CRIM

Question 1

4th Amendment

Answer 1

The 4A protects against unreasonable searches and seizures. It is incorporated to the states through the 14th. To be valid, there must be a valid warrant or the circumstances meets one of the exceptions

REASONABLE EXPECTATION OF PRIVACY

4A requires officers to produce a warrant

Question 2

4A Search: Exclusionary Rule and FOTPT

Answer 2

The exclusionary rule is a judge-made doctrine that excludes evidence obtained in violation of the 4th/5th/6th Amendments.

Exceptions:

Inevitable discovery through lawful means: If the evidence would have been discovered through a legal means, despite the illegal action, the evidence will be admissible.

An independent source unrelated to the taint: The evidence was discovered by an independent source.

The passage of time: Sufficient time has passed between the illegal action and the discovery of the evidence.

Good faith reliance: The police execute a warrant believing it is valid in good faith and find evidence, but the warrant is later found to be defective; the evidence is admissible.

Question 3

4A Gov Actors

Answer 3

The 4A only protects against searches and seizures by gov actors at the state, federal, or local level.

Question 4

4A Standing

Answer 4

Defendant only has standing under the fourth amendment if he had a reasonable expectation of privacy.

Question 5

Warrant Exception: Seizure of Person/Stop

Answer 5

A police officer may stop a person if he had a reasonable suspicion based on specific and articulable facts that the person has committed or is in the process of committing a crime

Question 6

Warrant Exception: Frisk

Answer 6

Police officer may frisk the suspect if he has a reasonable suspicion that the suspect is armed and dangerous. The officer may only pat down suspect’s outer clothing.

Question 7

4A Warrant Exception: Plain View/Feel

Answer 7

When an officer is lawfully present on the premises and sees an item that is immediately apparent is incriminating evidence, the officer may obtain the evidence

Question 8

5th Amendment

Answer 8

The 5A grants the privilege against self-incrimination and the right to speak to an attorney before police interrogation. It applies to testimonial evidence.

Go into Miranda rule

Question 9

5A Miranda

Answer 9

Police officers must give defendants Miranda warnings when the defendant is in custody and
being interrogated. Miranda warnings inform the defendant of his right to remain silent and the
right to an attorney.

There must be both custody and interrogation

Question 10

5A Miranda - Custody

Answer 10

A suspect is in police custody if he reasonably believes that he does not have the right to leave

Look at the totality of the circumstances

“Although imprisonment alone does not create a custodial situation, a look at the totality of the circumstances here would show D was in custody as far as the 5th Amendment is concerned since he was locked in a cell and being asked about the crime he was locked up for.”

Question 11

5A Miranda - Interrogation

Answer 11

A person is subject to interrogation if the police engage in any conduct that is likely to elicit a
response, whether incriminating or exculpatory

Question 12

Miranda - Assertion of Right to Remain Silent

Answer 12

After a suspect unambiguously asserts his right to remain silent, the questioning must stop for a reasonable period of time and may not resume without re-mirandizing the suspect.

Question 13

Involuntary Confession

Answer 13

An involuntary confession is inadmissible for all purposes under the due process clause of the 5A.

Question 14

6th Amendment Right to Testify

Answer 14

In a criminal trial, the defendant has the constitutional right to take the stand and testify on his own behalf.

Question 15

6th Amendment Right to Self-Representation

Answer 15

In Frettata, the court held that the 6A right to counsel includes the right to self-representation. Nevertheless, the court has discretion to deny this right if the defendant is found to be incompetent to represent himself or if not in the interests of justice.

Question 16

Warrant Requirements

Answer 16

In order for there to be a valid search or seizure or arrest, there must be a valid warrant on probable cause. PC = sufficient facts that render a reasonable officer to conclude that a crime has been committed or is about to be committed.

Must be from a neutral and detached magistrate

Must state with specificity what is to be searched

Based on PC

All prior to conducting the search or seizure.

