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Last Minute Bar Prep > Criminal Law / Procedure > Flashcards

Criminal Law / Procedure Flashcards

1
Q

How long does the prohibition against questioning a detainee after they invoke Miranda rights last?

A

The entire time the detainee is in custody for interrogation purposes, plus 14 more days after detainee returns to normal life (which can include “normal life” in jail).

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2
Q

What are the states of mind in which malice aforethought exists?

A

1) intent to kill
2) intent to inflict great bodily injury
3) reckless indifference to an unjustifiably high risk to human life, or
4) the intent to commit a felony

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3
Q

When can voluntary intoxication be a defense to specific intent crimes?

A

When it prevents the defendant from formulating the requisite intent

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4
Q

When can one not raise a voluntary intoxication defense?

A

If you had the specific intent, then drank to strengthen nerve or loosen up

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5
Q

What are the elements of assault in criminal law?

A

Either
- Attempt to commit battery OR
- Intent to place another in fear of imminent injury

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6
Q

What are the four types of malice aforethought?

A
  • Intent to kill (presumed if deadly weapon is used)
  • Intent to commit grievous bodily injury
  • Reckless indifference to human life
  • Felony murder rule
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7
Q

What is the general definition of murder (basic)?

A

An unlawful killing with malice

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8
Q

What are the elements of voluntary manslaughter?

A

Killing with
- Reasonable provocation
- D was in fact provoked
- No time to cool off, and
- D did not in fact cool off

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9
Q

What are the types of involuntary manslaughter?

A
  • Gross negligence (disregard of substantial danger of serious harm/death) OR
  • misdemeanor manslaughter
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10
Q

What are the two common types/requirements for 1st Degree murder?

A
  • with premeditation AND deliberation, OR
  • Felony murder during dangerous felony
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11
Q

What are the elements of embezzlement?

A
  • Fraudulent conversion
  • of personal property
  • of another
  • by one in lawful possession
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12
Q

What are the elements of false pretenses?

A
  • D knowingly makes
  • false representation
  • of past or present material fact
  • which causes another to
  • convey title
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13
Q

What are the elements of robbery?

A
  • same elements of larceny, and
  • property taken from person or their presence
  • through use of force or fear
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14
Q

What are the elements of burglary?

A
  • breaking and entering
  • of dwelling house
  • nighttime
  • intent to commit felony therein
    (if modern rule, can be any structure or time)
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15
Q

What are the elements of arson?

A
  • Malicious burning
  • of a dwelling house
  • of another

Modern rule: most structures and explosives count

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16
Q

What are the elements of solicitation?

A
  • Request or encourage
  • another to commit a crime
  • with intent they commit a crime
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17
Q

What happens if the other person commits a crime they were solicited to commit?

A

The solicitation merges into the actual crime

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18
Q

What are the elements of conspiracy?

A
  • Agreement
  • between two or more people
  • intent to commit unlawful act
  • Majority states require “overt act”
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19
Q

When is a co-conspirator liable for acts of their co-conspirator?

A
  • if acts were reasonably foreseeable and
  • in furtherance of conspiracy objective
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20
Q

Does conspiracy merge into the crime?

A

No–stays as a separate crime

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21
Q

What are the elements of attempt?

A
  • Intent to commit crime
  • Affirmative act (must go beyond mere preparation)
  • Merges into actual crime
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22
Q

What defines an accomplice?

A
  • Aids, abets, encourages principal
  • in carrying out of a crime
  • but doesn’t commit actual crime
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23
Q

When is an accomplice liable for additional crimes of accomplices?

A

if they were foreseeable

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24
Q

What are the elements of the M’Naghten test?

A
  • D has mental disease
  • Disease causes defect in reasoning, resulting in
  • not understanding nature and quality of the act or
  • knowing act was wrong
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25
Q

Elements of irresistible impulse test?

A
  • D has mental disease
  • D unable to control conduct due to disease
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26
Q

Elements of Durham test?

A
  • Conduct is the product of mental illness (a but for test)
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27
Q

Elements of model penal code insanity test?

A
  • D lacks substantial capacity to appreciate criminality of conduct
  • D cannot conform conduct to requirements of law
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28
Q

What are the elements of the necessity defense?

A
  • Reasonable belief that committing an act is
  • necessary to avoid
  • imminent and greater injury to society
29
Q

What effect does mistake of fact have on liability?

A

Negates specific intent, and can negate general intent if the mistake is reasonable

30
Q

What effect does mistake of law have on liability?

A

No effect–cannot serve as a defense

31
Q

What is factual impossibility? Is it a defense?

A

D makes mistake about an issue of fact, it is no defense

32
Q

What is legal impossibility? Is it a defense?

A

D thinks an act is a crime, but in reality it isn’t.

This is a valid defense–no crime has been committed.

33
Q

What is probable cause?

A

Reasonable belief that a law was violated

34
Q

What are the exceptions to needing a warrant?

A
  • Search incident to lawful arrest
  • Plain view
  • Automobile exception
  • Consent exception
  • Exigent circumstances
  • Stop and Frisk
35
Q

What rights does a defendant have to counsel under 5A/Miranda?

