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MBE > Criminal Law and Procedure > Flashcards

Criminal Law and Procedure Flashcards

(77 cards)

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1
Q

Insanity - M’Naghten Test

A

When one has a mental disease and can’t appreciate the nature and quality of their action or understand that what they’re doing is wrong

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2
Q

Insanity - MPC

A

When the defendant lacks the substantial capacity to understand what they’re doing is wrong

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3
Q

Insanity - Standard of proof

A

Clear and convincing evidence

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4
Q

Voluntary intoxication - Definition? Used as a defense?

A

Definition = Voluntarily getting drunk
Used as a defense = for specific intent crimes because it negates the element of intent

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5
Q

General intent crimes?

A

Battery
Arson
Rape
Kidnapping
Manslaughter

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6
Q

Involuntary intoxication — when is it used as a defense?

A

Involuntary = A defense to all crimes
Voluntary = A defense to specific intent crimes

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7
Q

When can I use mistake as a defense?

A

Specific intent crime = Any mistake will be a defense, reasonable or not (bc it negates intent)

General intent crime = Mistake must be reasonable to use a defense

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8
Q

What are the types of impossibility, and when is it a defense?

A

Legal impossibility = Always a defense (burning your own house down simply doesn’t meet the elements of arson)

Factual Impossibility = NEVER a defense because you technically did the crime (guy has sex underage girl who lies about her age is guilty of statutory rape even though she lied)

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9
Q

Entrapment as a defense?

A

Applies when (1) law enforcement creates the criminal activity, and (2) the defendant is not predisposed to commit the crime

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10
Q

When can you use duress as a defense?

A

When you reasonably believe that you are under threat of great bodily harm or death.

EXCEPT: Duress is never a defense to murder

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11
Q

Defense of self, others, and property?

A

Requires reasonable belief of imminent danger or bodily harm

Can only use the same force being used against you. Deadly force is only allowed if you deadly force is being used against you.

Property = only reasonable force is allowed; deadly force is only allowed if you think you’re about to be killed

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12
Q

Larceny

A

Specific Intent Crime

Trespassory taking and carrying away of the personal property of another with intent to deprive
—Only needs to move an inch, and even if you put it back: if intent when moving was to steal, it’s larceny

RARE exception: continuing trespass = when you wrongfully take something just to examine, but you decide later to actually steal it

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13
Q

Burglary

A

Common law:
Breaking and entering
(Breaking can be physically, by fraud, or by force)
Into the dwelling of another
At night
With intent to commit a felony

Felony does NOT need to be complete, just intended at the time of the breaking

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14
Q

Robbery

A

Trespassory taking and carrying away of the property of another by intimidation, force, or fear.

It looks like larceny but turns on HOW you come to have the property.

Larceny MERGES into robbery (merger doctrine)

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15
Q

Assault

A

Two types:
(1) Intent to commit battery

(2) Intent to place someone in imminent fear of harmful or offensive conduct

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16
Q

Larceny by trick

A

Obtain POSSESSION to property by making a false statement. This crime is merely the words.

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17
Q

False pretenses

A

Obtaining TITLE to property by making a false statement

Common example: two-way fraudulent transactions (selling fake rolex)

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18
Q

Embezzlement

A

When you’re lawfully in possession of someone’s property, but then you convert it for your own use

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19
Q

Receiving stolen property

A

(1) you’re in physical possession of the stolen property

(2) you know it was stolen

(3) you intend to keep it

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20
Q

Forgery

A

Fraudulent making of a false document + with legal significance + Intent to make wrongful use of it

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21
Q

Accomplice Liability

A

(1) specific intent to achieve the crime

(2) aid or abet the completion of the crime

If crime is complete = accomplice is liable of the completed crime, as well

Crime not compete = only guilty of accomplice liability

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22
Q

Accessory before the fact? After the fact?

A

Before = Looks like accomplice liability, BUT you are NOT present at the scene of the crime (pretty narrow, rarely tested)

After = (1) felony is complete (2) accomplice knows it was complete (3) accomplice helps you get away with it! (housing you, destroying the evidence, etc)

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23
Q

General Intent Crimes and definitions?

