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Crim Flashcards

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1
Q

Elements of Murder

A
  1. actus reus – voluntary killing
  2. mens rea – malice aforethought
  3. causation – actual and proximate cause
  4. concurrence – coexistence of killing and malice aforethought
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2
Q

Malice aforethought can be proved by establishing one of four mental states:

A
  1. intent to kill
  2. intent to cause great bodily injury
  3. reckless indifference to an unjustifiably high risk to human life (depraved heart)
  4. intent to commit a felony (felony murder rule)
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3
Q

Two methods D can use to mitigate murder to voluntary manslaughter

A
  1. adequate provocation

2. imperfect self-defense (mistaken justification)

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4
Q

Attempt elements

A
  1. specific intent to commit crime

2. overt act beyond mere preparation

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5
Q

Larceny elements

A
  1. actus reus – trespassory taking and carrying away of personal property
  2. mens rea – intent to permanently deprive
  3. causation – actual and proximate cause
  4. concurrence – coexistence of taking and intent to permanently deprive
    Nonlawful possession – takes $ out of cash register at end of shift
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6
Q

Embezzlement elements

A
  1. actus reus – fraudulent conversion of personal property
  2. mens rea – intent to defraud
  3. causation – actual and proximate cause
  4. concurrence – coexistence of conversion and intent to defraud
    Lawful possession at the time of misappropriation (high level agents, fiduciaries, etc.) – takes $ from customer and puts it directly into pocket
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7
Q

False pretenses elements

A
  1. actus reus – obtaining title to property by a knowing false representation of past or present material fact
  2. mens rea – intent to defraud
  3. causation – actual and proximate cause
  4. concurrence – coexistence of obtaining title and intent to defraud
    Thief obtains title
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8
Q

Larceny by trick elements

A
  1. actus reus – obtaining custody to property by a knowing false representation of past or present material fact
  2. mens rea – intent to defraud
  3. causation – actual and proximate cause
  4. concurrence – coexistence of obtaining custody and intent to defraud
    Thief obtains possession
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9
Q

Exceptions to the warrant requirement

A
  1. stop and frisk
  2. search incident to lawful arrest
  3. plain view
  4. automobile exception
  5. consent
  6. hot pursuit
  7. exigent circumstances
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10
Q

Stop and Frisk Doctrine

A

If reasonable and articulable suspicion, police may
-briefly stop and question suspect AND
-frisk suspect’s outer clothing for weapons only
Police may reach into suspect’s clothing and seize an item if they reasonably believe the object is contraband based on its plain feel

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11
Q

5th amendment triggered by

A

a custodial interrogation

  • custody: would a reasonable person feel free to terminate? How similar is the situation to traditional arrest?
  • interrogation: behavior the police should know is reasonably likely to elicit an incriminating response
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12
Q

Miranda rights are:

A

silence, right to counsel

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13
Q

6th Amendment

A

Govt may not elicit incriminating statements from D without aid of counsel once formal charges have been filed
This is offense specific – only applies to the current charge- can be questioned about other offenses

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14
Q

5A or 6A is offense specific?

A

6A

only applies to the current charge- can be questioned about other offenses

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15
Q

4A Standing

A

D must have a reasonable expectation of privacy in the premises searched or the items seized
-must be violated to establish standing

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16
Q

State has jx over a crime if

A
  • act committed in state

- result occurred in state

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17
Q

Solicitation and attempt ____ merge into completed crime

A

DOES

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18
Q

Conspiracy ___ merge into completed crime

A

DOES NOT

can be convicted of both conspiracy to commit X and X

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19
Q

Under MPC, D may not be convicted of ___ inchoate crime

A

More than one

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20
Q

Felonies generally punishable by

A

Death or imprisonment for more than one year

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21
Q

Elements of a crime

A 
Almost always requires proof of
-physical act (actus reus)
-mental state (mens rea)
-concurrence of the act and mental state
(may also require proof of result and causation)
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22
Q

Crime element: physical act

A

D must have performed voluntary physical act or failed to act

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23
Q

Legal duty to act can arise by

A
  • statute
  • contract (ex lifeguard or nurse on duty)
  • by relationship between parties (ex parent/child)
  • voluntary assumption of care
  • D created the peril for the victim
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24
Q

Defenses to specific intent crimes only

A
  • voluntary intoxication

- unreasonable mistake of fact

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25
Q

Specific intent crimes

A 
“Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts”
Solicitation
Conspiracy
Attempt
First degree premeditated murder
Assault
Larceny
Embezzlement
False pretenses
Robbery
Burglary
Forgery
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26
Q

Malice crimes at common law

A
  • murder

- arson

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27
Q

Intent necessary for malice crimes

A

Reckless disregard of obvious or high risk that particular harmful result will occur

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28
Q

General intent crimes do not get ______

A

The defenses to specific intent crimes only (voluntary intoxication, unreasonable mistake of fact)

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29
Q

Strict liability offenses

A
  • no mens rea requirement

- D guilty from committing act

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30
Q

Consent of the victim or mistake of fact or intent are ___ the correct answer choice for strict liability question

A

NEVER

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31
Q

MPC mental states

A
  • purposely
  • knowingly
  • recklessly
  • negligence
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32
Q

Purposely, knowingly, or recklessly—subjective or objective standard?

A

Subjective

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33
Q

A person acts purposely when

A

their conscious object is to engage in certain conduct or cause a certain result

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34
Q

A person acts knowingly with respect to the nature of their conduct when

A

They are aware conduct is of a particular nature or certain circumstances exist

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35
Q

A person acts recklessly when

A

They consciously disregard a substantial and unjustifiable risk, gross deviation from the standard of care

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36
Q

A person acts negligently when

A

They fail to be aware of a substantial and unjustifiable risk
(objective standard)

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37
Q

Which of the MPC mental states uses an objective standard?

