CRIMINAL LAW AND PROCEDURE

Question 1

Accomplice Liability

Answer 1

Attaches to a party that assists or encourages the principal with the intent that the crime is committed.

*Mere presence at the scene is not enough.

• Liable for all crimes committed that he aids or encourages and all “natural and probable results” of the crime that he intends to assist.

Question 2

Accessory-after-the-fact

Answer 2

Knowingly assists a person who has committed a felony with intent to help him avoid arrest, trial, or conviction.

Question 3

Murder

Answer 3

Unlawful killing of a human being w. malice aforethought.

Question 4

Mental States for Malice Aforethought to exist?

Answer 4

1) Intent to kill;

2) Intent to cause serious bodily harm;

3) Killing with a disregard for an unjustifably high risk to human life;

4) a killing in the commission of an inherently dangerous felony.

Question 5

Inherently dangerous felonies for felony murder.

Answer 5

(BARRK):

Burglary;

Arson;

Robbery;

Rape; OR

Kidnapping

Question 6

First-Degree Murder

Answer 6

An intentional killing with premeditation and deliberation (e.g., poisoning someone).

Question 7

Voluntary Manslaughter

Answer 7

An intentional killing of a human being in the heat of passion due to adequate provocation (e.g., D finds wife in bed with another or D is punched in the face by someone and is enraged).

Question 8

Second-degree murder

Answer 8

Statutorily all other murders that are not first-degree murder. Apply malice aforethought.

Question 9

Involuntary Manslaughter

Answer 9

A killing due to gross negligence or recklessness (e.g., a parent does not take his extremely sick infant to the free local clinic and the infant dies); OR

A killing during a misdemeanor or felony that does not qualify for felony murder (misdemeanor manslaughter rule).

Question 10

Specific Intent

Answer 10

Acts with the intent to commit the act along with a desire for the consequences that follow.

Question 11

Specific Intent Crimes

Answer 11

Students Can Always Fake Laugh, Even For Ridiculous Bar Facts

S: Solicitation;

C: Conspiracy;

A: Attempt;

F: Forgery;

L: Larceny;

E: Embezzlement;

F: False Pretenses

R: Robbery;

B: Burglary;

F: First-Degree Murder

Question 12

Assault

Answer 12

An attempted battery or the intentional infliction of apprehension.

Question 13

Larceny

Answer 13

The trespassory taking and carrying away of personal property of another with the intent to permanently deprive them thereof.

Question 14

Larceny by Trick

Answer 14

D intentionally makes a false representation of material past or existing fact to obtain custody (but not title) of personal property of another.

Question 15

False Pretenses

Answer 15

This is the same as larceny by trick, except D obtains TITLE to the property with the intent to defraud.

Tip: Look at what the victim intends to do at the time he hands over the property. If the victim hands it over and never intends to get the property back, it is false pretenses. Otherwise, it is larceny by trick.

Question 16

Embezzlement

Answer 16

The fraudulent conversion or misappropriation of property of another by one who is already in lawful possession of that property.

Question 17

Robbery

Answer 17

Larceny + Taking from another person’s presence + force or threat of force.

*Victim must actually be in fear.

Question 18

Burglary

Answer 18

Breaking and entering the dwelling of another at night with the intent to commit a felony or larceny therein.

Tip: D must have the intent to commit the felony or larceny at the time he breaks in. He cannot form it while inside.

Question 19

Attempt

Answer 19

Specific intent to complete the underlying offense + substantial step toward commission (MPC) or gets dangerously close (common law).

Question 20

Does Attempt merge?

Answer 20

Yes. One cannot be convicted of attempt and a completed crime.

Question 21

Conspiracy

Answer 21

An agreement by two or more people to commit a crime, an overt act in furtherance of the crime (in some states), intent to accomplish its objectives.

Question 22

Does Conspiracy merge?

Answer 22

NO!

Question 23

Co-conspirator liability

Answer 23

D is also liable for all other crimes committed by his coconspirators so long as the crimes were foreseeable and in furtherance of the conspiracy. (Withdrawal is not a defense but will cut off liability for any crimes committed after the withdrawal.)

