Crim

Question 1

General Reqs for Conspiracy

Answer 1

-Intentional agreement between two or more persons;

-specific attempt to commit an unlawful act or a lawful act by unlawful means; and

-An overt act in furtherance of the unlawful act (only required for half the states and the MPC)

Question 2

Unilateral Theory of Conspiracy

Answer 2

MPC/Majority - Only one person needs to specifically intend to enter the agreement

Question 3

Minority/Common Law - Bilateral

Answer 3

Two or more ppl gotta specifically intent to enter agreement

Question 4

Overt act

Answer 4

Question 5

Warrantless search

Answer 5

Question 6

Theft Crime: Forgery

Answer 6

Forgery is the:

i) Making;

ii) Of a false writing;

iii) With apparent legal significance; and

iv) With the intent to defraud (i.e., make wrongful use of the forged document).

Making includes creating, altering, or fraudulently inducing another to sign a document when that person is unaware of the significance of the document.

Question 7

Specific Intent Crimes

Answer 7

FIAT

First Degree Murder
Inchoate Offenses
Assault with Intent to Commit Battery
Theft Offenses

Question 8

General Intent crime

Answer 8

General-intent crimes (e.g., battery, rape, kidnapping, and false imprisonment)
* Require the intent to perform an unlawful act
* Intent—purposely, knowingly, recklessly, or negligently

Question 9

Ineffective Assistance of Counsel

Answer 9

In order to reverse a conviction on the grounds of ineffective assistance of counsel, the defendant must prove both

1. there was actual prejudice to the D
2. counsel fell below OBJECTIVE standard

Question 10

Withdrawal as a defense to conspiracy

Answer 10

At CL - Withdrawal is not a defense (and overt act not required)

Federal/majority rule—withdrawal is possible after the agreement and BUT BEFORE the
commission of an overt act, but D must give notice to co-conspirators or give timely
notice to police - b/c the conspiracy does not exist untl the over act is committed

Under the MPC and the minority view - subsequent withdrawal is possible only if the defendant acts voluntarily to “thwart the success” of the conspiracy.

Question 11

Conspiracy at Common Law

Answer 11

1. An agreement;
2. Between two or more persons (bilateral conspiracy);
3. To accomplish an unlawful purpose;
4. With the intent to accomplish that purpose.

Question 12

A contrast b/w conspiracy and the substantial step required for attempt

Answer 12

Contrast attempt: To constitute attempt, the defendant must have taken a substantial step toward commission of the crime. A mere preparatory act is insufficient for attempt.

Question 13

Conspiracy Majority

Answer 13

1. An agreement;
2. Between at least one person (unilateral when only one party actually agrees majority and
   MPC; not recognized under common or federal law)
3. To accomplish an unlawful purpose;
4. With the intent to accomplish that purpose.
5. Overt Act

Question 14

Scope of Conspiracy

Answer 14

A conspirator is liable for conspiracy and the co-conspirators’ substantive crimes
committed in furtherance of the conspiracy (Pinkerton Rule).

*Under the MPC, the minority view, a member of the conspiracy is not criminally liable for such crimes unless that member aids and abets in the commission of the crime

Question 15

Does conspiracy merge?

Answer 15

NO -It is a separate crime

Question 16

Can D escape liability for underlying/substantive crimes even if they are guilty of conspiracy?

Answer 16

Liability for substantive crimes—for this purpose, D may withdraw by giving notice to
his co-conspirators or timely advising legal authorities of the existence of the
conspiracy even though such an action does not thwart the conspiracy

Question 17

Intent Required for Conspiracy

Answer 17

Conspiracy is a specific-intent crime. A conspirator must have the intent to agree and the intent to commit the criminal objective. The intent to agree may be inferred from the conduct of the parties.

That is, even if the UNDERLYING crime is not specific intent…the conspiracy crime is

Question 18

Derivative Use Immunity

Answer 18

Derivative-use immunity protects a witness from the use of the witness’s own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution.

