Black Letter Law Flashcards

1
Q

To reduce a charge of murder to voluntary manslaughter, the time for the defendant to “cool off” has ____ element(s), in that the reduction would be available ____.

A

both subjective and objective; if the defendant’s sudden and intense passions did not actually cool and the passions of a reasonable person would not have cooled between the time of the provocation and the time of the killing.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Common law arson is the ____.

A

malicious burning of the dwelling of another

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Which of the following situations is not sufficient to treat common law battery as aggravated battery?

A

When the defendant intends to seriously injured the victim.

The intent to cause a serious injury is usually not, by itself, a basis to elevate a battery into an aggravated battery. However, if serious bodily injury is actually caused, most statues would classify the crime as an aggravated battery. Additionally, most statues elevate the battery to an aggravated battery when a deadly weapon is used.

  • Also - Most statues classify a battery committed against certain classes of individuals (children, women, and police officers) as aggravated batteries.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

The Double Jeopardy Clause prohibits imposition of cumulative punishments for two or more offenses that constitute the same crime under the Blockburger test unless:

A

They are intended to carry separate punishments and are imposed at the same trial.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

A state ____ make the death penalty a mandatory sentence ____.

A

may never; for any crime

The mandatory imposition of the death penalty is unconstitutional under the Eighth Amendment prohibition against cruel and unusual punishment. A statutory scheme for imposing the death penalty must allow the fact finder to consider all mitigating circumstances (any aspect of the defendant’s character or any circumstances of him crime as a factor in mitigation). The death penalty cannot be imposed without consideration of mitigating circumstances, even for premeditated first degree murder.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

When the defendant obtains title to the property of another, by an intentional (or knowing) false statement, with the intent to defraud, he commits:

A

false pretenses

Under the common law, the false statement had to be a false statement of past or existing fact.

Under the MPC and the modern prevailing view, the false statement need not be of a past or existing fact. (A future false promise to perform suffices.)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Substandard medical care is an “intervening act” that relieves a defendant from homicide liability if the medical care is ____ or ____.

A

grossly negligent; intentional mistreatment

As a general rule, an intervening act will shield the defendant from liability if the act is a mere coincidence or outside the foreseeable sphere of risk created by the defendant’s acts. Acts by a third party, such as the provision of substandard medical care, depend on how poor the medical care was.

Negligent medical care is deemed to be within the foreseeable sphere of risk created by the defendant.

Most jurisdictions consider the victim’s refusal of medical care for religious reasons to be within the foreseeable sphere of risk created by the defendant.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

In which of the following situations would the defendant have a valid defense to attempt in most jurisdictions?

A

The acts he was attempting to commit would not constitute a crime under any set of circumstances.

This is legal impossibility, which is a valid defense to attempt in most jurisdictions.

Under the MPC, withdrawal will be a defense if it is fully voluntary and not made because of the difficulty of completing the crime or because of an increased risk of apprehension, and it is a complete abandonment of the plan made under circumstances manifesting a renunciation of criminal purpose, not just a decision to postpone committing it or to find another victim.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Which of the following could be the subject of common law forgery?

A

A writing with apparent legal significance.

Forgery consists of the making or altering of a false writing with the intent to defraud.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

The defense of entrapment consists of two elements:

A

(i) the criminal design must have originated with law enforcement officers; and (ii) the defendant must not have been predisposed to commit the crime prior to the initial contact by the government.

An entrapment defense will fail if the government merely provides the defendant with the opportunity to commit the crime.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

The constitutional prohibition against double jeopardy prohibits ____.

A

a person from being tried for the same conduct by both a state and one of its municipalities

A person MAY be tried for the same conduct by both a state and the federal government.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Which of the following police actions most likely constitutes a search for Fourth Amendment purposes?

A

use of thermal imager to photograph the inside of defendant’s home

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Fraud as to ____, ____, and ___ are insufficient to establish the “without consent” requirement for rape.

