Criminal Law/Procedure Flashcards
(149 cards)
1
Q
Generally, a State has JDX over a crime if:
A
1) Any act constituting an element of the offense was committed in the State;
2) An act outside the State caused a result in the State;
3) The crime involved the neglect of a duty imposed by the law of the State;
4) There was an attempt or conspiracy outside the State plus an act inside the State; or
5) There was an attempt or conspiracy inside the State to commit an offense outside the State.
2
Q
Under Modern Law, the solicitation and completion of the crime are merged. Similarly, the attempt and completion of the crime are merge. However, what is NOT merged with the completed offense?
A
Conspiracy
3
Q
Under the MPC, a person may not be convicted of more than one _________ crime (i.e., conspiracy or solicitation)
A
Inchoate crimes
4
Q
What is a Felony?
A
Felonies are generally punishable by death or imprisonment for more than 1 year. Other crimes are misdemeanors.
5
Q
A crime always requires proof of:
A
1) Actus Reus;
2) Mens Rea;
3) A concurrence of the act and mental state; AND
4) Proof of a result and causation.
6
Q
What are examples of bodily movements that do not qualify for criminal liability?
A
1) Conduct that is not the product of the person’s own volition;
2) A reflexive or convulsive act;
3) An act performed while unconscious or asleep.
7
Q
The failure to act gives rise to liability only if:
A
1) There is a legal duty to act;
2) The D has knowledge of the fact giving rise to the duty to act; AND
3) It is reasonably possible to perform the duty
8
Q
A legal duty to act may arise from one of the 5 circumstances:
A
1) By Statute;
2) By Contract;
3) The relationship between the parties;
4) The voluntary assumption of care by the D for the victim; OR
5) The D created the peril for the victim.
9
Q
A specific intent crime is a crime that was committed with the specific intent or objective to complete it. What are the 11 specific intent crimes and what are the related intent to each crime?
A
1) Solicitation - Intent to have the person solicited commit the crime;
2) Conspiracy - Intent to have the crime completed;
3) Attempt - Intent to complete the crime;
4) First Degree Premeditated Murder - Premeditated intent to kill;
5) Assault - Intent to commit a battery;
6) Larceny - Intent to permanently deprive the other of their interest in the property taken;
7) Embezzlement - Intent to defraud;
8) False Pretenses - Intent to defraud;
9) Robbery - Intent to permanently deprive the other of their interest in the property taken;
10) Burglary - Intent to commit a felony in the dwelling;
11) Forgery - Intent to defraud.
10
Q
The intent necessary for malic crimes (common law murder and arson) requires:
A
A reckless disregard of an obvious or high risk that the particular harmful result will occur.
11
Q
Defenses to specific intent crimes do apply to malice crimes? True of False.
A
FALSE.
They Do NOT apply to malice crimes.
12
Q
Do strict liability offenses require a mens rea?
A
No.
The defendant can be found guilty from the mere fact that they committed the crime.
13
Q
What are the 4 general intent crimes?
A
1) Battery;
2) Rape;
3) Kidnapping;
4) False Imprisonment.
14
Q
The MPC eliminates the common law distinctions between general and specific intent and adopts the following categories of intent:
A
1) Purposefully;
2) Knowingly;
3) Recklessly;
4) Negligence.
15
Q
What is the MPC purposely intent?
A
A person acts purposely when their conscious object is to engage in certain conduct or cause a certain result.
[Subjective Standard]
16
Q
What is the MPC Knowingly intent?
A
A person acts knowingly with respect to the nature of their conduct when they are AWARE that their conduct is of a particular nature or that certain circumstances exist.
[Subjective Standard]
17
Q
What is the MPC Recklessly intent?
A
A person acts recklessly when they consciously disregard a substantial and unjustifiable risk that circumstances exist or that a prohibited result will follow, and this disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in that situation.
Recklessness involves both objective (“unjustifiable risk”) and subjective (“awareness”) elements.
[Subjective and Objective Standard]
18
Q
What is the MPC Negligence intent?
A
A person acts negligently when they fail to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care.
