Criminal Law & Procedure

Question 1

What is homicide?

Answer 1

The unlawful killing of another with malice aforethought.

Question 2

What satisfies the malice element?

Answer 2

Intent EITHER to kill or to cause serious injury.

Question 3

What other things can satisfy the malice element?

Answer 3

Felony murder OR depraved heart murder.

Question 4

What is depraved heart murder?

Answer 4

The actor disregards an unreasonably high risk of harm to human life.

Question 5

Is it possible to be convicted of murder WITHOUT intending to kill

Answer 5

YES.

Question 6

REMEMBER :If a defendant satisfies the test for intentional murder, always look to see if theres sufficient provocation by the victim to knock the conviction down to voluntary manslaughter.

Answer 6

.

Question 7

REMEMBER: provocation is both subjective and objective. What does that mean?

Answer 7

The provocation must be enough to anger this defendant AND it should be of a type that would provoke a reasonable person to kill.

ALSO

THIS defendant must not have cooled off when the killing takes place AND a reasonable person would not have cooled off in these circumstances.

Question 8

What two types of involuntary manslaughter are there?

Answer 8

1) Criminal negligence; AND

2) Misdemeanor manslaughter.

Question 9

Define criminal negligence.

Answer 9

the defendant ignores a risk of harm to human life, and that risk is LESS than the risk represented by depraved heart murder.

Question 10

Define misdemeanor manslaughter.

Answer 10

the misdemeanor equivalent of felony murder.

Question 11

Example of difference between depraved heart murder and criminal negligence manslaughter?

Answer 11

Two men set out in seperate cars. One drives through town and shoots a gun into the window of a house where a crowded party is being held. He doesn’t intend to kill anyone but he does. The other drives out to the country and fires a gun into the window of an abandoned hunting cabin. He also doesn’t intend to kill, but he does. The man who drove through town commits depraved heart because of EXTREME negligence. The other criminal negligence.

Question 12

Define larceny?

Answer 12

Larceny is a trespassory taking and carrying away of the personal property of another with the intent to steal it.

Question 13

Define robbery?

Answer 13

Larceny from a person that is accomplished by force or fear.

Force or fear means the robber’s threat of immediate bodily injury or death (pointing a gun, loaded or unloaded). Fainting w/o threat does not count.

** One may commit robbery by rendering his victim helpless by drugs or alcohol **

Question 14

Define burglary?

Answer 14

The breaking and entering of the dwelling house of another, at night, with the intent to commit a felony therein.

Question 15

HINT: in larceny, the trespassory taking must be done with the INTENT TO STEAL.

Answer 15

If the actor intends only to borrow anthers property, there’s NO INTENT TO STEAL and thus no larceny.

Question 16

HINT: In larceny, if the intent to steal exists when he takes the goods but changes his mind later and returns them, it’s still larceny because the INTENT existed when the crime was committed.

Answer 16

.

Question 17

HINT: Burglary requires the intent to commit a felony when the breaking and entering occurs.

Answer 17

.

Question 18

REMEMBER: even an unreasonable belief can negate intent.

Answer 18

.

Question 19

What are the types of warrantless searches?

Answer 19

1) search incident to arrest;
2) Inventory searches;
3) Exigent Circumstances
4) Plain View Doctrine
5) Automobile searches
6) Consent searches
7) Stop and frisk
8) Regulatory Inspections.

Question 20

REMEMBER: the 4th amendment applies only to searches and siezures done by the POLICE or people working under the direction of the police.

Answer 20

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Question 21

REMEMBER: Miranda warnings are required ONLY when the police intend to conduct a CUSTODIAL interrogation.

Answer 21

.

Question 22

Define “custodial interrogation?”

Answer 22

The suspect is not free to leave. Thus, if the police arrest someone and have no intent to question him - no Miranda. (also, if the suspect voluntarily confesses - no Miranda).

Question 23

REMEMBER: Causation is ALWAYS required for criminal liability.

Answer 23

If the defendant’s conduct did not cause the victim’s injury, there’s NO criminal liability.

Question 24

Steps to analyze “best defense” questions.

Answer 24

1) Ask, does this answer choice apply to the facts.
2) Ask, is the answer choice a correct statement of the law?
3) Ask, is the argument sufficient to acquit the defendant?

Question 25

REMEMBER: In procedure questions involving a search, categorize the type of search FIRST, because what's valid in one set of circumstances will differ from what's valid in another.

Answer 25

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Question 26

REMEMBER: in procedure questions, watch for the "hidden" issue of standing.

Answer 26

Keep in mind that a person can object to a search ONLY If he has a legitimate expectation of privacy as to the place searched.

Question 27

HINT: in questions that state the jury believes a piece of testimony, treat that testimony as FACT.

Answer 27

.

Question 28

What are the three types of crimes?

Answer 28

Specific Intent - requires an actual subjective intent to cause a specific result. General Intent - requires only an intent to do the prescribed act. Strict Liability - requires no mens rea (regulatory offenses, regulation of food, drugs, firearms and crimes of morality).