A

Negligence

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38
Q

Transferred intent

A
  • D intended to harm different victim or object

- applies to homicide, battery, and arson

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39
Q

D tries to shoot A but misses and kills B. Can be charged with

A

Murder (B) and attempted murder (A)

transferred intent

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40
Q

Common law parties to a crime

A
  • principals in the first degree (persons who engage in the act that constitutes the crime)
  • principals in the second degree (persons who aid, advise, or encourage AND are present)
  • accessories before the fact (persons who assisted or encouraged but were not present)
  • accessories after the fact (persons who, with knowledge other committed felony, assisted them escape arrest or punishment)
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41
Q

Modern statutes and parties to a crime:

A
  • principal: engages in the crime
  • accomplice: aids, advises, encourages
  • accessory after the fact: assists felon in escaping, etc.
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42
Q

Dual intent required for accomplices

A

Accomplice must have
1. intent to assist the principal in the commission of the crime
2. intent that the principal commit the substantive offense
IF the substantive offense requires negligence or recklessness, the accomplice must
1. intend to facilitate the commission of the crime
2. act with recklessness or negligence (whichever applies to the substantive offense)

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43
Q

Most courts hold that mere knowledge that a crime will result IS or IS NOT enough for accomplice liability?

A

IS NOT

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44
Q

Scope of liability for accomplices

A

An accomplice is responsible for the crimes they did or counseled and for any other crimes committed in the course of committing the crime contemplated to the same extent as the principal, as long as the other crimes were probable or foreseeable

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45
Q

Withdrawal from accomplice liability

A
  • must repudiate encouragement
  • must attempt to neutralize any assistance
  • notifying police or taking other action to prevent crime also sufficient
  • mere withdrawal is not sufficient
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46
Q

Three inchoate offenses

A
  • conspiracy
  • solicitation
  • attempt
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47
Q

Elements of conspiracy

A
  • agreement between 2 or more persons
  • intent to enter into agreement (need not be express)
  • intent to achieve UNLAWFUL objective
  • overt act required by majority of states
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48
Q

Modern/unilateral approach to conspiracy parties

A

Only one party must have criminal intent

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49
Q

Traditional/bilateral approach to conspiracy parties

A

At least two parties must have criminal intent

Two “guilty minds”

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50
Q

Overt act for conspiracy

A
  • not required at common law

- now, an overt act is required by most states (any little act, even mere preparation)

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51
Q

A conspiracy usually terminates upon

A

Completion of the wrongful objective

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52
Q

A conspirator may be held liable for crimes committed by other conspirators if the crimes

A
  1. were committed in furtherance of the objectives of the conspiracy AND
  2. were foreseeable
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53
Q

Factual impossibility ___ a defense to conspiracy

A

IS NOT

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54
Q

Withdrawal from conspiracy ____ a defense to conspiracy

A 
IS NOT
(may be a defense to crimes committed in furtherance of conspiracy)
(conspirator must perform affirmative act that notifies co-conspirators of withdrawal in time for them to abandon plans)
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55
Q

Is there merger for conspiracy?

A

No, D can be convicted of conspiracy to commit X and X

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56
Q

Solicitation definition

A

Asking another person to commit a crime, with intent that the person commit it

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57
Q

Attempt definition

A

Overt act done with intent to commit a crime that falls short of completing it

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58
Q

Attempt always requires

A

Specific intent

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59
Q

Overt act for attempt

A
  • act beyond mere preparation
  • traditional/proximity test: dangerously close to completion
  • modern/majority test: substantial step in course of conduct
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60
Q

Abandonment of attempt

A
  • not a defense at common law

- defense under MPC if fully voluntary and complete

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61
Q

Legal impossibility ___ a defense to attempt

A

IS

rare

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62
Q

Factual impossibility ___ a defense to attempt

A

IS NOT

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63
Q

Is factual impossibility a defense to any inchoate crime?

A

No

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64
Q

Prosecution for attempt

A

D charged only with completed crime may be found guilty for completed crime OR attempt
D charged only with attempt may NOT be convicted of completed crime

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65
Q

Common law murder definition

A

Unlawful killing of a human being with malice aforethought

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66
Q

Malice aforethought requires one of the following

A
  • intent to kill
  • intent to inflict great bodily injury
  • reckless indifference to an unjustifiably high risk to human life (depraved heart)
  • intent to commit a felony
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67
Q

Intentional use of a deadly weapon authorizes a permissive inference of

A

Intent to kill

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68
Q

Deliberate and premeditated first degree murder

A

-D made decision to kill in cool and dispassionate manner and actually reflected on idea of killing

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69
Q

First degree felony murder

A

A killing committed during the commission of an enumerated felony

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70
Q

Majority rule: killing a cop when you know they are a cop and acting in the line of duty is

A

First degree murder

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71
Q

Second degree murder

A
  • usually reckless indifference to an unjustifiably high risk to human life (depraved heart)
  • anything that is not first degree
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72
Q

Felony murder rule

A

Any death, even accidental, caused during the commission of, or in an attempt to commit, a felony is murder
Common law: BARRK felonies: burglary, arson, rape, robbery, kidnapping
States have added more

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73
Q

Limitation on felony murder liability

A
  • D must have committed or attempted to commit the underlying felony
  • felony must be distinct from killing itself
  • death must have been foreseeable
  • death must have been caused before immediate flight from felony ended
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74
Q

Proximate cause theory in felony murder rule

A

Felon liable for deaths of innocent victims caused by someone other than co-felon
Minority view

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75
Q

Agency theory in felony murder rule

A

Felon liable only if killing committed by felon or agent

Majority view

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76
Q

Voluntary manslaughter

A

a killing that would be murder but for the existence of adequate provocation

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77
Q

adequate provocation for manslaughter

A
  • provocation would arouse sudden and intent passion in the mind of an ordinary person
  • D was in fact provoked
  • not sufficient time between provocation and killing for passions of a reasonable person to cool
  • D in fact did not cool off
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78
Q

Imperfect self-defense

A

Murder maybe reduced to manslaughter even though

  1. D was at fault in starting the altercation
  2. D unreasonably but honestly believed in the necessity of responding with deadly force
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79
Q

Involuntary manslaughter

A
  • killing committed with criminal negligence (or recklessness under MPC) (ex driving a car) OR
  • killing committed during commission of unlawful act (misdemeanor or unenumerated felony)
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80
Q

Abandoned and malignant heart murder at common law involves a high risk of death while involuntary manslaughter based on recklessness requires only a _____ risk.