ONLY precludes the prosecution from using the witness’s own testimony, or any evidence derived from the testimony, against the witness does not necessarily preclude later prosecution against them bvased on other evidence.

But does not protect him from its use in a civil suit.

Question 19

Transactional Immunity

Answer 19

Transactional—blanket or total immunity, fully protects a witness from future
prosecution for crimes RELATED to testimony

Question 20

Immunity

Answer 20

The prosecution may compel incriminating testimony (at trial or before a grand jury) if it grants immunity to the individual and the individual must testify. The testimony cannot be used against the individual, directly or indirectly, in a subsequent prosecution.

BUT CAN in CIVIL ACTION!!!

Question 21

Testimony made under grant of immunity….

Answer 21

Testimony under a grant of immunity may not be used by another U.S. jurisdiction to prosecute the defendant.

Thus, a state grant of immunity will preclude admission of the testimony in a federal proceeding

Question 22

Peremptory Challenges

Answer 22

A prosecutor is free to exercise peremptory challenges in any manner he sees fit unless such exercise violates the Equal Protection Clause. The Equal Protection Clause prevents the use of peremptory challenges for racially or gender motivated reasons. Since the prosecutor did not use peremptory challenges for either of these reasons, the judge should overrule the defendant’s objection.

Question 23

Malice Crimes

Answer 23

Common Law Murder and Arson

Question 24

What does malice mean?

Answer 24

-Reckless disregard of a high risk of harm
* Does not require D to act with ill will toward victim

Question 25

General Intent Crimes

Answer 25

General intent crimes require only the intent to perform an act that is unlawful. Examples include false imprisonment and rape.

Question 26

Theft Crimes

Answer 26

Larceny by Trick, Larceny, Forgery, Embezzlement, False Pretenses, RobberY, burglary

All are SPECIFIC INTENT
Honest mistake of fact is a defense

Question 27

Burglary CL

Answer 27

-Breaking and; (only a tiny amount of force required…like opening door).
* Entering;
* Of the dwelling; (could be a separately secured room, but needs intent still))
* Of another;
* At nighttime;
* With the specific intent to commit a felony therein.

Question 28

5th Amendment only protects

Answer 28

Only testimonial evidence is covered by the Fifth Amendment privilege; physical or real evidence is not.

HOWEVER, for ex. while defendant’s handwriting in itself is not testimonial, the defendant’s answer to the question would be, because he would be identifying himself as the person who wrote the note.

Question 29

5th amendment - can a prosecutor in a criminal trial comment on someone’s pleading the 5th/remaining silent

Answer 29

NO

but in a civil trial, this can be commented on

Question 30

Remedy for Police Failure to Knock and Announce

Answer 30

If they had otherwise valid warrant, etc, they should Knock and Announce BUT failure to do so does not trigger Exclusionary Rule.

The remedy for this failure is 1983 case. Not exclusion of the criminal evidence.

Question 31

Larceny

Answer 31

• The Trespassory (non consensual)
• Taking and;
• Carrying away;
• Of the personal property;
• Of another;
• With the specific intent to permanently deprive the owner of the property

Mistake of Fact - is a defense

Weird caveat - the taking of personal property with the intent to return it to the owner only in exchange for a reward is sufficient to constitute an intent to permanently deprive the owner of the property.

Question 32

For specific intent crime, is mistake of fact a defense? at CL

Answer 32

Yes. It is a defense to specific-intent crimes, even if unreasonable. So long as it was honest.

why does this make sense?
Honest mistake serves as a defense to a specific intent crime because such an honest mistake negates the required mens rea.

Question 33

Is Mistake of Fact a defense for general intent or malice crimes

Answer 33

Sometimes. Only if the mistake was reasonable!

Question 34

Imperfect Self-Defense

Answer 34

When you use deadly force but it was not justified. Operates to reduce murder to voluntary manslaughter.

In many states (most), murder may be reduced to voluntary manslaughter when the defendant contends that his use of deadly force was necessary in defense of himself or others, but

(i) the defendant started the altercation or
(ii) the defendant unreasonably (even if honestly) believed in the necessity of using deadly force.