Question 29

What is Mistake of Fact?

Answer 29

A defense where it negates the mens rea - must be HONEST!

Question 30

How does mistake of fact apply to the three types of crimes?

Answer 30

Specific Intent - any mistake, reasonable or unreasonable. General Intent - only REASONABLE mistake. Strict Liability - NO defense.

Question 31

What are the elements of a crime?

Answer 31

``` Actus Reus Mens Rea Concurrence Causation Defenses ```

Question 32

When is deadly force allowed?

Answer 32

1) To meet deadly force; OR | 2) To counter a threat of serious bodily harm.

Question 33

When is voluntary intoxication a defense?

Answer 33

A defense to a specific intent crime where it negates the mens tea, but no defense to a general intent crime (i.e. arson).

Question 34

What is the M'Naughten test?

Answer 34

It's the cognitive test. 1) The defendant does not know the nature and quality of his act; OR 2) he does not know what he was doing was wrong.

Question 35

What is the ALI/MPC insanity defense test?

Answer 35

It's the cognitive/volitional test. The defendant lacks the substantial capacity either to: 1) appreciate the criminality of his conduct; OR 2) conform his conduct to the requirements of the law.

Question 36

What is entrapment?

Answer 36

Available as a defense where defendant is UNPREDISPOSED to commit the crime prior to contact by the government.

Question 37

When does a duty arise that imposes criminal liability?

Answer 37

1) by statute; 2) by contract; 3) by creation of victim's peril 4) by relationship (parent/child, husband/wife).

Question 38

What are the 4 forms of mens tea?

Answer 38

1) Intent to kill - specific intent; 2) Intent to cause serious bodily harm; 3) depraved heart; and 4) felony murder (BARRK).

Question 39

Define voluntary manslaughter

Answer 39

Intentional killing; 1) adequate provocation - objective; 2) mistaken justification.

Question 40

Define involuntary manslaughter.

Answer 40

Unintentional killing; 1) gross or criminal negligence - subjective 2) misdemeanor - manslaughter.

Question 41

What type of defense is voluntary intoxication?

Answer 41

Can reduce 1st degree murder to 2nd degree, but does NOT mitigate murder to voluntary manslaughter.

Question 42

What is solicitation?

Answer 42

1) Defenant entices, encourages, order or requests another to commit a crime. The crime is COMPLETE at this point. 2) It merges into the target offense. 3) Applies to felonies and breach of the peach misdemeanors at common law. 4) NO defense at common law. REMEMBER: Solicitation merges into conspiracy. So if you solicit, conspire and complete, just conspiracy and crime.

Question 43

What are the elements of attempt?

Answer 43

1) Intent to commit a crime; and 2) a "substantial" step in furtherance that goes beyond mere preparation. * merges into complete offense.

Question 44

What are the defenses to attempt?

Answer 44

Legal impossibility is. Factual impossibility IS NOT! Factual impossibility is no defense to attempt where the defendant intends a criminal act but cannot accomplish it because of facts unknown to him at the time of the act.

Question 45

What are the elements of conspiracy?

Answer 45

1) agreement between 2 or more persons - plurality; and 2) Intent to achieve a criminal objective. * Conspiracy does NOT merge.

Question 46

What are the defenses to attempt?

Answer 46

1) Factual Impossibility - NO DEFENSE. What defendant intends is a crime, but because of facts unknown to him at the time, he is unable to accomplish his goal. Legal Impossibility - IS a defense. Even if defendant did all those things he intended to do, he still could not violate the statute.

Question 47

What is the unilateral theory of conspiracy?

Answer 47

Agreement between "2 or more" persons is not required. Only agreement by a single actor agreeing with another is needed.

Question 48

What is accomplice liability?

Answer 48

An accomplice: 1) gives aid or encouragement 2) with intent to achieve a criminal objective. Scope: all crimes that are "reasonably foreseeable."

Question 49

Define battery.

Answer 49

Harmful or offensive bodily contact with another. * This is a general intent crime.

Question 50

Define assault.

Answer 50

1) attempted battery; and 2) the doing of an act which that places another person in reasonable apprehension of receiving a battery. 1) Attempted battery - specific intent. 2) Intent to frighten - general intent.

Question 51

What is accessory after the fact?

Answer 51

Knows of a completed crime; AND | Gives aid to hinder apprehension or conviction.

Question 52

Define robbery.

Answer 52

Larceny + 1) from the person or his presence. 2) by force or threats (intimidation).

Question 53

Define embezzlement.

Answer 53

Fraudulent conversion of the personal property of another in lawful possession.

Question 54

Define burglary.

Answer 54

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

Question 55

Define false pretenses.

Answer 55

False representation of a past or present material fact which causes the victim to PASS TITLE to the wrongdoer.

Question 56

What are the two basis for appeal?

Answer 56

1) Right to jury trial - arises where imprisonment for more than 6 months is possible. 2) Right to Counsel - arises for felony trials and misdemeanors where imprisonment is actually imposed, or, in the case of an indigent, where a suspended jail sentence is imposed.