A

Substantial

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81
Q

Causation for homicide

A

D’s conduct must be both the cause-in-fact (but for) and the proximate cause of the victim’s death

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82
Q

Rules of causation

A

-act that hastens an inevitable result is still the legal cause of that result
-simultaneous acts of two or more persons may be independently sufficient causes
of a single result
-victim’s preexisting weakness or fragility, even if unforeseeable, does not break the chain of causation

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83
Q

Year and a day rule

A

Death of victim must occur within a year and a day

Most states have abolished

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84
Q

Intervening acts

A

Generally, an intervening act shields the defendant from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the defendant
-a third party’s negligent medical care and the victim’s refusal of medical treatment for religious reasons are both foreseeable risks, so D would be liable

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85
Q

Battery

A

Unlaw application of force to the person of another resulting in either bodily injury or offensive touching

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86
Q

Battery is a ___intent crime

A

General

NO specific intent defenses voluntary intoxication and unreasonable mistake of fact

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87
Q

Aggravated battery

A
  • battery with a deadly weapon
  • battery resulting in serious bodily harm
  • battery of a child, woman, or police officer
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88
Q

Assault

A

Either
1. attempt to commit 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
If there has been actual touching of the victim, can only be battery, not assault

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89
Q

Aggravated assault

A
  • use of deadly or dangerous weapon

- intent to rape, maim, murder

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90
Q

False imprisonment

A

Unlawful confinement of a person without valid consent

MPC requires that the confinement must “interfere substantially” with the victim’s liberty

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91
Q

Kidnapping usually involves

A
  • some movement of the victim OR

- concealment of the victim in a secret place

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92
Q

Aggravated kidnapping

A
  • ransom
  • for the purpose of committing other crimes
  • for offensive purposes
  • child stealing
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93
Q

Rape

A

The slightest penetration is sufficient

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94
Q

Statutory rape definition

A 
Carnal knowledge of a person under the age of consent
Strict liability (mistake as to age not a defense)
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95
Q

Larceny definition

A

Taking and carrying away of tangible personal property of another by trespass with intent to permanently deprive

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96
Q

Asportation

A

The slightest movement of the property is enough for larceny

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97
Q

Larceny requires that at the time of the taking, the D

A

intended to permanently deprive a person of their property

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98
Q

Insufficient intent for larceny

A
  • belief property is D’s
  • intent to borrow property
  • intent to keep property as repayment of debt
  • some right to the property
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99
Q

There ___ be larceny were D intends to pay for the goods if the goods were not for sale or intends to collect a reward from the owner (if there is no intent to return the goods absent a reward)

A

MAY

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100
Q

Larceny can be committed with lost or mislaid property but not with

A

Abandoned property

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101
Q

Continuing trespass

A

D wrongly takes property without intent to permanently deprive and later decides to keep it = larceny
NOT larceny if the original taking was not wrongful

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102
Q

Embezzlement

A

Fraudulent conversion of personal property of another by person in lawful possession of that property
Must intend to defraud

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103
Q

If D intends to restore the exact property taken, it ___ embezzlement

A

IS NOT

Similar or substantially identical, not exact property = embezzlement (even if its money)

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104
Q

Embezzlement ____ committed if the conversion is pursuant to a claim of right to the property

A

IS NOT

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105
Q

Embezzlement reminders

A
  • often a trustee
  • only possession is required, no need to carry away
  • embezzler does not have to get the benefit
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106
Q

False pretenses

A

Obtaining title to personal property of another by intentional false statement of past or existing fact with intent to defraud
Victim must be deceived by or act in reliance on misrepresentation

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107
Q

Larceny by trick versus false pretenses

A

Larceny by trick: victim gives up custody or possession of property
False pretenses: victim gives up title to property

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108
Q

Robbery

A

Taking of personal property of another from the other’s person or presence by force or threats of imminent harm with intent to permanently deprive

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109
Q

Robbery versus larceny

A

Robbery requires force or threats, larceny does not
Mugging = robbery
Pickpockets = larceny

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110
Q

Simulated deadly weapon ____ armed robbery

A

IS

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111
Q

Extorsion

A

(modern statutes)

Obtaining property by means of threats to do harm or expose information

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112
Q

Extorsion versus robbery

A

Extorsion threats may relate to future harm and the taking does not have to be in the presence of the victim

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113
Q

Receipt of stolen property

A

Receiving possession and control of stolen personal property KNOWN to have been obtained an a criminal manner by another person with intent to permanently deprive the owner

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114
Q

Forgery

A

Making or altering a writing with apparent legal significance so that it is false with intent to defraud

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115
Q

Burglary (common law)

A

Breaking and entering of dwelling of another at nighttime with intent to commit a felony in the structure

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116
Q

Breaking for burglary can be

A

Actual (NOT coming in through a wide open door on the outside, but it is if they open an interior door)
Constructive (breaking by fraud or threat)