A

whether the defendant is the victim’s husband; the defendant’s intent to marry the victim; the defendant’s profession or identity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

If a suspect invokes his right to remain silent, the police may:

A

reinitiate questioning only if they scrupulously honor the request to remain silent

The Supreme Court has allowed the police to reinitiate questioning where: (i) the police ceased questioning immediately upon the detainee’s request and did not resume questioning for several hours; (ii) the detainee was given a fresh set of Miranda warnings; and (iii) the questioning was limited to a crime that was not the subject of the earlier questioning.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

An assault may be committed by:

A

attempting to commit a battery

An assault is either an attempt to commit an offense touching (battery), or the intentional creation, other than by mere words, of a reasonable apprehension the mind of the victim of imminent bodily harm.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

The elements of conspiracy at common law include:

A

an agreement between two or more persons, the intent to enter into an agreement, and the intent to achieve the objective of the agreement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Border searches for illegal aliens:

A

(a) Border officials may stop an automobile at a fixed checkpoint at the U.S. border for questioning of the occupants even without a reasonable suspicion that the automobile contains illegal aliens.

(b) A roving patrol inside the U.S. border may stop any automobile for questioning of the occupants if the officer reasonably suspects that the automobile may contain illegal aliens.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Liability for felony murder ends when:

A

the felon reaches a place of temporary safety

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Most states elevate the crime of kidnapping to aggravated kidnapping when ____.

A

the victim is a child (or when the victim is held for ransom or the kidnapping is committed in furtherance of another crime)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

For reducing murder to manslaughter, the provocation must ____.

A

raise a sudden and intense passion in the mind of an ordinary person and the defendant must have in fact been provided

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

The provocation requirement for voluntary manslaughter has both ____. The provocation must be such that ____.

A

objective and subjective elements; an ordinary person would have been provoked, and the defendant must have been so provoked

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

In order to satisfy the “burning” requirement for common law arson:

A

charring to the structure is sufficient; scorching is insufficient

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

For mistake of fact, the mistake must ____.

A

negate the defendant’s required state of mind

If a defendant does not have the required state of mind (mens rea) he cannot be convicted of the crime.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

If jeopardy has attached, a defendant may not be retried if ____.

A

the defendant’s conviction was reversed for insufficient evidence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

For Miranda purposes, a person may be in custody in ____.

A

his own home

Whether a person is in custody depends on whether his freedom of action is denied in a significant way. This is an objective test - whether a reasonable person under the circumstances would think that he is in custody.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

When is the duress defense available at common law?

A

When the defendant commits a crime other than homicide in order to prevent death or imminent bodily harm to himself or another.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

The crime of solicitation is complete when ____.

A

the solicitation is made

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

The following defenses are available to both general and specific intent crimes:

A

involuntary intoxication, insanity and mistake of fact

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

____ is available as a defense to a specific intent crime only.

A

voluntary intoxication

The defense may be used to show that a defendant was unable to form the requisite intent due to intoxication.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

An ____ is a defense to a specific intent crime only.

A

unreasonable mistake of fact

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

In most jurisdictions, deadly force may be used in the following situations:

A

self-defense, defense of others, and crime prevention

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Which of the following can be the subject of larceny?

A

natural gas or electricity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

If the agreements have ____ and it is established that ____, the series of crimes committed will be considered separate conspiracies.

A

one common member; any subagreements are reasonably independent of each other

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

The minimum number of jurors that can fulfill the Sixth Amendment right to a trial by jury is:

A

six

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Under what circumstances is a defendant accused of an interracial crime entitled to question prospective jurors on potential racial bias?

A

in capital cases only

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

An immigration officer may search a vehicle for illegal aliens without probable cause for the search:

A

at the border or its functional equivalent only

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

A ____ must be sworn in before invoking the privilege, but a ____ may refuse to take the stand.

(invocation of the privilege against self-incrimination)

A

witness; criminal defendant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

____ may not execute a search warrant.

A

private citizens (only police may execute a warrant)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

When executing a warrant, the police do not ____.

A

need to always knock and announce their presence before entering a home

39
Q

When executing a warrant, the police may seize any contraband or fruits or instrumentalities of a crime that they discover, regardless of whether they are ____.

A

specified in the warrant

40
Q

In ____, jeopardy attaches when the first witness is sworn in.

A

a bench trial

41
Q

Jeopardy attaches in a jury trial at the ____.