Question 17

No Warrant

Answer 17

If officers do not have a W, they may arrest citizens or conduct searches based on probable cause that the suspect is or has been engaged in criminal activity

Question 18

4A Warrant Exception: Terry Stops

Answer 18

Officers may conduct lesser searches and seizures based on reasonable suspicion

(Must be more than mere hunch)

Explain why RS

Frisk of a Person – The officer can then frisk or pat down the outer clothing of the
defendant for purposes of officer safety. If the officer feels an object whose identity is
immediately obvious as contraband, it can be seized during the frisk under the “plain
feel” exception

Automobile Frisk – If an officer lawfully stops a car (reasonable suspicion that a traffic
violation has occurred), the officer may frisk the inside of the car if she has reasonable
suspicion that there is a weapon in the car. However, the office can only frisk the areas
of the car that may contain a weapon

Question 19

Fruit of the Poisonous Tree

Answer 19

Evidence that is obtained as a result of other evidence procured from unlawful searches and seizures may not be admissible unless too attenuated from initial search

Exceptions: inevitable discovery, attenuation, independent act of free will

Question 20

Dog Sniff

Answer 20

Florida v Harris: the USSC held that drug detection dogs are reliable and a trained dog’s reaction or indication is sufficient to substantiate reasonable suspicion of criminal activity

However, officers may not conduct snooping w a dog or binoculars in the front porch of a citizen’s house without reasonable suspicion

Question 21

Curtilage

Answer 21

Officers may not trespass onto curtilage of a house to conduct a search if they have no reasonable suspicion that the occupants are engaged in criminal behavior

Question 22

4A Warrant Exception: SILA

Answer 22

Where an officer has probable cause (which is required for arrest) to arrest a person, the officer may search the person and his immediate wingspan

Arrest lawful?

If the arrestee is at home, the police can search closets or other spaces adjoining the place of arrest in the home where an attack is likely. If the arrestee is in a vehicle, the police may search the glove compartment if the arrestee is within reaching distance of it or it is reasonable that evidence might be in the vehicle.

Question 23

4A Attack Plan

Answer 23

-4A Gen Rule
-Gov/state action
-REP
-Seizure: reasonable person not free to leave
-Search: valid warrant, exceptions to no warrant, exclusionary/FOTPT

Question 24

Miranda Attack Plan

Answer 24

-Miranda General Rule
-Custody
-Interrogation
-Conclusion

Question 25

Entrapment Defense

Answer 25

Where a defendant did not have a predisposed mens rea to commit the crime until law enforcement’s involvement or encouragement

Question 26

4A Warrant Exceptions: Consent for Search

Answer 26

If a party consents to a search, a warrant is not required. The consent must be voluntary,
and there must be no threats of harm, compulsion, or false assertion of lawful authority.

Question 27

4A Warrant Exception: Exigent Circumstances

Answer 27

Under a totality of circumstances test, exigent circumstances may make a warrantless
search constitutional if probable cause exists.

Exigency can be determined by many
factors, including hot pursuit of a fleeing felon, reasonable apprehension that a delay in
getting a warrant would result in the immediate danger of evidence destruction, or
police and/or public safety

Question 28

Inevitable Discovery

Answer 28

When the evidence is derived from an unlawful search but would have eventually been obtained independent from the unlawful search, the court will allow the evidence to be admitted

Question 29

Attempt

Answer 29

Attempt requires the specific intent to achieve the criminal act and a substantial step (mere preparation to commit the crime is not enough) in the direction of the commission of the act or dangerously close to the commission of the act.