A

Battery = unlawful application of force

Arson = malicious burning of the dwelling of another

Rape = unlawful sexual intercourse between male and female without consent (usually statute is provided)

Kidnapping = unlawful restraint of a person’s freedom by force (usually statute is provided)

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24
Q

What is the mens rea of a “malice crime” committed “maliciously?”

A

Malicious = Reckless

Applies to general intent crimes, even though the word malice seems like specific

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25
Who do search and seizure rules apply to?
Government actors! Cops, pigs, 12. Or someone acting under the direction of the cops. (rats, lackeys, goons)
26
What is a search?
A government search somewhere where there’s a reasonable expectation of privacy — enclosed spaces
27
Open Fields Doctrine
Illegal conduct done in the open where anyone can see and there’s no expectation of privacy can be accosted—That’s not a search.
28
What is the standard for a search?
Cop has to have probable cause —> Reasonable belief that it’s more probable than not that a crime took place
29
Requirements for a search
(1) government actor (2) reasonable expectation of privacy (3) probable cause (4) WARRANT
30
What is the warrant requirement?
To conduct a search, there must be a warrant (1) issued by a neutral, detached magistrate (2) with fresh facts not out-of-date that (3) lists very specifically where the cop can search
31
Knock-and-Announce Rule
If cops have a warrant, they typically have to knock and announce their presence before entering. But if they DON’T,,,, the search is still valid
32
Can informants establish probable cause?
Yes—cops can rely on informants (AKA narcs) for probable cause
33
Will an illegal search automatically dismiss indictment?
No!
34
What is a Protective Sweep and when can it happen?
Protective sweep = When the cops look around the house to make sure there’s no other criminals When allowed = Only if there are grounds for the cop to think there are other criminals (facts will tell you)
35
Warrant exception: Consent
If you consent to the search, the cop doesn’t need a warrant. Who can consent = if you own or have apparent authority over the premises or property or part of the property
36
Co-occupant consent rule?
If two people share a house and one person says no = cops can’t search Only one person home and they consent = cops can search Non-present co-occupant cannot refuse the search
37
Search incident to lawful arrest
Once cops arrest you lawfully, they can search you and anywhere in your wingspan
38
If you are arrested in the car, when can cops search the passenger compartment?
Cops can search passenger compartments if: (1) defendant is not secured (uncuffed with access to car) (2) reasonable belief of evidence of CRIME OF ARREST in the car
39
Inventory Search
After the arrest at the police station, cops can search the person and whole car
40
Exigent Circumstances
Cops can get evidence without a warrant if they have a reasonable belief that it could be lost or destroyed
41
Auto Exception - Traffic stop: Can cop search the car?
If there was no reason to pull someone over, that’s an illegal stop and nothing found during that stop is admissible. Traffic stop = Cop can give you a ticket, he cannot search anything without more evidence that you’ve committed a crime Traffic stop with other suspicious behavior = Cop can search the car if there’s evidence of other criminal activity
42
Automobile stop - Probable cause
Cops can search entire car if there’s probably cause that the car is carrying contraband (ex: pulling over car flagged in amber alert)
43
Border Search and Foreign land searches—Warrant requirement?
No warrant is necessary and these rules don’t apply at the border and on foreign land
44
Is a dog sniff in a public place a search?
No—the dog is not conducting a search.
45
Stop and frisk — When are these allowed?
Stop = Cop can stop you when there’s reasonable suspicion that criminal activity is afoot Frisk = Cop can frisk if there is reasonable belief that you’re armed and dangerous
46
Random automobile stops
Cops are not allowed to stop random cars based on whims! It is only allowed if there are regular checkpoints or generic method for searching not related to the car occupants themselves
47
When are you entitled to Miranda rights?
When you are making a statement in a custodial interrogation
48
What is a custodial interrogation?
Custody = when a reasonable person feels like there’s no option to leave (objective standard) handcuffs not required Interrogation = When the cop attempts to elicit a criminal response