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117
Q

Arson

A

Malicious burning of the dwelling of another

many statutes extend beyond dwellings

118
Q

Intent requirements for arson

A

As for the malice requirement, no specific intent is required. Acting with a reckless disregard of an obvious risk that the structure would burn will suffice for arson culpability

119
Q

Damage required for arson

A

Scorching (blackening by smoke or discoloration from heat) is not sufficient, charring is

120
Q

Houseburning

A

The common law misdemeanor of houseburning consisted of: (1) a malicious; (2) burning; (3) of one’s own dwelling; (4) if the structure is situated either in a city or town, or so near to other houses as to create a danger to them

121
Q

M’Naughten Rule (right/wrong test)

A

D entitled to acquittal if disease of the mind caused defect of reason such that D lacked ability to know wrongfulness of actions or understand nature and quality of actions

122
Q

Irresistible impulse test (self-control test)

A

D entitled to acquittal if, because of mental illness, they were unable to control actions or conform conduct to the law

123
Q

Durham test (New Hampshire test, products test)

A

D entitled to acquittal if crime was a product of mental illness

124
Q

ALI/MPC test for insanity

A

D entitled to acquittal if D had mental disease or defect, and, as a result, lacked substantial capacity to either appreciate the criminality of their conduct or conform conduct to the law

125
Q

Burdens of proof for insanity

A

Most states: once the issue is raised D must prove insanity by preponderance of the evidence
Other states/MPC: P has to prove D sabe beyond a reasonable doubt
Federal courts: D has to prove insanity by clear and convincing evidence

126
Q

Does not guilty plea waive later use of insanity defense?

A

No

127
Q

Voluntary intoxication

A

Results from intentional taking, without duress, of substance known to be intoxicating
Defense to specific intent crimes

128
Q

Voluntary intoxication as a defense to first degree murder results in

A

Reduction to second degree murder (if successful)

129
Q

Addicts and alcoholics who are intoxicated when they commit a crime are considered to be intoxicated

A

Voluntarily

130
Q

Involuntary intoxication

A

Results from taking substance without knowledge of its nature, under duress, or pursuant to medical advice while unaware of intoxicating effect
Can be a defense to all crimes

131
Q

Infancy as a defense (common law)

A

Under age 7: no criminal liability
Age 7-14: rebuttable presumption child unable to understand wrongfulness of acts
Age 14+: treated as adult

132
Q

Rule for nondeadly force

A
  • person without fault may use such force as person reasonably believes is necessary to protect themselves from imminent use of unlawful force
  • no duty to retreat
133
Q

Rule for deadly force

A

Person may use deadly force in self-defense of person

  • is without fault
  • is confronted with unlawful force
  • reasonably believes they are threatened with imminent death or great bodily harm
134
Q

Duty to retreat before using deadly force

A

No duty to retreat under majority view
Minority view requires retreat before using deadly force if victim can safely do so, unless
-attack occurs in victim’s home
-attack occurs while victim making a lawful arrest
-assailant in the process of robbing the victim

135
Q

Aggressor in a confrontation may use force in defense of themselves only if

A
  • they effectively withdraw and communicate their desire to do so
  • victim suddenly escalates the confrontation from minor fight into deadly and no chance to withdraw
136
Q

Defense of others

A

Right to defend others of D reasonably believes the person assisted has the legal right to use force in their own defense

137
Q

Defense of a dwelling

A

May use nondeadly force when they reasonably believe it is necessary to prevent or terminate another’s unlawful entry into or attack upon their dwelling
May use deadly force only to prevent a violent entry and when they reasonably believe use of force is necessary to prevent personal attack on themselves or another person in the dwelling OR to prevent entry to commit a felony in the dwelling

138
Q

When can deadly force be used in defense of property?

A

NEVER

Only reasonable, nondeadly force IF a request to desist or refrain would not suffice

139
Q

Regaining possession

A

A person may use force to regain possession of property that they reasonably believe was wrongfully taken only if they are in immediate pursuit of the taker

140
Q

Duress

A

Defense to crime, other than intentional homicide, that D reasonably believed another person would imminently inflict death or great bodily harm if D did not commit crime
Some states/MPC allow for threats to property, if value of property outweighs harm to society of crime

141
Q

Necessity

A

Defense that D reasonably believed commission of crime was necessary to avoid imminent and greater injury to society
Objective test

142
Q

Mistake or ignorance of fact

A
  • relevant to criminal liability if it shows D lacked state of mind required for crime
  • specific intent: mistake can be reasonable
  • any other state of mind: mistake must be reasonable
143
Q

Exceptions to mistake/ignorance of law is not a defense

A

(1) the statute proscribing their conduct was not published or made reasonably avail- able prior to the conduct; (2) there was reasonable reliance on a statute or judicial decision; or (3) in some jurisdictions, there was reasonable reliance on official interpretation or advice

144
Q

Entrapment

A

-criminal design originated with law enforcement
-D not predisposed to commit crime
(discuss this any time there is an undercover officer, it is usually not a valid defense)

145
Q

Perjury

A

intentional taking of a false oath in regard to a material matter in a judicial proceeding

146
Q

subornation of perjury

A

procuring or inducing another to commit perjury

147
Q

bribery

A

Bribery at common law was the corrupt payment or receipt of anything of value for official action. Under modern statutes, it may be extended to nonpublic officials, and either the offering of a bribe or the taking of a bribe may constitute the crime

148
Q

Any exercise of control by a government agent over a person or thing is a

A

Seizure

149
Q

Seizure definition

A

Reasonable person would not feel free to decline officer’s requests or terminate encounter, under the totality of the circumstances

150
Q

Arrest definition

A

Police take person into custody against their will for prosecution or interrogation

151
Q

Investigatory detention/Terry stops

A

Police can detain person for investigatory purposes if reasonable suspicion of criminal activity supported by articulable facts
-if reasonable suspicion that detainee is armed and dangerous may frisk for weapons (Terry frisk)