[Objective Standard]
19
Q
What is the doctrine of transferred intent?
A
The D may be liable when they intend the hard that is actually caused, but to a different victim or object.
This doctrine applies to homicide, battery, and arson. It does NOT apply to attempt.
20
Q
At Common law, parties to a crime include:
A
1) Principals in the first degree;
2) Principals in the 2nd degree;
3) Accessories before the fact;
4) Accessories after the fact.
21
Q
What are principals in the first degree?
A
Persons who actually engaged in the act or omission that constitutes the offense or who caused an innocent agent to do so.
22
Q
What are principals in the second degree?
A
Persons who aided, advised, or encouraged the principal AND were present at the crime.
23
Q
What are Accessories before the fact?
A
Persons who assisted or encouraged but were not present.
24
Q
What are Accessories after the fact?
A
Persons who, with knowledge that the other committed a felony, assisted them to escape arrest or punishment.
25
Under the Modern Statutes, all parties to the crime are either:
1) the Principal who, with the requisite mental state, actually engages in the act or omission that causes the criminal result; and
2) An accomplice is one who aids, advises, or encourages the principal in the commission of the crime charged.
26
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 a crime; and
2) The intent that the principal commit the substantive offense.
27
What is the exception to an accomplice receiving liability?
Members of a class protected by a statute that has been violated are exempt from liability.
28
When the substantive offense has recklessness or negligence as its mens rea, most JDX would hold that the intent element is satisfied if the accomplice:
1) Intended to facilitate the commission of the crime; and
2) Acted with recklessness or negligence (whichever is required by the particular crime).
29
A person who effectively withdraws from a crime before it is committed cannot be held guilty as an accomplice. Withdrawal must occur BEFORE the crime becomes unstoppable. A mere withdrawal from involvement without taking any additional action is NOT sufficient.
What are some appropriate actions to effectively withdraw?
1) If the person encouraged the crime, the perso must repudiate the encouragement;
2) If the person aided by providing assistance to the principal, the person must do everything possible to attempt to neutralize the assistance;
3) Notify the police or prevent the crime.
30
Inchoate means incomplete. What are the three inchoate offenses?
1) Conspiracy;
2) Solicitation;
3) Attempt
31
What are the elements of Conspiracy?
1) An agreement between 2 or more persons;
2) An intent to enter into the agreement; AND
3) An intent by at least two persons to achieve the objective of the agreement.
The object of the conspiracy must be criminal or the achievement of the lawful objective by criminal means.
32
When does a conspiracy terminate?
Upon completion of the wrongful objective.
33
A conspirator may be held liable for crimes committed by other conspirators if the crimes:
1) Were committed in furtherance of the objectives of the conspiracy; AND
2) Were foreseeable.
34
Under common law, Are there any defenses to conspiracy?
NO
1) Factual impossibility is NOT a defense to conspiracy
2) Withdrawal from a conspiracy is NOT a defense to the conspiracy. Conspiracy is complete as soon as the agreement is made and an act in furtherance is performed. Withdrawal is a defense for crimes committed.
35
How do you withdraw from subsequent crimes?
1) The D has taken an affirmative act notifying all members of the conspiracy of their intent to withdraw; AND
2) Notification must be done in a timely fashion so other members have opportunity to withdraw as well.
36
Under the MPC, how can the D withdraw from a conspiracy?
D must attempt or thwart the crime (notify the police)
37
What are the elements of solicitation?
Solicitation consists of asking, inciting, counseling, advising, urging or commanding another to commit a crime, with the intent that the person solicited commit the crime.
It is not necessary that the person solicited agree to commit the crime.
38
Attempt is an act, done with intent to commit a crime, that falls short of completing the crime. What are the elements of Attempt?
1) Specific intent plus
2) An over/substantial act in furtherance of the crime.
39
What is murder?
1) Unlawful killing of a human being with malice aforethought; AND
2) It was committed with one of the following states of mind:
- Intent to Kill;
- Intent to inflict great bodily injury;
- Reckless indifference to an unjustifiably high risk to human life ("abandoned and maligant heart" or "depraved heart"); or
- Intent to commit a felony (felony murder)
40
At common law, What are the inherently dangerous felonies that may constitute felony murder?