49
What are the Miranda warnings?
(1) right to remain silent (2) anything you say will be held against you (3) right to counsel, either selected or appointed
50
What happens when a person asks for their lawyer during a custodial interrogation?
All interrogation questioning must stop! cease!
51
What is required to waive your Miranda rights?
You have to waive them KNOWINGLY and VOLUNTARILY, based on the totality of the circumstances
52
Right against Self-Incrimination
You can’t be forced to incriminate yourself, but you can be made to perform any necessary physical demonstration
53
What is the limit to suspect lineups?
The lineup cannot be unnecessarily suggestive to single someone out
54
Is there a right to counsel at a lineup?
Before the indictment = No After indictment = Yes
55
Right to counsel
5th amendment right to counsel = before the indictment 6th amendment right to counsel = after the charges are brought
56
When do you have a right to counsel and can you waive it?
You have a right to counsel at all critical points in the proceeding, and yes you can waive it Critical points are usually post-indictment
57
Can two defendants share counsel?
Yes, unless there starts to be a conflict
58
What right does an undercover cop boasting in a jail cell violate?
It violates the right to counsel, NOT Miranda rights
59
Guilty plea requirements
must be voluntarily and intelligently so you know what the consequences are
60
Severing the trial
If there is unfair prejudice in a shared trial, a defendant can sever the trials
61
Fair trial requirements?
(1) impartial judge (2) defendant must be competent to understand charges, even if it requires medication
62
Jury Trial rights for a fair trial?
Sentence is longer than 6 months Jury is a cross-section of community State trial with 6 members = must be unanimous State trial with 12 members = doesn’t have to be unanimous Federal trial with 12 members = must be unanimous Excluding jurors based on race or sex —> Violates Equal Protection
63
Is there a right to a public trial? Can the press attend?
Yes, there’s usually a right to a public trial, and press is allowed to attend, unless the judge has an overriding interest to close it This rule doesn’t apply to grand jury proceedings
64
What is the right of confrontation?
You have the right to confront and cross-examine all witnesses
65
When can a co-defendant’s confession be used against the other?
Only if the confessing co-defendant is available to testify
66
What must prosecution prove? And the defendant?
Prosecution = must prove every element beyond a reasonable doubt Defendant = must prove defenses by a preponderance of the evidence
67
When are mandatory presumptions allowed?
Not in criminal cases
68
Grand jury rules
(1) the accused has no right to be present during grand jury (2) exclusionary rule does not apply, so even illegally obtained evidence is admissible (3) grand jury witness has no right to counsel INSIDE the room
69
What is Double Jeopardy and when does it apply?
Double jeopardy = can’t be tried for the same thing twice Does NOT apply to anything that happened before trial #1
70
When does trial #1 begin for double jeopardy purposes?
Jury trial = when the jury is sworn and impaneled Not a jury trial = when the first witness is a sworn in
71
When does double jeopardy not apply?
Double jeopardy does not apply if the first trial did not end with a judgment on the merits. If it ended due to a mistrial or technicality, defendant can be retried.
72
What is the separate sovereign exception?
Separate sovereign is an exception to Double Jeopardy, which allows for you to be (1) charged for the same crime in different states; (2) charged in both state and federal court for the same crime; (3) but NOT charged in different counties within the same state
73
Double jeopardy—collateral estoppel rule?
There is no retrial allowed when the second trial requires an element that the defendant was acquitted of
74
Cruel and unusual punishment tule
Sentence must be proportionate to the crime AND to the sentences of other criminals for similar crimes
75
Is there a right to counsel during sentencing?
Yes, there’s a right to counsel during sentencing, AND you have the right to remain silent
76
Is Death Penalty cruel and unusual?
No, death penalty is not cruel and unusual AS LONG AS there are procedural safeguards to prevent arbitrary or discriminatory sentencing.
77
Who cannot be subjected to the death penalty?
(1) people with mental issues (2) people who were 18 at the time of the crime

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