Question 30

Kidnapping

Answer 30

Carrying away of another without their consent

Question 31

4A Reasonable Expectation of Privacy

Answer 31

The defendant must also prove that he has a REP as to the places searched and items seized by the
government

In general, no REP in open spaces/fields/airspace

Whether society would find such belief in privacy objectively reasonable (generally no expectation of privacy in public and open spaces and no REP for statements made out in public)

Question 32

Consent to Enter under False Pretenses

Answer 32

A warrantless entry onto one’s property doesn’t violate the 4Aif the owner gives consent. However, cannot be made under false pretenses

–> FOTP, if applicable

Question 33

Standing in Derivative claims

Answer 33

COUNTER ARG

The prosecution will argue that D lacks standing to make the above argument regarding entry onto “x” premises/home. Derivative claims under the 4A are not allowed

Question 34

Enhanced intrusion

Answer 34

Microphones, binoculars, etc = enhanced intrusion on D’s REP

COUNTER
Pros will argue that the use of the microphone did not constitute enhanced intrusion bc F purchased the microphone at ____ = readily available technology

Question 35

Probable Cause

Answer 35

Specific, articulable facts that would cause a reasonable person to believe that a specific individual is committing, has committed a crime

Direct info vs 3P info

Question 36

3P info basis for PC

Answer 36

Sufficient veracity and basis of knowledge

Veracity: info about the 3P

Basis of knowledge: can be demonstrated by corroborating evidence

Question 37

Robbery

Answer 37

Pros must prove BARD

Intentional trespassory

Taking away of property of another

With intent to permanently deprive

While using force or threat of force

(Larceny by force)

Question 38

Conspiracy

Answer 38

Conspiracy is an agreement between two or more people to accomplish an unlawful purpose plus specific intent to agree and commit the criminal objective. There must also be an overt act in furtherance of the conspiracy

A conspirator is liable for the conspiracy and a co-conspirator’s substantive crimes in furtherance of the conspiracy

Crime complete upon making agreement

No merger

Question 39

Unilateral Conspiracy

Answer 39

In some jurisdictions, a unilateral conspiracy occurs if only one person had the requisite intent to commit the crime, even if not all the actors pursuant to the agreement had the intent

Question 40

Pinkerton’s Rule (conspiracy)

Answer 40

All co-conspirators are liable for all reasonably foreseeable crimes that resulted from the conspiracy

Question 41

Withdrawal form conspiracy

Answer 41

In most jdx, co-conspirators cannot withdraw from the conspiracy once it has been committed

In others, co-consp can withdraw if he effectively communicates his intent to withdraw from the conspiracy to the co-consp and then ceases to commit

Question 42

Accomplice Liability

Answer 42

Both defendants are liable when one criminal actor encourages another to commit a crime, and actively assists him in doing so

A person is liable as an accomplice if he aids or abets a principal prior to or during the crime with the intent for a crime to be committed.

The accomplice is liable for the crime itself and all other foreseeable crimes that might occur.

Question 43

Burglary

Answer 43

Breaking and entering, of a dwelling house, at night, with the intent to commit a felony inside

Breaking - using force, can be slight
Entering - D’s body or instrument crosses in
Dwelling - Modernly, does not have to be a dwelling house or at night
Intent to commit felony

Any movement of the exterior of the house to create entry qualifies as a breaking

Question 44

Larceny

Answer 44

The trespassory taking and carrying away of a personal property of another with the intent to permanently deprive (at the time of the taking).

Trespassory - without the owner’s consent
Taking
Carrying away
PP of another
With intent to permanently deprive

Question 45

Defense: Duress

Answer 45

Occurs when a defendant is coerced to commit the crime against his will

Question 46

Privilege Against Self-Incrimination

Answer 46

Under the 5A, applicable to the states through the DPC, no person shall be compelled by any other government actor to testify against oneself during criminal proceedings

Question 47

Unduly Suggestive Lineup

Answer 47

Under the 5A, the gov may not introduce statements of identification obtained through an unduly suggestive lineup that is likely to lead to a mistaken identification UNLESS the id itself contains sufficient indicia of reliability so as to purge the taint of the mistaken identification

Exception: no DP violation when the identification arises from a photo ID lineup

Question 48

Right to counsel at lineup

Answer 48

No right to counsel exists at a lineup before the defendant is charged with a crime