152
Q

Reasonable suspicion standard

A

More than vague suspicion/hunch, but less than probable cause
Based on totality of circumstances

153
Q

When reasonable suspicion is based on an informant’s tip, there must be an ____ to be sufficient

A

indicia of reliability (including predictive information)

154
Q

time limits for Terry stops

A

police must act in diligent and reasonable manner in confirming or dispelling their suspicions

155
Q

brief property seizures are valid if based on

A

reasonable suspicion

156
Q

generally, cops can stop a car if they have at least ____ that a law has been violated

A

reasonable suspicion

157
Q

a dog sniff during a routine traffic stop is

A

not a search (as long as stop not extended beyond normal time)

158
Q

a dog alert during a traffic stop can form the basis for

A

probable cause

159
Q

A police officer’s mistake of law ____ invalidate a seizure as long as the mistake was reasonable

A

Does not

160
Q

Informational roadblocks: If special law enforcement needs are involved, roadblocks will be valid if

A
  • cars are stopped on the basis of a neutral, articulable standard
  • designed to serve purposes closely related to a particular problem pertaining to automobiles
161
Q

Steps for analyzing search and seizure

A
  1. is there governmental conduct?
  2. is there standing? (reasonable expectation of privacy)
  3. is there a valid warrant?
  4. are there exceptions to the warrant requirement?
162
Q

Governmental conduct

A
  • police officers
  • government agents
  • private individuals acting at direction of police
163
Q

Standing to object to 4A search/seizure

A

Reasonable expectation of privacy with respect to place searched or item seized
(based on totality of circumstances)

164
Q

When does a person have a reasonable expectation of privacy?

A
  • person owned or had right to possess place searched
  • place searched is person’s home
  • person is overnight guest of owner
  • sometimes if the person owns the property seized, only if reasonable expectation of privacy of the item or the area searched
165
Q

Does a person have a reasonable expectation of privacy in their cell-site location information?

A

Yes

166
Q

Does a person generally have a reasonable expectation of privacy in in objects held out to the public, such as information in the hands of third parties?

A

No

167
Q

Examples of things held out to the public (no right to privacy):

A
  • sound of voice
  • style of your handwriting
  • paint on outside of car
  • account records held by bank
  • location of car on a public street or in driveway
  • –gps on car is a search
  • anything that can be seen across the open fields
  • anything that can be seen from flying over public airspace
  • odors emanating from luggage or car
  • garbage set out on curb for collection
168
Q

Core requirements for facially valid search warrant

A
  • probable cause

- particularity

169
Q

A warrant will be issued only if there is

A

probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed

170
Q

Warrants: An affidavit based on an informer’s tip must meet the _____ test

A

“totality of the circumstances”

Under this test, the informant’s reliability and credibility or their basis for knowledge are relevant factors in making this determination

171
Q

Warrants: particularity

A

Warrant must describe with particularity place wot be searched and items to be seized

172
Q

May a warrant be anticipatory?

A

Yes. A warrant can predict when illegal items may be in a suspect’s home or office. The items need not be on the premises at the time the warrant is issued.

173
Q

The magistrate who issues the warrant must be

A

neutral and detached (for example, a state attorney general is not neutral)

174
Q

warrant execution

A
  • only police may execute a warrant
  • no third parties may accompany police unless identifying stolen property
  • violation of the knock and announce statute will not result in suppression of evidence
175
Q

A warrant to search for contraband authorizes the police to detain occupants of the premises during a search, but a search warrant does not authorize

A

the police to search persons found on the premises who were not named in the warrant

176
Q

Exceptions to the warrant requirement

A
  • search incident to constitutional arrest
  • automobile exception
  • plain view
  • consent
  • stop and frisk
  • hot pursuit, evanescent evidence, emergency aid
177
Q

Search incident to arrest

A
  • police can search after valid arrest
  • police can make a protective sweep of the area to search for accomplices
  • search must b contemporaneous in time and place with arrest
  • can search person and wingspan
178
Q

If the arrest is unconstitutional, any search incident to that arrest is

A

Also unconstitutional

179
Q

Police may search passenger compartment of car incident to arrest only if

A
  • arrestee is unsecured and may still gain access to the vehicle OR
  • police reasonably believe evidence of the offense for which the person was arrested may be found in the vehicle
180
Q

Technological searches incident to arrest

A
  • warrantless breath test permitted but not blood test

- physical attributes of cell phone may be searched but not data

181
Q

Search incident to incarceration or impoundment

A
  • can make inventory of arrestee’s belongings

- can make inventory search of impounded vehicle

182
Q

Automobile warrant exception

A

If police have probable cause to believe vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the ENTIRE vehicle and any container that might reasonably contain the item
Parked in the curtilage—need a warrant
May include passenger’s belongings

183
Q

if the police have probable cause only to search a container in a vehicle (for example, luggage recently placed in the trunk), they may search

A

only the container, not other parts of the vehicle

184
Q

can the probable cause for the automobile warrant exception arise after the car is stopped?

A

Yes, but it must arise before anything or anybody is searched

185
Q

Plain view warrant exception

A

Police may make a warrantless seizure when

  • legitimately on the premises
  • discover evidence, contraband, or fruits or instrumentalities of crime
  • see evidence in plain view
  • have probable cause to believe (must be IMMEDIATELY APPARENT) item is evidence, contraband, or fruits or instrumentalities of crime
186
Q

Consent warrant exception

A

Warrantless search is valid if police have voluntary consent

if police lie about having a warrant that negates consent

187
Q

Consent warrant exception: Who can consent?

