer 45

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

Answer 46

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.

Answer 47

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

Answer 48

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

Answer 49

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

Answer 50

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

Answer 51

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

Answer 52

(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

Answer 53

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

Answer 54

Rule: Any exercise of control by a government agent | over a person or thing

Answer 55

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

Answer 56

Rule: Arrest warrants are generally not required before | arresting someone in a public place

Answer 57

Rule: Non-emergency arrest of an individual | in her home does require an arrest warrant

Answer 58

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

Answer 59

Rule: An unlawful arrest, by itself, has no impact on any | subsequent criminal prosecution

Answer 60

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

Answer 61

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

Answer 62

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

Answer 63

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

Answer 64

Rule: An automobile stop constitutes a seizure of all | occupants (driver and any passengers)

Answer 65

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

Answer 66

Rule: If an automobile is lawfully stopped, an officer | may order the occupants out of the car

Answer 67

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

Answer 68

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

Answer 69

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

Answer 70

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

Answer 71

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 2. The style of your handwriting 3. The paint on the outside of your car 4. Account records held by a bank 5. 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 6. Anything that can be seen across the open fields 7. Anything that can be seen from flying over the public air space 8. The odors emanating from your luggage or car 9. Your garbage set out on the curb for collection

Answer 72

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 2. 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

Answer 73

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

Answer 74

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

Answer 75

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)

Answer 76

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

Answer 77

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

Answer 78

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)

Answer 79

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

Answer 80

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

Answer 81

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

Answer 82

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

Answer 83

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

Answer 84

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

Answer 85

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

Answer 86

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)

Answer 87

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

Answer 88

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

Answer 89

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

Answer 90

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

Answer 91

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

Answer 92

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

Answer 93

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

Answer 94

Rule: Any confession must be voluntary for it to be admissible at trial - Voluntariness is assessed by the totality of the circumstances

Answer 95

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 ```

Answer 96

``` 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 ```

Answer 97

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

Answer 98

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

Answer 99

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

Answer 100

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

Answer 101

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

Answer 102

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

Answer 103

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

Answer 104

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

Answer 105

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

Answer 106

Rule: A Miranda waiver must be knowing and voluntary - Courts will employ a totality of circumstances test in making this determination

Answer 107

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

Answer 108

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

Answer 109

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

Answer 110

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

Answer 111

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?!"

Answer 112

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

Answer 113

Rule: Exclusion does not apply to grand jury proceedings. | • A grand jury witness may be compelled to testify based on illegally seized evidence

Answer 114

Rule: Exclusion is not an available remedy in civil proceedings

Answer 115

Rule: Exclusion is not an available remedy in parole | revocation proceedings

Answer 116

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

Answer 117

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

Answer 118

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

Answer 119

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

Answer 120

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

Answer 121

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

Answer 122

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

Answer 123

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 2. The affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it 3. The police officer or prosecutor lied to or misled the magistrate when seeking the warrant 4. If the magistrate is biased, and therefore has wholly abandoned his or her neutrality

Answer 124

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

Answer 125

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

Answer 126

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

Answer 127

Rule: The minimum number of jurors permissible is six (6). - Regardless of the number of jurors used (6-12), the verdict must be unanimous

Answer 128

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

Answer 129

Rule: A criminal defendant’s right to counsel applies to | all critical stages of a prosecution, including trial

Answer 130

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

Answer 131

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

Answer 132

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

Answer 133

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

Answer 134

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

Answer 135

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

Answer 136

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

Answer 137

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.

Answer 138

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.

Answer 139

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

Answer 140

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

Answer 141

Rule: The Fifth Amendment protects citizens from compelled testimony

Answer 142

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

Answer 143

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

Answer 144

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

Answer 145

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

Answer 146

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

Answer 147

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

Answer 148

A grand jury may base its indictment on evidence | that would not be admissible at trial

Answer 149

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

Answer 150

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)

Answer 151

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)

Answer 152

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

Criminal Law and Procedure Flashcards

(177 cards)