Question 49

5A Invocation of Miranda Rights

Answer 49

After a defendant is Mirandized, he must either invoke his 5A right to silence or 5A right to an attorney

Must be clear and unambiguous and clearly state that the D intends to either remain silent or seek counsel (Davis)

Question 50

invocation of Moseley Right

Answer 50

If the D clearly and unambiguously invokes his right to silence, this right also must be scrupulously honored. The interrogation must cease unless either the D voluntarily re-initiates contact or a reasonable break in Miranda custody has occurred such that that the coerciveness of the interaction has dissipated due to lapse of time and custody

Question 51

5A Waiver of Miranda

Answer 51

A D’s waiver of Miranda rights must be knowing and voluntary, meaning it must be the product of his free will rather than coerciveness of the interrogation setting

Question 52

Pat-down

Answer 52

Requires reasonable suspicion that the individual has weapons on his person

RS= articulable facts that would lead a reasonable officer to believe that the person possessed a dangerous weapon (less than PC)

Question 53

Cell phone search

Answer 53

SC held in Riley: certain types of info entitled to greater protection under 4A. Cell site location info, obtained by means of cell phone searches by officers, was a type of information that was so broad and of such depth, and personal, that it was entitled to extra protection under the 4A

Need PC and a warrant

Question 54

5A - Miranda Attack Plan

Answer 54

-5A General Rule
-Custodial Interrogation
-Miranda required or given?
-D waive or invoke Miranda?
-Was there a violation?

Question 55

4A Warrant Exception: Automobile

Answer 55

The auto exception states that if an officer has PC that an item is located in a car, they may search where it might REASONABLY be (extends to trunk)

Question 56

FMR

Answer 56

Under the FMR, D can be found guilty for the unintended and foreseeable killing that is proximately caused by or during the commission or attempted commission of an inherently dangerous felony

Prove BARRK first

Foreseeable
Proximate Cause
No liability for the death of co-felon (Redline)
Point of safety (felony done)

Question 57

Withdrawal as accomplice

Answer 57

A D can effectively withdraw from a crime if he does so in a timely manner to inform authroites and prevent the crime

Question 58

Murder

Answer 58

Murder is defined as the unlawful killing of another with malice aforethought

Malice can be proved through ITK, GBI, Depraved heart, FMR

Question 59

Depraved heart murder (CL)

Answer 59

To e found guilty, D must demonstrate a reckless indifference to an unjustifiably high risk to human life

Question 60

Insanity Defenses: M’Naghten

Answer 60

Under the M’Naghten rule, the defendant is not guilty if, because of a defect of reason due to a mental disease, the defendant did not know either (i) the nature and quality of the act or (ii) the wrongfulness of the act

Question 61

Insanity Defenses: Irresistible Impulse

Answer 61

Under the irresistible impulse test, the defendant is not guilty if he lacked the capacity for self-control and free choice because mental disease or defect prevented him from being able to conform his conduct to the law

Question 62

Insanity Defenses: Durham

Answer 62

Under the Durham rule, a defendant is not guilty if the unlawful act was the product of the defendant’s mental disease or defect and would not have been committed but for the disease or defect

Question 63

Insanity Defenses: MPC test

Answer 63

The Model Penal Code combines the M’Naghten and irresistible impulse tests. The defendant is not guilty if, at the time of the conduct, he, as a result of a mental disease or defect, did not have substantial capacity to appreciate the wrongfulness of the act or to conform his conduct to the law

Question 64

Defense: Intoxication

Answer 64

There are two states of intoxication, voluntary and involuntary.

Voluntary intoxication involves the voluntary ingestion of an intoxicating substance. It is a defense to most specific intent crimes if the defendant did not have the state of mind to form intent due to intoxication, but it is not a defense to murder.

Involuntary intoxication is the involuntary ingestion of an intoxicating substance, such as with duress, without knowing of its nature, prescribed by a medical professional, etc. It is a defense to murder.