A
  • person with apparent equal right to use or occupy property
  • occupant cannot give valid consent when co-occupant is present and objects
  • if co-occupant objects and is removed for an unrelated reason, police may act on consent of remaining occupant
188
Q

Stop and frisk warrant exception

A

Terry Stop
A police officer may stop a person without probable cause for arrest if they have an articulable and reasonable suspicion of criminal activity. The officer may require the detainee to state their name, and if the officer also reasonably believes that the person may be armed and presently dangerous, the officer may conduct a protective frisk.

189
Q

Stop and frisk warrant exception- scope of the frisk

A

Generally limited to patdown of outer clothing, unless officer has specific information that a weapon is hiding in a particular area of the suspect’s clothing

190
Q

Terry frisk-what may be seized?

A

Officer may seize any item that officer reasonably believes, based on plain feel, is a weapon or contraband

191
Q

Manipulated counts as plain feel?

A

No

192
Q

Stop and frisk: automobile stops

A

If officer believes driver or passenger may be armed and dangerous, officer may

  • frisk suspected person
  • search vehicle in areas where weapon may be placed
193
Q

Evanescent evidence

A

Evidence that might disappear quickly if police took the time to get a warrant

194
Q

Police in hot pursuit of a fleeing felon may

A

Make a warrantless search and seizure and may pursue suspect into private dwelling
Rule of thumb: If the police are not within 15 minutes behind the fleeing felon, it is not a hot pursuit that falls under the exception

195
Q

Emergency aid/community caretaker exception

A

Police may enter premises without warrant if officer faces emergency that threatens health or safety

196
Q

Administrative searches: exceptions permitting warrantless searches

A
  • airline passengers

- drug tests of schoolchildren involved in extracurricular activities

197
Q

Public school searches

A

reasonable grounds necessary
search reasonable if
-offers moderate chance of finding evidence of wrongdoing
-measures reasonably related to search objectives
-search is not excessively intrusive in light of the age and sex of the student and the nature of the infraction

198
Q

Wiretapping and eavesdropping

A

-is a search under 4A, so requires a warrant

199
Q

Unreliable ear

A

Speaker assumes risk other person consents to government monitoring or is an informer

200
Q

Uninvited ear

A

Speaker has no 4A claim if they make no attempt to keep conversation private

201
Q

Evidence obtained in a manner that shocks the conscience— in other words, a manner that offends a “sense of justice”—is

A

inadmissible under the Due Process Clause

202
Q

For a self-incriminating statement to be admissible under the Due Process Clause, it must be _____, as determined by the totality of the circumstances

A

Voluntary

203
Q

Harmless error test for involuntary confessions

A

Conviction need not be overturned if overwhelming evidence of guilt

204
Q

6A right to counsel applies to

A

All critical stages of prosecution after judicial proceedings have begun

205
Q

6A prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after

A

the defendant has been charged unless the defendant has waived their right to counsel

206
Q

Can there be a violation of the 6A right to counsel before formal proceedings have begun?

A

No

Arrested, but not charged = 5A right to counsel under Miranda

207
Q

Stages when 6A right to counsel applies (specific ones)

A
  • post-indictment interrogation
  • preliminary hearings to determine probable cause to prosecute
  • arraignment
  • POST-charge lineups
  • guilty plea and sentencing
  • felony trials
  • misdemeanor trials when imprisonment actually imposed
  • overnight recesses during trial
  • appeals as a matter of right
  • appeals of guilty pleas
208
Q

Stages when NO 6A right to counsel

A
  • blood sampling
  • taking of handwriting or voice exemplars
  • precharge or investigative lineups
  • photo identifications
  • preliminary hearings to determine probable cause to detain
  • brief recesses during D’s testimony at trial
  • discretionary appeals
  • parole and probation revocation hearings
  • post-conviction proceedings
209
Q

6A right to counsel is offense specific

A

D may be questioned regarding unrelated, uncharged offenses without violating 6A

210
Q

Waiver of 6A right to counsel must be

A

Knowing and voluntary

211
Q

Remedy for 6A right to counsel violations

A

Nontrial proceedings: harmless error rule applies

Trial: failure to provide counsel results in automatic reversal of conviction

212
Q

Admissibility of statements obtained in violation of 6A right to counsel

A

not admissible in the prosecution’s case-in-chief, may be used to impeach the defendant’s contrary trial testimony

213
Q

Miranda warnings (5A)

A

required when person in custodial interrogation
Must be told
-right to remain silent
-anything said can be used against them in court
-right to attorney
-if person cannot afford an attorney, one will be appointed
Warnings need not be verbatim if substance is there

214
Q

Miranda warnings and governmental conduct

A

-miranda warnings necessary only if detainee knows they are being interrogated by government agent

215
Q

Miranda requirements ____ apply to an uncharged witness testifying before a grand jury, even if subpoenaed to be there

A

Do not

216
Q

Two step process for determining custody (Miranda)

A
  • whether a reasonable person under the circumstances would feel free to terminate interrogation and leave (under totality of circumstances)
  • whether environment presents the same inherently coercive pressures as station house questioning
217
Q

Interrogation requirement (Miranda)

A

Interrogation: any words or conduct by police that they should know would likely elicit an incriminating response (does not include routine booking questions)
Miranda warnings not required before spontaneous statements

218
Q

Waiver of Miranda rights must be

A

Knowing and voluntary

219
Q

If detainee is silent after Miranda warnings

A
  • court will not presume waiver OR invocation of right to remain silent
  • police can continue to question
220
Q

Invocation of right to remain silent under Miranda

A
  • must be unambiguous
  • once invoked, police must scrupulously honor request by not badgering detainee
  • can probably requestion about a different crime after a break, if fresh warnings are administered
221
Q

Invocation of right to counsel under Miranda

A
  • must be unambiguous
  • all questions must cease until counsel has been provided unless detainee waives right to counsel OR is released back to normal life and 14 days have passed since release
222
Q