Burglary
Arson
Rape
Robbery
Kidnapping
41
What is Felony Murder?
Any death - even an accidental death - caused in the commission of or in an attempt to commit, a felony is murder. Malice is implied from the intent to commit the underlying felony.
42
What are the limitations to felony murder?
1) The D must have committed or attempted to commit the underlying felony; a defense that negates an element of the underlying offense will also be a defense to felony murder;
2) The felony must be distinct from the killing itself;
3) Death must have been a foreseeable result of the felony;
4) The death must have been caused before the D's "immediate flight" from the felony ended; once the felon has reached a place of "temporary safety," subsequent deaths are not felony murder;
5) In most JDX, the D is not liable for the felony murder when a co-felon is killed as a result of resistance from the felony victim or the police.
43
What is the proximate cause theory for felony murder?
Felons are liable for the death of innocent victims caused by someone other than a co-felon.
44
What is the Agency theory of felony murder?
The killing must be committed by a felon or their "agent" (accomplice).
45
What is voluntary manslaughter?
A killing that would be murder but for the existence of adequate provocation.
46
Provocation is adequate for voluntary manslaughter only if:
1) It was a provocation that would arose sudden and intense passion in the mind of an ordinary person, causing them to lose self-control;
2) The D was in fact provoked;
3) There was not sufficient time between provocation and the killing for passions of a reasonable person to cool; AND
4) The D in fact did not cool off between the provocation and the killing.
47
What is the Imperfect Self-Defense doctrine?
Murder may be reduced to manslaughter even though:
1) The D was at fault in starting the altercation; OR
2) The D unreasonably but honestly believed in the necessity of responding with deadly force.
48
What is Involuntary Manslaughter?
A killing is involuntary manslaughter if it was committed:
1) With criminal negligence (or by "recklessness" under the MPC); OR
2) During the commission of an unlawful act.
49
How do you distinguish "abandoned and Malignant heart" murder and involuntary manslaughter?
Abandoned and malignant heart murder at common law involves a high risk of death;
Involuntary manslaughter based on recklessness requires only a SUBSTANTIAL risk.
50
What is Battery?
An unlawful application of force to the person of another resulting in either (1) bodily injury or (2) an offensive touching.
51
Is Battery a specific intent crime?
No! It is a general intent crime.
52
What is Aggravated Battery?
(1) Battery with a deadly weapon;
2) Battery resulting in serious bodily harm; AND
3) Battery of a child, woman, or police officer.
53
What is Assault?
Assault is either:
1) An attempt to commit a battery; OR
2) The intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm.
If there has been an actual touching of the victim, the crime can only be battery, not assault.
54
What is Aggravated Assault?
Aggravated assault is an assault plus one of the following:
1) The use of a deadly or dangerous weapon; OR
2) With the intent to rape, maim, or murder.
55
What is False Imprisonment?
False Imprisonment consists of the unlawful confinement of a person without the person's valid consent.
MPC requires that the confinement must "interfere substantially" with the victim's liberty.
56
What is Kidnapping?
Unlawful confinement of a person that involves either:
1) Some movement of the victim; OR
2) Concealment of the victim in a "secret" place.
57
To be rape, the intercourse must be without effective consent. Lack of effective consent exists where:
1) Intercourse is accomplished by actual force
2) Intercourse is accomplished by threats of great and immediate bodily harm
3) The victim is incapable of consenting due to unconsciousness, intoxication, or mental condition; OR
4) The victim is fraudulently caused to believe that the act is not intercourse.
58
What is Larceny?
Larceny consists of:
1) A taking (obtaining control);
2) And carrying away (asportation);
3) Of tangible personal property;
4) Of another with possession;
5) By trespass;
6) With intent to permanently deprive that person of their interest in the property.
59
Under common law, What are the elements to Embezzlement?
Embezzlement is:
1) The fraudulent;
2) Conversion;
3) Of personal property;
4) Of another;
5) By a person in lawful possession of that property.