Question 57

What is standing?

Answer 57

Defendant must have a possessory interest in the premises searched or in the items siezed.

Question 58

What is an inventory search?

Answer 58

A routine search to protect the arrestee's personal items and to safeguard the police from any claims of theft.

Question 59

What is a reasonable expectation of privacy?

Answer 59

1) Where there is a REP, then police intrusion constitutes a search. 2) If there is no REP, then police intrusion is not a search.

Question 60

What is the "open fields" doctrine?

Answer 60

1) applies to the area beyond the "curtilage" 2) No REP 3) No 4th Amendment protection 4) A view of "open fields" is NOT a search.

Question 61

What is a "consent" search?

Answer 61

Consent extends to all areas where a person with an APPARENT EQUAL RIGHT TO USE OR OCCUPY the property would have JOIN ACCESS OR CONTROL.

Question 62

When is a dog sniff legal?

Answer 62

1) a dog sniff of the exterior of a lawfully stopped vehicle does NOT constitute a search. 2) A positive canine alert provides probably cause to search.

Question 63

What are the warrant exceptions?

Answer 63

1) stop and frisk 2) search incident to lawful arrest 3) plain view 4) automobile 5) consent 6) hot pursuit 7) exigent circumstances

Question 64

What is the "totality of the circumstances" test?

Answer 64

1) reliability of the informant; and 2) credibility of the information. (Probable cause based on an informant's tip)

Question 65

REMEMBER: both pre-arrest (Jenkins v. Anderson) and post-arrest silence may be used for impeachment where Miranda warnings have NOT been given.

Answer 65

Post-Miranda silence may NOT be used for impeachment (Doyle v. Ohio).

Question 66

What is the "totality of the circumstances" test under Miranda waiver?

Answer 66

1) competency of the defendant; and | 2) nature of the police conduct.

Question 67

What are the 4 bases to attack admissibility of a statement/confession?

Answer 67

1) Voluntariness approach; 2) Miranda approach 3) Right to Counsel approach 4) "Fruits of the Poisonous Tree" doctrine.

Question 68

What is the Separate Sovereignties Doctrine?

Answer 68

1) Retrial by separate sovereignties does not violate double jeopardy (i.e. does not constitute the same offense) ** Caveat: the city and the state in which it sits are NOT separate sovereignties ****

Question 69

What is Messiah

Answer 69

1) applies to post-indictment interrogation 2) a defendant has the right to counsel when the police seek to interrogate him. 3) interrogation by a police informant 4) interrogation results when the police (or its informant) seek to elicit incriminating statements from the defendant.

Question 70

What is the Arizona v. Hicks "plain view" exception/doctrine?

Answer 70

the "plain view" doctrine may not be used to extend a general exploratory search from one object to another. Full probably cause is needed to pick up an item to ascertain its serial number. REMEMBER: when the purpose of the warrant have been carried out, the authority is to search is at an end.

Question 71

What is the rule regarding representation of multiple clients by one attorney?

Answer 71

Multiple representation in the sens taht the same counsel actively represented two defendants charged with the same crime does NOT violate the 6th Amendment UNLESS it gives rise to a conflict of interest.

Question 72

Do you have a right to proceed pro se?

Answer 72

A defedant who acts knowingly and intelligently in waiving his right to counsel has a right to proceed pro se, since he must be free to decide if counsel will be to his advantage in the case. ** The defendant must be found INCOMPETENT - not just INDIGENT ***

Question 73

REMEMBER: Most crimes require all 5 elements.

Answer 73

Don't let yourself get confused with forseeability in torts.

Question 74

HINT: a conspirator does not have automatic standing to challenge the siezure of illegally obtained evidence from a co-conspirator.

Answer 74

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Question 75

NOTE: with respect to the automobile exception, police must have PROBABLE CAUSE to suspect or reasonably beleive that the vehicle contains EVIDENCE OF A CRIME!!!! (or CONTRABAND)

Answer 75

This cannot just be that the occupants seem shifty.

Question 76

What are the Specific Intent Crimes?

Answer 76

BAM ACTS ``` Burglary Assault Murder Attempt Conspiracy Theft Solicitation ```

Question 77

What are the General Intent Crimes

Answer 77

BRIM Battery Rape Involuntary Manslaughter Murder (other than intent to kill)

Question 78

What is the redline limitation on felony murder?

Answer 78

A felon is not liable for the death, which the felon did not intend, of a co-felon participating in criminal activity. ** Redline is the prevailing view in a majority of jurisdictions **

Question 79

Note on Suicide:

Answer 79

Suicide is not murder under the statute since the defendant would be required to have knowingly or willfully caused the death of ANOTHER HUMAN BEING, not himself. By attempting suicide, the defendant did not knowingly or willfully cause the death of the victim.

Question 80

Define Larceny by Trick:

Answer 80

You obtain possession (NOT title) by taking. | i.e. having an attendant pump gasoline and driving off