Effect of a Miranda violation

A
  • evidence generally inadmissible
  • statements may be used to impeach D’s trial testimony, but not used as evidence of guilt
  • detainee gives police information that leads to nontestimonial evidence = evidence suppressed if failure to give Miranda warnings was purposeful, but likely admitted if failure not purposeful
223
Q

Public safety exception to Miranda

A

Police can interrogate without Miranda warnings when reasonably prompted by concern for public safety

224
Q

Pretrial identification and 6A

A
  • 6A right to counsel at post-charge lineup

- no right to counsel at photo identifications

225
Q

D can attack identification if it is

A

unnecessarily suggestive and there is substantial likelihood of misidentification

226
Q

remedy for unconstitutional identification

A

exclusion

227
Q

independent source exception to exclusion of unconstitutional identification

A

A witness may make an in-court identification despite the existence of an unconstitutional pretrial identification if the in-court identification has an independent source

228
Q

Exclusionary rule

A

Unconstitutionally obtained evidence excluded at trial

229
Q

Fruit of the poisonous tree

A

Evidence obtained from exploitation of unconstitutionally obtained evidence
(also excluded)

230
Q

Exceptions to fruit of the poisonous tree doctrine

A
  • fruits derived from statements obtained in violation of Miranda
  • evidence obtained from independent source
  • attenuation: causal link between police misconduct and evidence is broken
  • D’s intervening act of free will
  • inevitable discovery
  • violations of knock and announce rule
231
Q

Three Ins that make evidence admissible

A
  • independent source
  • intervening act of free will
  • inevitable discovery
232
Q

A defendant ___ exclude a witness’s in-court identification on the ground that it is the fruit of an unlawful detention

A

May not

233
Q

When is the exclusionary rule inapplicable?

A
  • The exclusionary rule is inapplicable to grand juries unless evidence was obtained in violation of the federal wiretapping statute
  • parole revocation hearings
  • civil proceedings
  • where evidence was obtained contrary ONLY to state law or agency rules
  • police arrest someone erroneously but in good faith thinking they are acting pursuant to a alid search warrant, arrest warrant, or law
234
Q

Four exceptions to good faith reliance on defective warrant

A
  1. affidavit is so lacking in probable cause no reasonable officer would rely on it
  2. affidavit is so lacking in particularity no reasonable officer would rely on it
  3. police officer or prosecutor lied to or misled the magistrate when seeking the warrant
  4. magistrate is biased and therefore wholly abandoned neutrality
235
Q

Use of excluded evidence for impeachment purposes

A

-voluntary confession taken in violation of Miranda admissible for impeachment of D

236
Q

Harmless error test

A

If illegal evidence was admitted, conviction should be overturned on appeal unless govt can show beyond a reasonable doubt that the error was harmless

237
Q

If probable cause has not already been determined and there are significant constraints on an arrestee’s liberty (for example, jail or bail, but not release on recognizance), a preliminary hearing to determine probable cause must be held

A

within a reasonable time (for example, 48 hours)

238
Q

grand jury proceedings

A
  • conducted in secret
  • D has no right to notice
  • no right to counsel
  • no right to have evidence excluded
  • no right to challenge subpoena on 4A grounds
  • conviction from indictment issued by grand jury from which minority group excluded will be reversed
239
Q

6A speedy trial factors

A
  • length of delay
  • reason for delay
  • whether D asserted right
  • prejudice to D
240
Q

Remedy for speedy trial violation

A

Dismissal with prejudice

241
Q

Right to speedy trial does not attach until

A

Arrest or charge

242
Q

Prosecutorial duty to disclose: Failure to disclose material exculpatory evidence (whether willful or inadvertent) is grounds for reversing conviction if

A
  • evidence is favorable to D AND

- prejudice has resulted

243
Q

Insanity is a defense to a criminal charge

A
  • based on the defendant’s mental condition at the time they committed the charged crime
  • A defendant acquitted by reason of insanity may NOT be retried and convicted, although they may be hospitalized under some circumstances
244
Q

incompetency to stand trial

A

not a defense to the charge, but rather is a bar to trial. It is based on the defendant’s mental condition at the time of trial. If the defendant later regains competency, they can then be tried and convicted

245
Q

Due process is violated of judge

A

Has actual malice against D or financial interest in trial result

246
Q

Right to trial by jury only for

A

Serious offenses (imprisonment for more than 6 months is authorized)

247
Q

Number of jurors constitutionally required

A

6, must be unanimous verdict

248
Q

D has right to ___ selected from representative cross-section of community

A

Venire, but not their particular jury

249
Q

Peremptory challenges

A

Generally may use peremptory challenge for any reason

Cannot challenge jurors solely on basis of race or gender

250
Q

Challenges to juror for cause

A

Juror should be excluded for cause if juror’s views would prevent or substantially impair performance of duties

251
Q

A defendant is entitled to questioning on voir dire specifically directed to racial prejudice whenever

A

race is bound up in the case or the defendant is accused of an interracial capital crime

252
Q

D may waive right to counsel if

A
  • waiver is knowing and intelligent

- D is competent to proceed pro se

253
Q

Effective assistance of counsel

A
  • included in 6A right of counsel
  • right extends to the first appeal
  • generally presumed
254
Q

Ineffective assistance of counsel

A
  • deficient performance by counsel
  • but for the deficiency, result of proceeding would have been different
  • D must point out specific deficiencies
255
Q

If two persons are tried together and one has given a confession that implicates the other, the right of confrontation

A

prohibits use of that statement, even where the confession interlocks with the defendant’s own confession, which is admitted

256
Q

confrontation clause: Co-defendant’s confession may be admitted if

A
  • all portions referring to other D can be eliminated
  • confessing D takes the stand and is subject to cross, OR
  • confession used to rebut D’s claim that confession was obtained coercively
257
Q