Question 65

Defense: self-defense

Answer 65

Self-defense is the use of reasonable force to protect oneself at a reasonable time. Deadly force may only be used to protect against the use of deadly force.

Unreasonable self-defense is a defense available to one who engages in good faith but unreasonable self-defense. It is a mitigating defense which takes a murder charge down to voluntary manslaughter

Question 66

Criminal battery

Answer 66

Criminal battery is the intentional unlawful application of force to another person. Battery is a general intent crime, so intent will be found through intentional conduct and/or criminal negligence (conduct that carries a high risk of harming others).

Question 67

Kidnapping

Answer 67

Kidnapping is the unlawful confinement of a person against that person’s will coupled with either movement or concealment of that person.

Question 68

Receipt of Stolen Property

Answer 68

Receipt of stolen property requires receipt or control of stolen property, with the knowledge that the property was wrongfully taken, with the intent to permanently deprive the owner of the property.

Question 69

Accessory After the fact

Answer 69

An accessory after the fact is one who aids a felon to avoid apprehension after the felony is committed, and to be guilty the person must know the felony was committed.

Question 70

4A Seizure

Answer 70

A seizure occurs if, under the totality of circumstances, a reasonable person would not feel free to leave. Types of valid seizure include arrest, stop and frisk, police checkpoints, and traffic stops.

Question 71

4A Seizure: Arrest

Answer 71

An arrest in the defendant’s home generally requires an arrest warrant. However, an arrest
warrant is not required to make an arrest in a public place. If an officer witnesses a felony
or misdemeanor, he can make a warrantless arrest. Also, if an officer has probable cause to
believe that a felony has been committed (not witnessed by the officer), an office can make
a warrantless arrest.

Go into why probable cause

Question 72

4A Seizure: Terry

Answer 72

An officer can stop a person if he has reasonable suspicion that the person is engaged in or
has engaged in criminal activity.

Go into why reasonable suspicion

Question 73

4A Seizure: Police Checkpoints

Answer 73

Police checkpoints are generally valid, as long as the stop is conducted in a nondiscriminatory manner and the purpose of the checkpoint is for an articulable reason beyond general crime prevention. For example, DUI checkpoints are legal, but checkpoints that are generally looking for contraband are not.

Question 74

4A Seizure: Traffic Stop

Answer 74

Traffic stops are valid if the officer has reasonable suspicion or probable cause that a traffic
law has been violated.

Question 75

4A Search

Answer 75

A search occurs when governmental conduct violates the defendant’s reasonable expectation of
privacy. Government actors must have a valid search warrant or an exception to the search warrant, and must not be subject to the exclusionary rule and FOTPT

Explain why/why not REP

Question 76

4A Search: Valid Search Warrant

Answer 76

To be valid, a warrant must (i) be issued by a detached and neutral magistrate, (ii) be based
upon probable cause, and (iii) describe with particularity the defendant and crime or the
places to be searched and items to be seized

Subject to certain exceptions, under the “knock and announce” rule, the police must also
announce their presence and state their purpose

Warrant defective and GOOD FAITH: Finally, evidence collected in violation of a defendant’s 4th Amendment right to privacy may nonetheless, be admissible if police officers acted in good faith reliance upon a defective
search warrant as measured by a reasonable person standard

Question 77

4A Search: Exceptions to a warrantless search

Answer 77

Warrantless searches constitute a 4th Amendment violation, and evidence seized during the
search will be inadmissible unless subject to an exception

Discuss all that apply

Terry S+F
SILA
Auto
Plain View
Exigent Circumstances
Consent

Question 78

5A Miranda: Re-approaching the D

Answer 78

If a defendant invokes his Miranda rights, the police may not re-approach the defendant to question him about the charged crime or any other crime

Question 79

5A Miranda: Spontaneous statements

Answer 79

If the defendant voluntarily makes a statement, this statement will be admissible, even if he
has previously invoked his Miranda rights