A

empaneling and swearing of the jury

42
Q

A “____” relationship is comprised of a series of agreements, all of which are regarded as part of a single large scheme in which all of the parties to the subagreemdtns are interested. This situation is regarded as one large conspiracy involving all of the participants.

A

“chain”

43
Q

A “____” relationship involves agreements that have one common member, but the subagreements are reasonably independent of each other. The series of crimes committed in these types of relationships are all considered separate conspiracies.

A

“hub and spoke”

“hub” - common member
“spoke” - subagreements

44
Q

Which of the following is true regarding “withdrawal” in order to avoid criminal liability as an accomplice?

A

One must repudiate any encouragement that he gave for commission of the crime, and he must at least attempt to neutralize any material assistance that he provided.

45
Q

What doctrine prevents a defendant from being tried for a crime if a prior prosecution resulted in a factual determination inconsistent with one required for conviction?

A

collateral estoppel

46
Q

All warrantless arrests made inside an arrestee’s home are:

A

presumed invalid; but that presumption may be rebutted

For example, an arrest made in the arrestee’s home is valid if the government can show exigent circumstances that justify the warrantless in-home arrest (they entered the home while it was on fire to look for people in need of help, they were in hot pursuit of the defendant when he entered the home, etc.)

47
Q

With regard to the use of immunity to compel testimony, ____.

A

a state cannot use immunity to compel testimony unless the immunity also applies in a federal prosecution

Therefore, federal prosecutors may not use evidence obtained as a result of a state grant of immunity, and vice versa.

48
Q

Testimony obtained by a promise of immunity ____ be used in a prosecution for perjury committed during the immunized testimony.

A

may

49
Q

A grant of use and derivative use immunity does ____ guarantee immunity from prosecution for any crimes.

A

not

50
Q

Transactional immunity guarantees immunity from ____.

A

prosecution for any crimes related to the transaction about which the witness testifies.

51
Q

Transactional immunity ____ allow the witness to be prosecuted from evidence derived from an independent source.

A

does not

52
Q

Use and derivative use immunity allows the witness to be prosecuted if ____.

A

the prosecutor can show evidence was derived from a source independent of the immunized testimony.

53
Q

If a defendant reasonably believes he must engage in criminal behavior to avoid some harm to society caused by natural forces that would exceed the harm caused by his conduct, the defense of ____ may be available.

A

necessity

54
Q

The following may assert the Fifth Amendment privilege against self-incrimination:

A

natural persons

55
Q

Common law malicious mischief is the malicious ____ another’s ____.

A

destruction of or damage to; property

56
Q

The ____ theory of felony murder requires that the ____ actually commit the killing for criminal liability for felony murder to attach.

A

agency; felon or one of his agents

57
Q

The burden of persuasion on the insanity issue may be place on the ____.

A

defendant

58
Q

Larceny consists of:

A

(i) a taking;
(ii) and carrying away (asportation);
(iii) of tangible personal property;
(iv) of another;
(v) by trespass;
(vi) with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property

59
Q

Moderal criminal codes and MPC often consolidate, under the single title of “theft,” the common law offenses of:

A

(a) larceny
(b) embezzlement
(c) false pretenses
(d) receipt of stolen goods

60
Q

Which of the following is an example of the type of evidence the Fifth Amendment privilege against self-incrimination protects?

A

The defendant is ordered to list his bank account numbers.

The Fifth Amendment privilege protects testimonial or communicative evidence. For a communication to be considered testimonial, it must explicitly relate a factual assertion or disclose information.

61
Q

The Fifth Amendment privilege does not protect ____.

A

real or physical evidence, such as blood samples, handwriting exemplars, or voice samples.

62
Q

What are the elements of embezzlement?

A

(i) the fraudulent
(ii) conversion
(iii) of property
(iv) of another
(v) by a person in lawful possession of that property

63
Q

For Fourth Amendment purposes, consent to search is proper if:

A

voluntary, intelligent, and given by one with actual or apparent authority to consent

64
Q

For a search to be reasonable, it must be ____ and ____ and based on ____.

A

pursuant to a warrant issued by a neutral; detached magistrate; probable cause to believe that seizable evidence or fruits of a crime will be found in the place to be searched

65
Q

Under modern statutes, what is the difference between a principal and an accomplice to a crime?