Question 24

Solicitation

Answer 24

D requests, encourages, advises, or commands that someone commit a crime, with the intent they commit the crime.

Question 25

Defenses to Inchoate Crimes

Answer 25

Factual impossibility (e.g., the crime was impossible to complete) and withdrawing (e.g., changing one’s mind) generally are NOT defenses to inchoate crimes.

Question 26

General Intent

Answer 26

D is generally aware that the crime will result in consequence.

Question 27

General Intent Crimes

Answer 27

Battery Rape Kidnapping

Question 28

Battery

Answer 28

The unlawful application of force to another resulting in bodily injury or offensive touching.

Question 29

Rape

Answer 29

Unlawful sexual intercourse without consent using force or threat of force.

Question 30

Kidnapping

Answer 30

Unlawful confinement or restraint that involves moving or hiding the victim.

Question 31

Malice

Answer 31

D acts recklessly

Question 32

Arson

Answer 32

The malicious burning of the dwelling of another.

Question 33

Strict liability

Answer 33

There is no mens rea required strict liability crimes; engaging in the act is sufficient.S

Question 34

Strict Liability Crimes

Answer 34

Stautory Rape (sexual intercourse with a minor); Regulatory Offenses (selling contaminated food, littering, traffic offenses).

Question 35

Self-Defense

Answer 35

Available if D reasonably believed force was necessary to avoid the imminent use of unlawful force by another. Defense of others is also a recognized defense if the person reasonably believed the person they were defending was entitled to self-defense.

Question 36

Insanity

Answer 36

M‘Naghten rules. D must prove he suffered a disease of the mind that caused a defect of reason and he lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions; MPC (combination of M'Nagthen and Irresistible Impulse): Could not understand wrongfulness or conform actions to societal standards; Durham Test: conduct was simply the "but-for" result of the mental illness; Irresistible Impulse: could not conform actions to societal standards.

Question 37

Incompetency

Answer 37

If D is unable to understand the nature of the proceedings against him or assist his lawyer, he may be incompetent to stand trial.

Question 38

Voluntary Intoxication v. Involuntary Intoxication

Answer 38

Voluntary intoxication is a defense to specific intent crimes only if it negates the specific intent. Involuntary intoxication is treated the same as insanity.

Question 39

Mistake of fact

Answer 39

For specific intent crimes, a reasonable or unreasonable MOF can serve as a defense. For general intent or malice crimes, only a reasonable MOF is a defense. For strict liability crimes, MOF is not a defense.

Question 40

Mistake of law

Answer 40

Generally, MOL is not a defense (even when relying on one’s lawyer!). There are very narrow exceptions to this general rule.

Question 41

Necessity

Answer 41

This is a defense if D reasonably believed his criminal conduct was necessary to prevent a greater harm and is not at fault in creating the situation that required the necessity.

Question 42

Duress

Answer 42

This is a defense if D reasonably feared that if he did not perform the crime, either he or another would suffer imminent death or serious bodily injury. **Duress cannot be used as a defense to homicide.

Question 43

Burdens of proof and persuasion

Answer 43

The prosecution must prove every element of a crime beyond a reasonable doubt. D may be required to prove any affirmative defenses.

Question 44

Omissions and Liability

Answer 44

D is not liable for a failure to act (omission) unless there is a legal duty to act—e.g., a duty created by a statute, contract, or relationship (e.g., spouse to spouse or parent to child).

Question 45

Fourth Amendment

Answer 45

Under the Fourth Amendment of the federal constitution, a citizen is afforded the right to be free from unreasonable searches and seizures.

Question 46

Who has standing to raise a Fourth Amendment issue?

Answer 46

Anyone who has a reasonable expectation of privacy in the area to be searched. Katz Test: 1) subjective (did the D, in fact, have an expectation of privacy?; 2) objective (would a reasonable person have had a similar expectation of privacy).

Question 47

Examples of places where a person would have a reasonable expectation of privacy?