60
How do you distinguish Larceny and Embezzlement?
Embezzlement - The defendant misappropriates property while it is in their rightful possession.
Larceny - The defendant misappropriates property not in their possession.
61
What are the elements of False Pretenses?
The offense of false pretenses is:
1) Obtaining title;
2) To personal property of another;
3) By an intentional false statement of a past or existing fact;
4) With intent to defraud the other.
62
How do you distinguish False Pretenses and Larceny by Trick?
False Pretenses - the victim is tricked into giving up title to property.
Larceny by Trick - The victim is tricked by a misrepresentation of fact into giving up mere custody or possession of property.
63
What is Robbery?
Robbery consists of:
1) A taking;
2) Of personal property of another;
3) From the other's person or presence;
4) By force or threats of immediate death or physical injury to the victim, a family member, or some person in the victim's presence;
5) With the intent to permanently deprive them of it.
64
How do you distinguish Larceny and Robbery?
Robbery - Requires that the defendant use force or threats to obtain or retain the victim's property.
Larceny - Pickpocketing generally is larceny, but if the victim notices the attempt and resists, the taking would be robbery.
65
What is Receipt of Stolen Property?
Receipt of stolen property consists of:
1) Receiving possession and control;
2) Of "Stolen" personal property;
3) Known to have been obtained in a manner constituting a criminal offense;
4) By another person;
5) With the intent to permanently deprive the owner of their interest in it.
66
At common law, What is Forgery and what are the elements??
Forgery is the making or altering of a false writing with intent to defraud.
Forgery consists of the following:
1) Making or altering (by drafting, adding, or deleting);
2) A writing with apparent legal significance;
3) So that it is false;
4) With intent to defraud.
67
What does Uttering a forged instrument consists of:
1) Offering as genuine;
2) An instrument that may be the subject of forgery and is false;
3) With intent to defraud.
68
What does Common Law Burglary consist of?
1) A breaking;
2) And Entry;
3) Of a dwelling;
4) Of another;
5) At nighttime;
6) With the intent to commit a felony in the structure
Modern Statutes often eliminate many of these "technicalities."
69
Modern rules of Arson consists of:
1) The malicious;
2) Burning;
3) Of the dwelling;
4) Of another
Charring is sufficient for arson. A mere blackening is NOT sufficient for arson.
70
At common law [minority rule], the state of mind required for arson (malice) is satisfied by two ways:
Either:
1) The intentionally burning the dwelling of another;
2) Acting with reckless disregard of an obvious risk that the structure would burn.
71
The defense of insanity is basically the defendant was so mentally ill at the time of the crime that the defendant should be entitled to acquittal. What are the three types of tests to determine insanity?
1) M'Naghten Rule;
2) Irresistible Impulse Test;
3) MPC Test.
72
What is the M'Naghten Rule?
A defendant is entitled to acquittal if:
1) A disease of the mind;
2) Caused a defect of reason;
3) Such that the defendant lacked the ability at the time of their actions to either know the wrongfulness of their actions or understand the nature and quality of their actions.
73
What is the Irresistible Impulse Test?
A defendant is entitled to acquittal only if, because of a mental illness, they were unable to control their actions or conform their conduct to the law.
74
What is the MPC test for insanity?
A defendant is entitled to acquittal if they had a mental disease or defect, and as a result, they lacked the substantial capacity to either:
1) Appreciate the criminality of their conduct; OR
2) Conform their conduct to the requirements of law.
75
Intoxication may be raised as a defense to negate one of the elements of the crime charged. What are the two types of intoxication?
1) Voluntary; and
2) Involuntary
76
What are the elements of voluntary intoxication and what crimes may it be used as a defense against?
Voluntary, intentional taking of a substance known to be intoxicating.
Defense to specific intent crime if intoxication prevents formation of required intent.
77
What are the elements of involuntary intoxication and what crimes may it be used as a defense against?
Taking intoxicating substance without knowledge of its nature, under duress, or pursuant to medical advice.
Treated as mental illness; may be a defense to ALL crimes.
78
May intoxication be used as a defense to negate reckless state of mind?