Question 35

When does imperfect self-D usually come up?

Answer 35

When a defendant honestly but unreasonably believes that deadly force is required to prevent death or serious bodily injury.

Question 36

Cruel and Unusual Punishment

Answer 36

he Eighth Amendment to the U.S. Constitution prohibits the federal government from imposing cruel and unusual punishment for federal crimes, or “such punishment as would amount to torture or barbarity, any cruel and degrading punishment not known to the common law, or any fine, penalty, confinement, or treatment so disproportionate to the offense as to shock the moral sense of the community.”

Question 37

Do 3-strikes/recidivism statutes violation Constitution when they impose life sentence?

Answer 37

No

Some jurisdictions have statutes imposing mandatory indeterminate life sentences (e.g., 25 years to life) on defendants who commit three felonies, even if the felonies are non-violent property-related offenses.

These recidivist statutes are not unconstitutional under either the Double Jeopardy Clause of the Fifth Amendment or the Cruel and Unusual Punishment Clause of the Eighth Amendment. Ewing v. California, supra.

Question 38

8a - when Physical Force as cruel and unusual punishment

Answer 38

A prisoner need not show serious injury to recover for a violation of the Eighth Amendment prohibition against cruel and unusual punishment. The inquiry is whether the physical force was applied in a good-faith effort to maintain or restore discipline, rather than applied maliciously and sadistically to cause harm.

Question 39

8a - physical conditions of incarceration

Answer 39

The physical conditions of incarceration amount to cruel and unusual punishment only if the prisoner can show that prison officials had actual knowledge of a substantial risk to the prisoners.

Question 40

Sentence Proportionality

Answer 40

A sentence that is grossly disproportionate to the crime constitutes cruel and unusual punishment. However, a lengthy sentence does not necessarily violate the Eighth Amendment.

Question 41

Right to Counsel - 5a and 6a

Answer 41

Comes up under 5a and 6a

Question 42

6a when does it attach?

Answer 42

Attaches when formal judicial proceedings begin. (e.g., post-arrest initial appearance before a judicial officer, formal charge,
preliminary hearing, indictment, information, or arraignment);

*no right to counsel at postconviction proceedings (e.g., parole, probation)

Answer 43

Under the Sixth Amendment, interrogation constitutes a “critical stage” of prosecution, such that a post-charge interrogation in the absence of counsel violates a defendant’s Sixth Amendment right to counsel unless the defendant has waived such right. Interrogation includes not only formal questioning by the police, but any conduct of the police that is intended to elicit a response from a defendant

Question 44

What are Sixth Amendment Rights?

Answer 44

Right to jury, public trial, confront witnesses against him, cross-examine
witnesses, be present at his own trial, and assistance of counsel for his defense

Question 45

Waiver of 6A rights?

Answer 45

Must be voluntary, knowing, and intelligent;

receiving a Miranda warning
sufficiently apprises a person of his Sixth Amendment rights and the consequences of
waiving those rights (even though Miranda rights arise from the Fifth Amendment)

Question 46

4a Applies to

Answer 46

Arrest, search, and seizure by GOVERNMENT

Question 47

4a Exclusionary Rule

Answer 47

Prevents introduction at a subsequent criminal trial of evidence unlawfully seized. Its a judicially mandated remedy.

• Does not apply to:
  federal habeas corpus review, grand jury proceedings,
  preliminary/bail/sentencing hearings, proceedings to revoke parole, evidence used as
  impeachment evidence against the defendant, or civil proceedings

Question 48

who makes decision RE suppression?

Answer 48

• Suppression decisions made by a judge;

factual findings are reviewed for clear error
while findings of law are reviewed de novo

Question 49

4A Standing

Answer 49

4a Rights are personal and may not be asserted vicariously.