Confrontation clause: Prior testimonial evidence not admitted unless

A
  • declarant unavailable

- D had opportunity to cross declarant at time statement was made

258
Q

Burdens of proof

A
  • state must prove guilt beyond a reasonable doubt
  • burden may be on D to prove affirmative defenses
  • presumption that shifts burden of proof to D violates 14A
259
Q

Guilty plea must be

A

Voluntary and intelligent
Must address D personally in open court on the record
(understands nature of the charge, elements, max/mandatory min penalty, waive right to trial, etc)

260
Q

Remedy for failing to meet the standard of taking a plea

A

Withdrawal and pleading anew

261
Q

Reasons to set aside plea

A
  • involuntariness
  • lack of jx
  • ineffective assistance of counsel
  • failure to keep plea bargain
262
Q

Plea bargain enforced against prosecutor and D, but not against

A

Judge, who does not have to accept the plea

263
Q

Death penalty

A

Must be imposed under statutory scheme that gives jury reasonable discretion, full information, and guidance

264
Q

No death penalty for

A
  • rape
  • cannot execute prisoner who is insane at time of execution
  • person who is intellectually disabled
  • minor at the time of offense
265
Q

Is there a federal constitutional right to appeal?

A

No

266
Q

Habeas corpus proceeding

A

-no right to appointed counsel
-petitioner has burden of proof to show unlawful detention by preponderance of the evidence
(technically a civil proceeding)

267
Q

Right to counsel at parole and probation revocation hearing

A

If revocation of probation also involves imposition of a new sentence, the defendant is entitled to representation by counsel in all cases in which they are entitled to counsel
at trial. If, after probation revocation, an already imposed sentence of imprisonment springs into application, or if the case involves parole revocation, the right to counsel is avail- able only if representation is necessary to a fair hearing

268
Q

Prison regulations impinge on due process rights only if the regulations impose

A

“atypical and significant hardship” in relation to the ordinary incidents of prison life

269
Q

Is there 4A protection in prison cells?

A

No

270
Q

A person may not be retried for the same offense once

A

Jeopardy attaches

271
Q

When jeopardy attaches

A
  • jury trial: empaneling and swearing of jury

- bench trial: when first witness is sworn

272
Q

Exceptions to double jeopardy clause permitting retrial

A
  • first trial ends in a hung jury
  • manifest necessity to abort first trial (ex medical emergency)
  • D successfully appealed conviction (unless ground for reversal was insufficient evidence, cannot retry for a greater offense)
  • D breaches plea bargain
  • D could have been tried for multiple charges in a single trial, but D elects to have offenses tried separately
273
Q

Two crimes are the same offense for double jeopardy unless

A

Each crime requires proof of additional element that the other does not

274
Q

Lesser included offenses and DJ

A
  • attachment of jeopardy for a greater offense bars retrial for lesser included offense
  • attachment of jeopardy for lesser included offense bars retrial for greater offense
275
Q

New evidence exception to DJ

A

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. Similarly, a retrial for murder is permitted if the victim dies after attachment of jeopardy for battery

276
Q

Prohibition against DJ does not apply to trials by separate sovereigns

A
  • state and federal govt = separate sovereigns
  • 2 states = separate sovereigns
  • state and its municipalities = same sovereign
277
Q

5A privilege against self-incrimination can be asserted by

A

Any natural person in any type of case when answer to question might tend to incriminate them

278
Q

5A privilege against self-incrimination: if an individual responds to questions instead of claiming the privilege during a civil proceeding, they _____ later bar that evidence from a criminal prosecution on compelled self-incrimination grounds

A

CANNOT

279
Q

Does being required to give one’s name after Terry stop violate 5A privilege against self-incrimination?

A

No

280
Q

Scope of 5A privilege against self-incrimination protection

A
  • testimonial or communicative evidence, and not real or physical evidence
  • must relate a factual assertion or disclose information
  • NOT blood, handwriting, voice, hair, DNA after arrest for serious crime
  • NOT production of documents or seizure of documents
281
Q

When does a 5A self-incrimination clause violation occur?

A

A violation of the Self-Incrimination Clause does not occur until a person’s compelled statements are used against them in a criminal case

282
Q

Comments on D’s silence

A

-prosecutor may not comment on D’s silence after receiving Miranda warnings or at trial
(can be used if silence before Miranda warnings)
-prosecutor can comment on D’s failure to take stand when in response to D’s assertion that D was not allowed to explain story

283
Q

What test applies if prosecutor improperly comments on D’s silence?

A

Harmless error

284
Q

A witness ____ be compelled to answer questions if granted adequate immunity from prosecution.

A

MAY

285
Q

Use and derivative use immunity

A

Guarantees that a witness’s testimony and evidence located by means of the testimony will not be used against the witness
(can still be prosecuted if P shows that the source was independent of the immunized testimony)

286
Q

Use of immunized statements

A
  • cannot be used for impeachment of D’s testimony at trial
  • may be used in a trial for perjury
  • use by another sovereign prohibited
287
Q

A person has no privilege against compelled self-incrimination if there is no possibility of

A

incrimination (for example, statute of limitations has run)

288
Q

waiver of privilege

A

D waives by taking witness stand

Witness waives by disclosing incriminating information

289
Q

Is there a right to trial by jury for delinquency proceedings?

A

No

290
Q

8A and fines

A

The Supreme Court has held that the Excessive Fines Clause of the Eighth Amendment applies only to fines imposed as punishment; it does not apply to civil fines. Thus, penal forfeitures are subject to the Clause, but civil forfeitures are not.

291
Q

5A right to counsel applies ___ formal charges

A

BEFORE

292
Q

6A right to counsel applies ____ formal charges and is ____

A

AFTER

OFFENSE SPECIFIC

Bar Prep (9 decks)

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