NO
79
A person may use deadly force in self-defense if the person:
1) Is without fault;
2) Is confronted with "unlawful force"; and
3) Reasonably believes that they are threatened with imminent death or great bodily harm.
80
If one is the aggressor in the confrontation, they may use force in defense of themselves only if:
1) They effectively withdraw from the confrontation and communicate to the other their desire to do so; OR
2) The victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw.
81
When is mistake or ignorance of fact relevant to criminal liability?
Only if it shows that the defendant lacked the state of mind required for the crime.
It is irrelevant if the crime imposes "strict liability."
82
How do you distinguish Mistake or ignorance of fact with factual impossibility?
Even though in both situations the defendant is mistake about certain facts, the results are different.
Mistake - usually raised as a defense to a crime that has been completed; mistake of fact may negate the intent required for the crime.
Impossibility - Arises only when the defendant has failed to complete the crime because of their mistaken belief about the facts, and is being charged with an attempt to commit the crime; factual impossibility is NOT a defense to attempt.
83
What is entrapment?
Entrapment occurs if the intent to commit the crime originated not with the defendant but with law enforcement officers.
Entrapment exists only if:
1) The criminal design originated with law enforcement officers; AND
2) The defendant was not predisposed to commit the crime prior to contact by the government.
84
The 4th Amendment provides that people should be free from unreasonable searches and seizures. When does a seizure occur?
A seizure occurs when, under the totality of the circumstances, a reasonable person would feel that they were not free to decline the officer's requests or otherwise terminate the encounter.
85
When does an arrest occur?
When the police takes a person into custody against their will for purposes of criminal prosecution or interrogation.
An arrest must be based on probable cause.
86
What is the Terry Stops and when does it apply?
The Police have the authority to briefly detain a person even if they lack probable cause to arrest (Terry Stops).
If the police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts, they may detain a person for investigative purposes.
87
When may an officer conduct a protective frisk?
During a Terry stop (officer stops a person without probable cause for arrest if she has an articulable and reasonable suspicion of criminal activity) If the officer reasonably believes that the person may be armed and dangerous.
88
Like arrests, evidentiary searches and seizures must be reasonable to be valid under the 4th Amendment. Evidentiary search and seizures issues should be approached using the following analytical model:
1) Is there government conduct?
2) Is there standing?
3) Is there a valid warrant?
4) If no valid warrant, does the search/seizure fall within one of the 6 exceptions?
89
Is there standing for arguing an invalid search and seizure?
There are two ways in which searches and seizures can implicate an individual's 4th Amendment rights:
1) Search or seizure by a government agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy; OR
2) Physical intrusion by the govt into a constitutionally protected area to obtain information.
90
Regarding the standing for challenging an invalid search and seizure, what are the two requirements to constitute a person's expectation of privacy?
1) Must have right of possession in the place that was searched; AND
2) Must have property interest in the the items that were seized.
91
Subject to the totality of the circumstances, A person has a reasonable expectation of privacy at any time:
1) The person owned or had a right to possession of the place searched;
2) The place searched was in fact their home, whether or not they owned or had a right to possession of it; OR
3) The person was an overnight guest of the owner of the place searched.
92
What are the two core requirements for a facially valid search warrant:
1) Probable cause; and
2) Particularity.
93
All warrantless searches conducted by law enforcement officers are unconstitutional unless they fit into one of 6 recognized exceptions to the warrant requirement:
1) Search incident to constitutional arrest;
2) Automobile exception;
3) Plain View exception;
4) Consent;
5) Stop and Frisk;
6) Hot pursuit, evanescent evidence, and Emergency aid.
94
Under the search incident to constitutional arrest exception to warrantless searches, what may the police do?
The police may search the person and areas into which they might reach to obtain weapons or destroy evidence.
The police may also make a protective sweep of the area if they believe accomplices may be present.
The search must be CONTEMPORANEOUS in time and place with the arrest.
95
The police may conduct a search of the passenger compartment of an automobile incident to arrest ONLY IF at the time of the search:
1) The arrestee is unsecured and still may gain access to the interior of the vehicle; OR
2) The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.