A
  • Right to counsel if accused makes unambiguous request to invoke
  • Police have to cease all questioning
36
Q

When is double jeopardy applicable/attaches?

A

When jury is sworn in (for jury trial) or first witness is sworn in (for bench trial)

37
Q

What is a 5A due process limitation on identifications?

A

Identifications cannot be unnecessarily suggestive

38
Q

To which circumstances/events does the 6A right to counsel not apply?

A
  • photo identifications
  • handwriting ID’s
  • Fingerprints
  • physical evidence
39
Q

To which events/circumstances does 6A right to counsel apply?

A
  • lineups
  • show-ups
  • sentencing
40
Q

When does a criminal defendant get guaranteed a jury trial?

A

When charged with a serious offense with potential for 6+ months in jail

41
Q

How can a D prove a jury is not a fair cross-section?

A

Show
- group excluded is distinctive
- # in representative group unreasonable compared to # in community
- and systematic exclusion

42
Q

What is the exclusionary rule?

A

Prosecution can’t use evidence if found in violation of D’s 4th, 5th, or 6th Amendment rights

43
Q

What are the main exceptions to the fruit of the poisonous tree doctrine?

A
  • Evidence came from independent source
  • Inevitable discovery
  • Purged taint
44
Q

For what purpose can excluded evidence from a criminal proceeding still be used?

A
  • to impeach
  • in civil, parole, or grand jury hearings
45
Q

What is the good faith warrant exception?

A

Evidence is not barred under exclusionary rule if officers acted in good faith

46
Q

How do you analyze whether a D’s confession was voluntary?

A
  • No police coercion
  • Totality of the circumstances test
  • Mental illness is irrelevant
47
Q

Which classes of defendants can never be sentenced to death?

A

Mentally retarded or minor children

48
Q

What are the inherently dangerous felonies?

A

BARRK
Burglary
Arson
Rape
Robbery
Kidnapping

49
Q

What is the majority rule for felony murder as to liability for the death of a bystander by a police officer or by the victim?

A

Agency theory–D is not liable for the death in these circumstances

50
Q

What are definitions of premeditation and deliberation?

A

Premeditation – time to reflect upon idea
Deliberation - acted in cool/dispassionate manner

51
Q

At common law, when does conspiracy occur?

A

The moment the agreement was made

52
Q

What is required to constitute an overt act for conspiracy?

A

Very little–can be as little as preparation

53
Q

Can someone be guilty for a unilateral conspiracy?

A

Yes–if only one party has criminal intent and agrees to do a crime with an undercover police officer, they can be liable under the modern view.

Not under common law–requires bilateral agreement

54
Q

How can someone withdraw from a conspiracy?

A

Cannot withdraw after agreement/formation.

BUT they can withdraw for purposes of future crimes if:
- communicate withdrawal to all co-conspirators
- take an affirmative action to withdraw

55
Q

How can an accomplice withdraw from a crime?

A

Can withdraw before crime is committed, but have to render any prior assistance ineffective.

56
Q

What is a good mnemonic for exceptions to the warrant requirement?

A

SPACES

S - Search incident to lawful arrest
P - Plain View Exception
A - Automobile Exception
C - Consent
E - Exigent Circumstances
S - Stop and Frisk

57
Q

To what type of conversations/interactions does Miranda apply?

A

Custodial interrogations

58
Q

When is a suspect “in custody”?

A

If a reasonable person would believe that he is not free to leave

59
Q

What constitutes interrogation under 5th Amendment?

A

Words or actions by police that they should know are reasonably likely to elicit an incriminating response from the subject

60
Q

Once a suspect has unambiguously invoked Miranda rights, what can officers do?

A

Cannot re-Mirandize him unless there has been a sufficient break (14 days at least) in custody

61
Q

What is the result when a suspect/accused unambiguously indicates he wishes to speak to counsel?

A

Police must cease all questioning until suspect talks to lawyer, and lawyer must be present for further questioning

62
Q

When are statements considered testimonial?

A

When the circumstances indicate there is no ongoing emergency, and primary purpose of interrogation is to establish or prove events for future prosecution

63
Q

When are statements considered nontestimonial?

A

When primary purpose of police interrogation is to deal with an ongoing emergency (e.g. 911 call)

64
Q

When two defendants are jointly tried and one confesses, what rights does the other defendant have?

A

Right to prohibit use of that statement against themselves unless it can be redacted, or the co-defendant who confessed takes the stand and can be cross-examined.

65
Q

When will co-defendants charged with the same crime have their trial severed?

A

Judge will sever if joint trial would cause substantial prejudice to a defendant

66
Q

What requirement must a criminal defendant meet to bring an exclusionary rule challenge?

A

Must have standing

67
Q

What is another name for the purged taint exception to exclusionary rule?

A

Sufficient number of additional factors intervening means the link is too tenuous

68
Q

Is a confession by someone who is mentally ill admissible?

A

Yes

69
Q

When a confession is the result of police coercion, can the prosecution use it?

A

Not during case in chief OR to impeach defendant (more restrictive than Miranda violation)

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