Answer 47

Home (includes overnight guest status); Hotel Room; Offices; Curtilage (look at if its enclosed and measures taken to keep it out of public view); Luggage (exception: no expectation is smells emitted).

Question 48

Requirements of a valid warrant?

Answer 48

A valid warrant requires probable cause, particularity, and must be issued by an unbiased magistrate. Officers should follow warrant limits and generally should knock and announce their presence. Note: An arrest warrant is not needed if the suspect is in a public place. An arrest warrant is needed if D is at his home or at the home of a third party (in the latter case, a search warrant is also needed).

Question 49

Good faith exception

Answer 49

Good faith or a reasonable mistake by the officer saves a defective warrant. This is not present if there are serious problems with the affidavit (e.g., it is based on an officer’s lies), search warrant, or magistrate (e.g., if she is not neutral).

Question 50

Automobile exception

Answer 50

Officers can search an automobile if they have probable cause to believe that evidence, instrumentalities, or fruits of a crime exist within it. Tip: this includes the trunk if there is probable cause to believe evidence is in the trunk.

Question 51

Search incident to lawful arrest

Answer 51

At the time of a lawful arrest (or “contemporaneous” with it), an officer may conduct certain searches of the arrestee (including his person, clothing, and his “wingspan” or grabable space) without a warrant in order to keep the officer safe and to preserve evidence. Tip: the officer may not search the trunk under this exception. Exception if the arrestee is in a vehicle: once the arrestee is secured, the police officer can only search the vehicle if it is reasonable to believe it contains evidence of the crime for which the suspect was arrested.

Question 52

Plain view exception

Answer 52

An officer, who is lawfully present in the area that he is in, may seize an item if it is “immediately apparent that it is contraband or evidence of a crime.” Tip: this extends to other senses as well (plain smell and plain feel).

Question 53

Administrative search exception

Answer 53

(1) officers can search arrestees and impounded vehicles; (2) public school officials can search students and their personal effects (e.g., backpack, purse, lockers, etc.) upon reasonable suspicion; and (3) random drug testing is permitted for public school children involved in any extracurricular activity.

Question 54

Consent exception to the warrant requirement

Answer 54

If one with actual or apparent authority to consent gives consent voluntarily, officers may search the areas to which they understand the consent to extend. Tip: a cotenant can consent to search of areas over which he has control but other cotenants who are present may revoke the consent.

Question 55

Emergency circumstances exception

Answer 55

This comes up (1) when an officer is in hot pursuit of a suspect (Tip: there must be probable cause to believe that the suspect has committed a crime and he is in a particular place), (2) if there is a serious injury or threat of injury, or (3) if evidence of a crime likely will disappear before a warrant can be obtained.

Question 56

Terry Stop and Frisk

Answer 56

An exception where only reasonable suspicion is needed. For a Terry stop, the officer needs reasonable suspicion that criminal activity is afoot. For a Terry frisk, the officer needs a reasonable belief that the suspect is armed and dangerous. Tip: the officer can only frisk for weapons.

Question 57

Privilege Against Self-Incrimination

Answer 57

Under the Fifth Amendment, this privilege protects a witness from having to give testimony against himself. The prosecution may give use or transaction immunity to the witness to compel the witness to testify.

Question 58

When does the privilege against self-incrimination not apply?

Answer 58

This privilege does not apply when the government admits D’s blood, handwriting, or voice against him in court. Further, it does not apply to lineups.

Question 59

Double Jeopardy

Answer 59

Under the Fifth Amendment, "[n]o person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” The Double Jeopardy Clause prevents both reprosecution after acquittal and after conviction (if the guilty verdict was set aside due to insufficient evidence presented at trial), and reprosecution for the same offense.

Question 60

When does jeopardy attach?

Answer 60

Jeopardy “attaches” when the jury is impaneled and sworn in a jury trial or when the first witness is sworn in a bench trial.

Question 61

Same Offense for Double Jeopardy (Blockburger Test)

Answer 61

If each crime contains an element that the other does not, they are not considered to be the “same offense.”