A defendant cannot successfully challenge governmental conduct as a violation of the 4a protection against unreasonable searches and seizures unless the defendant himself has been seized or he has a reasonable expectation of privacy with regard to the place searched or the item seized. Even if the evidence seized is incriminating

Question 50

Stop and frisk as seizure

Answer 50

Temporary detention that constitutes seizure if the officer, by means of
physical force/show of authority, has in some way restrained (physical restraint or an order
to stop) the liberty of a citizen

Question 51

Arrest warrant

Answer 51

An arrest warrant is issued by a detached and neutral magistrate upon a finding of probable cause (i.e., a reasonable basis for believing) that a crime has been committed and that this person was involved in committing the particular crime.

Question 52

Larceny By Trick

Answer 52

Larceny +
* Accomplished by fraud or deceit;
* That results in the conversion of the property of another.

ONLY results in possession (not title)

Question 53

Felony Murder

Answer 53

Unintended and foreseeable killing proximately caused by and during the commission
or attempted commission of an inherently dangerous felony

Question 54

FM: Inherently Dangerous Felonies (MOST COMMON)

Answer 54

BARRK—burglary, arson, robbery, rape, and kidnapping

Question 55

Felony murder does not encompass…

Answer 55

Does not encompass death occurring after flight from the scene of the crime

must be caused BY and DURING

Question 56

In a felony murder, is D liable for their co-felons death?

Answer 56

D is not liable for a co-felon’s death by a victim or police officer

Question 57

Attempt Elements

Answer 57

1. A substantial step toward commission of crime (beyond mere preparation);
   coupled with
2. The specific intent to commit the crime.

Question 58

Is FACTUAL impossibility a defense to attempt?

Answer 58

Oh no, hell no.

BUT, legal impossibility is.

Question 59

Is Abandontment a defense to attempted crime?

Answer 59

Not a defense after completion of actus reus (substantial step or dangerous proximity)

Question 60

Does attempt merge with underlying crime?`

Answer 60

Yes

If the crime is completed, the attempt merges into the completed crime (D may be charged
with both, but may be convicted of only one)

Question 61

Example of an intoxication defense to attempted crime.

Answer 61

A man becomes intoxicated party, grabs a womans arm, pulls her into room, and attempts to have sex with her. She struggles with man and is able to pull away.

At trial, the man testified that at the time of the incident he believed that the woman had consented to sexual intercourse with him.

If jury believes him RE consent, should he be convicted?

NO because although rape is a general intent crime, ATTEMPTED rape requires that D had specific intent to commit rape.

So, if jury believes him that he thought there was consent, then there is no specific intent.

Question 62

Double Jeopardy Protections

Answer 62

5a Double Jeopardy clause provides 3 protections:

i) Protection against a second prosecution for the same offense after acquittal;

ii) Protection against a second prosecution for the same offense after conviction; and

iii) Protection against multiple punishments for the same offense.

Applies to state and federal governments via. 5a/14a.

Does not apply to grand jury.

Question 63

Dual Sovereignty - Double Jeopardy

Answer 63

Under the “Dual Sovereignty” doctrine, prosecution of a defendant by the federal government for a crime arising out of an event does not prevent a state from prosecuting the defendant for a crime arising out of the same event. (Note: Under this doctrine, the reverse is also true.)

Question 64

When a D’s conduct may be prosecuted as two or more crimes, what is “the same offense” under Double Jeopardy?

Answer 64

Apply Blockburger test.
Under this test, each crime must require the proof of an element that the other does not in order for each to be considered as a separate offense.

Question 65

Examples of Blockburger

Answer 65

Example 1: NO Jeopardy. A defendant robs a store and shoots and kills the store clerk.
-D acquitted of premeditated murder. Later charged with robbery.
-No DJ b/c each crime involves proof of an element that other DOES NOT. Allowed.

Example 2. JEOPARDY. A defendant robs a store and shoots and kills the store clerk.
D acquitted of felony murder based on robbery. Then charged with robbery.

-Jeopardy issue b/c robbery does not require proof of any element that was not already required in felony murder. NOT allowed.

Robbery was the lesser included offense.