Question 80

5A Miranda: Standing

Answer 80

A defendant may only assert his own Miranda rights; he may not assert a Miranda rights violation on behalf of another person, such as a co-defendant who has had her Miranda rights violated

Question 81

5A: Exclusion of Statements

Answer 81

Statements made in violation of Miranda rights will be excluded, but they are admissible for
impeachment purposes if the defendant chooses to testify and the prosecution seeks to
impeach (discredit) the defendant’s testimony. Also, any physical fruits of the confession, such
as evidence seized in reliance on statements made in the confession (such as the location of
contraband) are not excluded.

Question 82

6A Right to Counsel

Answer 82

The 6th Amendment right to counsel automatically applies at all critical stages of prosecution after formal proceedings begin. The right attaches when the state initiates prosecution through an indictment or formal charge and ends at the sentencing stage

The 6th Amendment provides a constitutional right to counsel in any case in which the defendant is sentenced to incarceration, even if that sentence is suspended.

Question 83

6A Offense Specific

Answer 83

The 6th Amendment does not prevent the police from questioning the defendant about
unrelated offenses that are not the charged crimes in question

Question 84

6A Waiver

Answer 84

If a defendant waives his 6th Amendment right to counsel, it must be knowing and voluntary.

Question 85

Due Process Clause, 14th Amendment & 5th Amendment

Answer 85

Under the Due Process Clause, which is applicable to the states under the 14th Amendment and the federal government under the 5th Amendment, police line-ups must not be conducted in a manner that is unnecessarily suggestive or provides a substantial likelihood of misidentification.

Question 86

REP: Auto Stops

Answer 86

Only unreasonable searches and seizures are subject to the 4th Amendment. A search occurs when government conduct violates a reasonable expectation of privacy. Although, under the Fourth Amendment, stopping a car constitutes a seizure of the driver and any passengers, there is a lesser expectation of privacy with regard to the automobile and its contents than with a home. Even so, officers must have an articulable, reasonable suspicion of a violation of the law in order to stop an automobile.

Question 87

Search Warrant Requirement

Answer 87

When a search occurs, a warrant serves to protect a person’s privacy interest against unreasonable government intrusions. A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, must be supported by oath or affidavit, and must describe the place to be searched and the items to be seized.

Question 88

Exception to Warrant Requirement - General Rule

Answer 88

Warrantless searches are per se unreasonable unless the search satisfies one of the exceptions to the warrant requirement.

Question 89

6A Right to Confrontation

Answer 89

The admission of a confession by a non-testifying co-defendant at a joint trial against the defendant violates the 6th Amendment. A limiting instruction will not cure the defect. If the co-defendant testifies, then the rule does not apply. The accused may assert a demand for a severance of the trial of his case from a co-defendant’s case whenever the prosecution intends to introduce a confession that is hostile to one co-defendant, and the confession: (i) implicates the confessing defendant but is not admissible against the non-confessing defendant; and (ii) cannot be edited to exclude inculpation of the non-confessing defendant.

Question 90

6A Ineffective Assistance of Counsel

Answer 90

The right to counsel encompasses the right to be assisted by a reasonably competent attorney and is presumed.

Question 91

5A Miranda Police Informants

Answer 91

Miranda warnings are not required if the suspect being questioned is not aware that the interrogator is a police officer or working for the police. In fact, the court has specifically held that a confession obtained by an undercover officer posing as a criminal in the defendant’s jail cell in order to elicit details of the crime was admissible in the absence of Miranda warnings.

Question 91

5A Miranda Police Informants

Answer 91

Miranda warnings are not required if the suspect being questioned is not aware that the interrogator is a police officer or working for the police. In fact, the court has specifically held that a confession obtained by an undercover officer posing as a criminal in the defendant’s jail cell in order to elicit details of the crime was admissible in the absence of Miranda warnings.