Question 62

Exceptions to Double Jeopardy

Answer 62

A defendant may be retried without violating double jeopardy when: D successfully appeals conviction; Hung jury; Separate sovereigns (e.g., the state and federal government, or different states).

Question 63

Right to a Fair Trial by Jury

Answer 63

The jury pool must represent a cross-section of the community. Tip: the jury itself need not be diverse.

Question 64

Right to Counsel

Answer 64

Each D has the right to effective assistance of counsel. This extends to the first appeal. In order to prove ineffective assistance of counsel, D must show that his lawyer’s performance was deficient and fell below an objective standard of reasonableness and there is a reasonable probability that but for the ineffective assistance, the result would be different.

Question 65

Guilty Plea

Answer 65

D may choose to plead guilty instead of going to trial. D may withdraw a guilty plea before sentencing at any time. If sentencing has taken place, D must show a fair and just reason to withdraw it (e.g., counsel was ineffective, the plea was involuntary, the prosecutor did not act as promised, or the wrong court heard the plea).

Question 66

Cruel and Unusual Punishment

Answer 66

Under the Eighth Amendment, a criminal defendant may not be exposed to excessive punishment that is disproportionate to the crime they stand convicted of.

Question 67

Death Penalty

Answer 67

There are some defendants who cannot be given the death penalty—e.g., those with an intellectual disability; those who are insane at the time the execution is set; those who were minors when they committed a crime; those who rape a person if the victim didn’t die; and those who are convicted of felony murder but “neither took life, attempted to take life, nor intended to take life” (e.g., the getaway driver).Pa

Question 68

Plain Error

Answer 68

A plain error is one that affects his substantial rights and is appealable even if not objected to during trial.

Question 69

Harmless Error and burden of proof.

Answer 69

A harmless error will not serve to overturn a verdict; The government must prove beyond a reasonable doubt that the error was harmless.

Question 70

Miranda Rights

Answer 70

The Fifth Amendment contains the right to remain silent and the right to counsel. This right attaches whenever there is a custodial interrogation.

Question 71

Requirements for Miranda to Apply:

Answer 71

1) In-Custody (a reasonable person would not feel free to leave); 2) Interrogation (direct questioning or functional equivalent: when the police know or should know that their words or actions are likely to elicit an incriminating response); 3) Government Actor (law enforcement or someone acting under the direction of law enforcement).

Question 72

Effect of Miranda Violation

Answer 72

Any confession is excluded in the prosecutor's case-in-chief. Tip: the confession may not be admitted (except for impeachment), but if it led to physical fruits (e.g., evidence like the murder weapon), those fruits may be admitted.

Question 73

Miranda Waiver

Answer 73

Waiver must be “knowing, intelligent, and voluntary.”

Question 74

Invoking Miranda

Answer 74

An invocation must be explicit and unequivocal. Tip: Remaining silent is not enough. Ironically, one must speak.

Question 75

Fifth Amendment Right to Counsel

Answer 75

Not offense-specific, so once invoked, police may not ask questions about any other crimes.

Question 76

Sixth Amendment Right to Counsel

Answer 76

This right attaches when D is formally charged. It attaches to all "critical stages" of the proceedings thereafter. Offense-specific: once invoked, police cannot question you re: the offense charged but may inquire about other unrelated offenses.

Question 77

Effect of Sixth Amendment Right to Counsel Violation

Answer 77

Any confession is excluded in the prosecutor's case-in-chief but may be used for impeachment.

Question 78

When does the Sixth Amendment Right to Counsel NOT APPLY?

Answer 78

This right exists for post-charge lineups and show-ups but not photo identifications, finger printing, or other forms of identification. There is no right to counsel for a pre-charge lineup, as this right attaches upon being charged!

Question 79

Fourteenth Amendment Due Process

Answer 79

This applies when police engage in coercive conduct that overcomes the suspect’s will.

Question 80

Effect of violating a suspect's Fourteenth Amendment right to Due Process?

Answer 80

An involuntary confession and “fruits” of confession are not admissible for any purpose.