BUT, the same is not true in also situations. for example would NOT be jeopardy to charge someone with both theft and burglary.

Question 66

Blockburger test - lesser included offense implications

Answer 66

As a consequence of Blockburger, the Double Jeopardy Clause generally bars successive prosecutions for greater and lesser included offenses.

A lesser included offense is one that does not require proof of an element beyond those required by the greater offense.

Question 67

Accomplice Liability

Answer 67

A applies to a person who, with the requisite mens rea, aids or abets a principal prior
to or during the commission of the crime.

mere awareness of crime or being present NOT enough. they must aid and abet or encourage.

Question 68

Accomplice mens rea requirement

Answer 68

Intent that crime be committed

Majority: Intentionally assists and acts for purpose of promoting or facilitating the crime

The accomplice must solicit, aid, agree, encourage or attempt to aid in the planning or commission of the crime with intent.

Question 69

Accomplice v. Principal in 2nd degree

Answer 69

Some states draw a distinction between an accessory before the fact and a principal in the second degree based upon presence at the scene of the crime.

Question 70

When is an accomplice a principal in 2nd degree

Answer 70

An accomplice who is physically or constructively present during the commission of the crime is a principal in the second degree.

constructively present - ex. a getaway driver some distance from the scene is deemed constructively present and principal in the second degree.

Question 71

When is accomplice an accessory before the fact?

Answer 71

an accomplice who is neither physically nor
constructively present during the commission of the crime, but who possesses the
requisite intent

Question 72

What is accomplice responsible for?

Answer 72

Responsible for the crime itself and all other crimes that are the natural and probable
consequences of the accomplice’s conduct

Question 73

Photo Array - is there a right to counsel?

Answer 73

No
There is no right to counsel during an identification through a photo array, regardless of when the photo array is conducted

Question 74

6a Right to Counsel for in-person lineup?

Answer 74

Yes. Right to counsel at in-person post-indictment lineup. NOT pre-indictment.

Question 75

Withdrawal as defense to Accomplice Liability

Answer 75

To legally withdraw (and avoid liability for the substantive crime), the accomplice must
(i) repudiate prior aid,
(ii) do all that is possible to countermand prior assistance, and
(iii) do so before the chain of events is in motion and unstoppable.

DON’t confuse this with withdrawal for inchoate offense. not the same.

Question 76

Arrest Warrant Requirement

Answer 76

Must be
1. issued by detached/neutral magistrate
2. upon finding of probable cause
(PC) and
3. describe with particularity the D and crime;

deficient warrant does not
invalidate arrest as long as there was PC (no warrant required for proper arrest based
on PC)

Question 77

Is warrant required for arrest?

Answer 77

No!

Question 78

When is it proper for arrest to be warrantless?

Answer 78

In a Public Space when:
1. Crime - felony or misdemeanor - committed in presence of arresting party (private individual OR cop)
2. Crime committed outside presence of arresting party:
-If its police must, have probable cause
-If its private individual, they can only arrest if felony was actually committed and they reasonable believe person is guilty)

Question 79

How to challenge the admissibility of identifications (whether photo array or lineups)?

Answer 79

Two-prong test
1. D must prove ID was impermissibly suggestive; and
2. Substantial likelihood of misidentification

HOWEVER, Prosecution may prove that it was nonetheless reliable and admissible (opportunity to view, degree of attention, accuracy of witness’s description, level of certainty, length of time)

*If D meets the test and P cannot prove reliable, remedy = suppression hearing
(usually outside jury’s presence) to determine
admissibility; finding of impermissibly suggestive procedures will result in suppression

Question 80

Do police generally need a warrant to do a search?

Answer 80

Yes.

Question 81

What is an unreasonable search?

Answer 81

Only unreasonable searches and seizures are subject to Fourth Amendment protections. An unreasonable search occurs when the government
(1) invades a place protected by a reasonable expectation of privacy, or
(2) physically intrudes upon a constitutionally protected area (persons, houses, papers, or effects) for the purpose of gathering information

Question 82

Is there a reasonable expectation of privacy of curtilage?