96
How may the police search an automobile without a warrant under the automobile exception?
if the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search.
97
Under the plain view exception, the police may make a warrantless seizure when they:
1) Are legitimately on the premises;
2) Discover evidence, fruits or instrumentalities of crime, or contraband;
3) See such evidence in plain view; AND
4) Have probable cause to believe (it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime.
98
A warrantless search is valid if the police have a voluntary consent. True of false?
TRUE
99
What is the scope of a consented warrantless search?
The scope of the search may be limited by the scope of the consent, but generally extends to all areas to which a reasonable person under the circumstances would believe it extends.
100
What is Evanescent Evidence?
Evanescent evidence is evidence that might disappear quickly if the police took the time to get a warrant.
101
What is hot pursuit?
Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling.
If the police are not within 15 minutes behind the fleeing felon, it is not a hot pursuit that falls under this exception.
102
A school search will be held to be reasonable only if:
1) It offers a moderate chance of finding evidence of wrongdoing;
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 in light of the age and sex of the student and the nature of the infraction.
103
Wiretapping constitutes a search under the 4th Amendment. A valid warrant authorizing a wiretap may be issued if:
1) There is showing a probable cause;
2) The suspected persons involved in the conversations to be overheard are named;
3) The warrant describes with particularity the conversations that can be overheard;
4) The wiretap is limited to a short period of time;
5) The wiretap is terminated when the desired information has been obtained; AND
6) Return is made to the court, showing what conversations have been intercepted.
104
Under the 14th Amendment, for a self-incriminating statement to be admissible under the Due Process Clause, it must be:
VOLUNTARY as determined by the totality of the circumstances.
105
Under the 6th Amendment, the defendant has a right to counsel. What does the Amendment provide?
The 6th Amendment guarantees the right to the assistance of counsel in all criminal proceedings, which include all critical stages of a prosecution AFTER judicial proceedings have begun.
It prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel AFTER the defendant has been charged unless the defendant waived their right to counsel.
THIS IS OFFENSE SPECIFIC
106
A defendant has a right to counsel at what following stages:
1) Post-indictment interrogation, whether or not custodial;
2) Preliminary hearings to determine probable cause to prosecute;
3) Arraignment;
4) Post-charge lineups;
5) Guilty plea and sentencing;
6) Felony trials;
7) Misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed;
8) Overnight recesses during trial;
9) Appeals as a matter of right;
10) Appeals of guilty pleas
107
What is the remedy if the defendant was entitled to a lawyer at trial, and the trial failed to provide counsel?
The remedy is an automatic reversal of the conviction.
108
When are the Miranda warning required to be recited to the detainee?
They are required when a suspect is in custodial interrogation.
Anyone who is in custody of the government and accused of a crime must be given Miranda warnings PRIOR to interrogation by the police.
109
Determining whether custody for Miranda warning purposes exists is a two-step process:
1) Whether a reasonable person under the circumstances would feel that they were free to terminate the interrogation and leave [Freedom of movement test].
2) Whether the relevant environment presents the traditional arrest.
110
In general, evidence obtained in violation of the Miranda rules is inadmissible at trial under the exclusionary rule. Statements obtained in violation of the Miranda rules may be used to __________ the defendant's trial testimony, but may not be used as substantive evidence.
Impeach
111
What is the remedy for an unconstitutional identification?
The exclusion of the in-court identification
112
What is the exclusionary rule?
A judge-made doctrine that prohibits introduction of evidence obtained in violation of a defendant's 4th, 5th, and 6th Amendment Rights.
Unconstitutionally obtained evidence is inadmissible at trial, and all "fruit of the poisonous tree" must be excluded unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct.
113
What are the exceptions to fruit of the poisonous tree doctrine?
1) The fruits derived from statements obtained in violation of Miranda
2) Evidence obtained from a source independent of the original illegality
3) Evidence for which the connection between the unconstitutional police conduct and the evidence is remote (This includes intervening acts of free will from the defendant)
4) Inevitable discovery - prosecution can show that the police would have discovered the evidence whether or not the police acted unconstitutionally
5) Violations of the knock and announce rule
114
The exclusionary rule does not apply when the police arrest someone erroneously but in good faith thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law.