A

The principal actually commits the crime.

The accomplice aids, counsels, or encourages the principal to commit the crime.

66
Q

The Double Jeopardy Clause prohibits ____.

A

retrying a defendant for a more serious offense than at his first trial

67
Q

What are the two requirements for a criminal attempt?

A

(a) the specific intent to perform an act and obtain a result, that, if achieved, would constitute a crime

(b) an overt act in furtherance of the crime

68
Q

The overt act requirement means that the defendant must have ____.

A

committed an act beyond mere preparation for the crime

69
Q

The exclusionary rule is a ____.

A

judge made rule providing that evidence obtained in violation of the Fourth, Fifth, or Sixth Amendment generally may not be admitted into evidence

70
Q

Under the exclusionary rule, if a search warrant was defective ____.

A

evidence obtained from executing the warrant will not be suppressed if the police acted in good faith and reasonably relied on the warrant

71
Q

A conspirator may be liable for the crimes of all other conspirators if the crimes were committed in furtherance of the objectives of the conspiracy, and the crimes were ____.

A

foreseeable

72
Q

Bigamy was traditionally a ____ crime.

A

strict liability

73
Q

Strict liability offenses do not require ____ and are generally “regulatory” offenses, offenses that are part of a regulatory scheme.

A

awareness of all of the factors constituting the crime

74
Q

Malice crimes require that the defendant ____.

A

recklessly disregarded an obvious or high risk that the particular harmful result would occur

75
Q

A specific intent crime requires ____.

A

the doing of the criminal act with a specific intent or objective

76
Q

A general intent crime requires ____.

A

the performance of the act with awareness of all factors constituting the crime

77
Q

The elements of the crime of receipt of stolen property are:

A

(i) receiving possession and control

(ii) of “stolen” personal property

(iii) known to have been obtained in a manner constituting a criminal offense

(iv) by another person

(v) with the intent to permanently deprive the owner of his interest in the property

78
Q

____ cannot be the subject of common law forgery.

A

writings that derive their value from the mere fact of their existence (historical or artistic value)

ex: writing the name “XYZ”

79
Q

The constitutional right to a jury trial in criminal cases applies ____ offenses.

A

only to serious

80
Q

____ are general intent crimes.

A

(a) battery
(b) false imprisonment
(c) kidnapping

81
Q

No announcement needs to made if the police reasonably suspect that knocking and announcing would be ____.

A

dangerous or futile or inhibit the investigation

82
Q

The Fourth Amendment prohibits the government from ____.

A

conducting unreasonable searches and seizures

83
Q

A statute or ordinance that retroactively changes the criminal law in a way that deprives an individual of a substantial right he previously had, for a punitive purpose, is ____.

A

an ex post facto law (constitutionally prohibited)

84
Q

A ____ is a legislative act that punishes an individual, who is identified either by name or in terms of past conduct, without a judicial trial.

A

bill of attainder (constitutionally prohibited)

85
Q

Most jurisdictions define “stolen” property broadly to include ____.

A

property obtained by commission of any of the property offenses

86
Q

If a defendant successfully appeals a conviction, and is retried by the same judge and convicted, may the judge impose a sentence harsher than the original sentence?

A

No, unless based on conduct on the part of the defendant occurring after the original sentencing proceedings.

87
Q

What are the exceptions to the exclusionary rule?

A

(i) inevitable discovery
(ii) intervening act of free will by the defendant
(iii) independent source

88
Q

For an individual to be convicted as an accessory after the fact under modern statutes the crime committed by the principle must be a ____, and it must have been ____.

A

felony; completed at the time the accessory renders aid

89
Q

Involuntary manslaughter requires a death caused by ____.

A

criminal negligence or by an unlawful act

90
Q

Solicitation merges into the ____.

A

completed crime

91
Q

An attempt will be considered a ____ for purposes of merger.

A

completed crime

92
Q

Kidnapping is the movement of a person or concealment of a ____.

A

person in a secret place

93
Q

Under the ____, felony murder liability does not attach when the person killed is a co-felon.

A

redline case

94
Q

The mistake of fact defense is available for:

A

both general and specific intent crimes, but the mistake must be reasonable to serve as a defense for a general intent crime