Answer 82

Curtilage = an area immediately surrounding the home. May be protected. Depends on several factors:

1. proximity of area to home
2. whether it is included in enclosure surrounding home
3. nature of use
4. steps take to protect from observation by others

Question 83

Is there a reasonable expectation of privacy of open fields?

Answer 83

No.

Private property that lies outside the curtilage of a home, such as a farmer’s field, is not protected by 4a

Question 84

Is there a reasonable expectation of privacy of
“paper and effects”?

Answer 84

Generally, yes. protected by 4a

BUT, when papers and effects are transferred to a third party, such as checks and deposit slips given by a customer to a bank, a person no longer has a reasonable expectation of privacy in these items.

Similarly, financial statements maintained by a bank are bank records in which the customer has no reasonable expectation of privacy.

Question 85

How are sentencing enhancements determined?

Answer 85

Depends.

Generally only a jury is permitted to find a fact that serves to increase the maximum penalty that can be imposed for a crime.

EXCEPTION: If that fact is a prior conviction of the defendant, then the judge, rather than the jury, may find that such a fact exists.

Question 86

Voluntary Manslaughter

Answer 86

Voluntary manslaughter is homicide committed with malice aforethought, but also with mitigating circumstances.

Mitigating circumstances can be either:
1. Heat of Passion
2. Imperfect Self-Defense

Question 87

What is a killing adequately provided in the heat of passion killing (voluntary manslaughter)?

Answer 87

Adequate provocation is established if
(1) the defendant was actually provoked,
(2) a reasonable person would have been provoked,
(3) there was not enough time to cool off before the killing, and
(4) the defendant did not cool off before the killing

Transferred provocation applies if D misidentified her provoker or accidentally kills the wrong person

Question 88

Miranda Warning general rule

Answer 88

Under Miranda, any incriminating statement obtained as result of custodial interrogation may not be used against suspect at subsequent trial unless police adequately inform subject of Miranda rights.

the “incriminating” bit is more about whether the questions asked might incriminate her.

Question 89

What is custody for Miranda purposes?

Answer 89

Custody for Miranda purposes is either a formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest. Custody is established if a reasonable person under similar circumstances would believe she was not free to leave.

Question 90

What is interrogation for Miranda purposes?

Answer 90

Interrogation is either express questioning by the police or any words or actions that the police know or should know are reasonably likely to elicit an incriminating response.

Question 91

What if police fail to give Miranda?

Answer 91

If the police fail to inform the suspect of her Miranda rights, any incriminating statement obtained as the result of custodial interrogation generally may not be used against the suspect at a subsequent trial.

The statement may be suppressed —even if the defendant intended it to be exculpatory—unless an exception applies.

Question 92

Exceptions to Miranda

Answer 92

1. Public Safety - don’t have to give miranda before questioning if public safety at risk
2. Routine Booking - allows police to ask a suspected drunken driver routine biographical questions and to videotape the driver’s responses without first giving the driver Miranda warnings
3. Undercover police - Miranda warnings are not required if the suspect being questioned is not aware that the interrogator is a police officer.

*but watch out for when its an undercover cop and a person who has already been charged!!! -6a

Question 93

What is malice aforethough/how can it be shown?

Answer 93

Malice—can be shown by any one of the following:

• Intent to kill—conduct that is the legal cause of death + intent to kill
• Intent to do serious bodily injury—intent to do serious bodily injury + unintentional killing
• Reckless indifference to human life—results from reckless indifference to an unjustifiably high risk to human life + unintentional killing (“depraved heart”)
• Intent to commit a felony—proximately caused by and during the commission or attempted commission of an inherently dangerous felony + unintentional killing (felony murder)

Question 94

Causation in Homicide

Answer 94

To prove murder, the prosecution must show that the defendant caused the victim’s death. The prosecution must prove both actual and proximate causation.