There are four 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 prosecution lied to or misled the magistrate when seeking the warrant
4) The magistrate is biased and therefore has wholly abandoned their neutrality
115
Some illegally obtained evidence may still be used to impeach the defendant's credibility if they take the stand at trial. What are two situations where this applies:
1) Voluntary confession taken in violation of the Miranda rights
2) Evidence obtained from an illegal search to impeach the defendant's statements only. (no one else)
116
Grand jury proceedings are conducted in secret. True of False. The defendant has the right to notice that the grand jury is considering an indictment against them, to be present and confront witnesses at the proceeding, and to introduce evidence before the grand jury.
FALSE
Defendant has NONE of these rights for a grand jury proceeding.
117
What are the three major differences between grand jury proceedings and criminal trials?
1) The "defendant" (grand jury witness) has no right to have counsel present during their grand jury testimony;
2) The grand jury may consider evidence that would be excluded at the criminal trial (for example, illegally obtained evidence or hearsay);
3) The "defendant" (grant jury witness) must appear if called, although they can refuse to answer specific questions on the grounds that they may incriminate them.
118
What is the standard used to determine whether a defendant's 6th Amendment right to a speedy trial has been violated?
Evaluation of the totality of the circumstances.
Factors include the length of the delay, reason for delay, whether defendant asserted their right, and prejudice to defendant.
119
What is the remedy for a violation of the 6th Amendment speedy trial?
Dismissal with prejudice.
120
When does the 6th Amendment right for speedy trial attach?
The right attaches when the defendant has been arrested or charged.
Note: The defendant does not need to know of the charges for the speedy trial rights to attach.
121
The govt has a duty to disclose material, exculpatory evidence to the D. Failure to disclose such evidence violates the Due Process Clause and is grounds for reversing a conviction if the D can prove that:
1) The evidence is favorable to the D because it either impeaches or is exculpatory; and
2) Prejudice has resulted (there is reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial).
122
When does the D have the right to trial by jury?
Only for serious offenses.
An offense is serious if imprisonment for more than 6 months is authorized.
123
Yes or no: Do jury verdicts have to be unanimous?
Yes
124
An equal protection-based attack on peremptory strikes involve three steps:
1) The D must show facts or circumstances that raise an inference that the exclusion was based on race or gender;
2) Upon such a showing, the prosecutor must come forward with a race-neutral explanation for the strike;
3) The judge then determines whether the prosecutor's explanation was genuine.
125
The right to counsel is available in misdemeanor cases only if:
Imprisonment is actually imposed.
If they receive no imprisonment, their right has not been violated; if they receive prison time, their right has been violated.
126
For a D to argue an ineffective counsel claim, they must show:
1) Deficient performance by counsel; and
2) But for the deficiency, the result of the proceeding would have been different.
127
If two persons are tried together and one has given a confession that implicates the other, the right of confrontation in 6th Amendment prohibits use of that statement, even where the confession interlocks with the defendant's own confession, which is admitted.
However, such a statement may be admitted if:
1) All portions referring to the other D can be eliminated;
2) The confessing D takes the stand and subjects themselves to cross-examination with respect to the truth or falsity of what the statement asserts; OR
3) The confession of the nontestifying co-defendant is being used to rebut the D's claim that their confession was obtained coercively
128
Under the confrontation clause in 6th Amendment, prior testimonal 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.
129
The judge must determine that the plea is voluntary and intelligent. The judge must be sure that the D knws and understands things such as:
1) The nature of the charge to which the plea is offered and the crucial elements of the crime charged;
2) The maximum possible penalty and any mandatory minimum; AND
3) That the defendant has a right not to plead guilty and that if they do plead guilty, they waive the right to trial.
130
Is there a federal constitutional right to an appeal?
NO
131
When do prison regulations impinge on due process rights?
Only if the regulations impose "atypical and significant hardship" in relation to the ordinary incidents of prison life.
132
Under the 5th Amendment, a person may not be retried for the same offense once jeopardy has attached. When does Jeopardy attach?
Jeopardy attaches in a jury trial at the empaneling and swearing of the jury.
In bench trials jeopardy attaches when the first witness is sworn.
133
What are the certain exceptions that permit retrial of a D even if jeopardy has attached:
1) A State may retry a D whose first trial ends in a hung jury;
2) If there was a medical emergency to abort the first trial;
3) If the D successfully appeals to get a new trial (D may not be tried for a greater offense than that for which they were convicted);
4) Charges may be reinstated after a D breaches their plea bargain;
5) If a D could have been tried for multiple charges in a single trial, but the D elects to have the offenses tried separately, jeopardy does not attach to the first trial for the other charges.
134
An exception to the double jeopardy bar exists if unlawful conduct that is subsequently used to prove the greater offense:
1) Has not occurred at the time of prosecution for the lesser offense; OR
2) Has not been discovered despite due diligence
135
Separate sovereigns can try a defendant for the same offense.
Does Attachment matter if there are two separate sovereigns intending to sue the D?
NO. Attachment does not matter if there are two separate sovereigns.
This is a distracting fact. The rule is simple: Separate Sovereigns can try a defendant for the same offense.
136
There are two important things to remember about the 5th Amendment self-incrimination privilege. What are they?
1) Only testimonial evidence is protected.
2) Only compelled testimonial evidence is privileged.
137
Juvenile court proceedings are proceedings against minors. The following rights must be given to a child during trial of a delinquency proceeding:
1) Written notice of charges;
2) Assistance of counsel;
3) Opportunity to confront and cross-examine witnesses;
4) The right not to testify; and
5) The right to have "guilt" established by proof beyond reasonable doubt.
138
A criminal attempt consists of:
1) A specific intent to commit the crime; AND
2) An overt act in furtherance of that intent.
139
Is mistake of law a valid defense?
NO DEFENSE
Even if it is reasonable, it is no defense,
140
Is mistake of fact a valid defense?
It depends.
General intent crimes may be a valid defense. So long as it is reasonable.
Specific intent crimes may be a valid defense. So long as it is an honest mistake of fact.
141
Criminal assault is either:
1) An attempt to commit a battery; OR
2) The intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm.
142
Does the exclusionary rule apply to grand jury proceedings?
NO
A grand jury may consider any evidence available to it in determining whether probable cause exists to return an indictment against the defendant.
Because the exclusionary rule does not apply, a grand jury may base its indictment on evidence that would not be admissible at trial.
143
Regarding the lawful police search under 4th Amendment, what is the open fields doctrine?
Areas outside the "curtilage" (dwelling house and outbuildings) are subject to police search, as these areas are held out to the public and are unprotected by the 4th Amendment.
144
Regarding 4th Amendment, Is there an expectation of privacy in objects or places held out to the public or that may be viewed from a public vantage point?
NO
Police may fly over an area to observe it with the naked eye
However, the police may not use technologically enhanced methods that are not available to the public to search areas
145
What must exist for a confession to be admissible for impeachment purposes?
The confession has to be voluntary (knowing and intelligent waiver of the D's Miranda rights
146
What are the main differences between 6th Amendment right to counsel and 5th Amendment right to counsel?
Under the 6th Amendment right to counsel, it applies whether or not the D is being interrogated by someone the D knows is a police officer.
The 6th Amendment is offense specific.
Under the 5th Amendment, it applies when D is in custodial interrogation by someone the detaintee KNOWS is a police officer.
147
Where charges can be tried in a single trial, but the D consents to having two separate trials, is there a double jeopardy violation?
NO
Consent to a second trial is an exception to the double jeopardy rule.
148
Generally, may the fruits of an unlawful search & seizure under the 4th amendment be admitted against the Defendant?
NO, unless an exception for a warrantless search/seizure applies.
149
If the defendant appears to be incompetent to testify at trial and no one raises the issue of the defendant's competency to stand trial, what is the responsibility of the trial judge?
The trial judge must raise the issue of competency, because the Constitution obligates her to do so.