Question 95

Actual Causation in homicide

Answer 95

If a victim would not have died “but for” the defendant’s act, then the defendant’s act is the actual cause (i.e., “cause-in-fact”) of the killing. And when a defendant sets in motion forces that lead to the death of the victim, the defendant is the actual cause of the victim’s death.

Question 96

Proximate Cause in Homicide

Answer 96

Proximate cause exists only when the defendant is deemed to be legally responsible for the crime. For the defendant to be legally responsible for the crime, the victim’s death must be foreseeable. That is, the death must be the natural and probable result of the defendant’s conduct (i.e., not too remote or accidental in its occurrence as to be unforeseeable).

what is not foreseeable? act of nature, soo outta the ordinary that would be unjust

*A foreseeable act that accelerates impending death is a legal cause of the death

Question 97

Involuntary Manslaughter

Answer 97

Involuntary manslaughter is an unintentional homicide committed with criminal negligence or recklessness, or during an unlawful act.

*you can apply either on test!
Criminal negligence involves conduct that is gross negligence that puts others at a significant risk of serious harm or death

MPC/some jdxs –>
only require Recklessness for involuntary manslaughter and that person was actually aware of the risk his conduct posed.

reckless - conscious disregard of subt. and unjust. risk

Question 98

what is required for accomplice liability when the principal’s crime only requires negligent or reckless conduct?

Answer 98

In this scenario, a person may be an accomplice to that crime under the majority rule if the person merely acts recklessly or negligently with regard the principal’s commission of the crime, rather than purposefully or intentionally

ex. accomplice to involuntary manslaughter
–think - the core CR of the accomplice should mirror that of the crime (reckelss or criminal negligence)

Question 99

When can statements taken without issuance of Miranda be used?

Answer 99

To comply with the Fifth Amendment privilege against self-incrimination, police must give suspects Miranda warnings before a custodial interrogation.

Statements taken without the issuance of Miranda warnings cannot be used directly in deciding ultimate issues of guilt or innocence.

However, such statements can be used for the limited purpose of impeaching the criminal defendant’s inconsistent testimony if they were voluntary and trustworthy.*

Question 100

Duty to retreat

Answer 100

Under the majority rule, there is no duty to retreat before using deadly force in self-defense. And though a minority of jurisdictions require retreat before using deadly force if it is safe to do so, a person never has a duty to retreat in his/her own home.

Question 101

Self-defense in context of murder

Answer 101

Use of deadly force in self-defense justifies a killing and serves as a defense to murder if the person:

1. actually and reasonably believed that such force was necessary to prevent imminent serious bodily harm or deathand
2. was not the initial aggressor—ie, did not engage in physical force first or intentionally provoke the altercation.

Question 102

When does Double Jeopardy Attach

Answer 102

Double jeopardy protects criminal defendants from undue harassment and expense by forbidding multiple punishments and a second prosecution for the same offense.

This protection attaches once the defendant is in jeopardy of a conviction—ie:

1. when the jury is impaneled and sworn (jury trial)
   or
2. when the judge begins to hear evidence (bench trial).

But if a criminal charge is dismissed before the defendant is put on trial before a trier of fact (judge or jury), then jeopardy does not attach and the prosecution can later prosecute the offense.

Question 103

Robbery

Answer 103

Larceny + Use of Force or threat of force + from victims person or presence

1. Trespassory Taking and carrying away
2. Of property of another
3. From the victim’s person or in presence
4. By use of force or threat of force

5 with intend to permanently deprive

Question 104

Gerstein Hearing

Answer 104

A preliminary hearing to determine whether probable cause exists to hold the defendant (i.e., a Gerstein hearing) generally must be held within 48 hours of the defendant’s arrest. There is no need to hold a preliminary hearing if probable cause has already been determined through a grand jury indictment or an arrest warrant.

Question 105

Use of devices not available to public that can detect lawful activity / kyllo case

Answer 105

Weird q from MC involving device that detects alcohol but not breath test

While not necessarily a winning argument, the Supreme Court held in Kyllo v. US that the use of a device that is not available to the general public (a heat-sensing device) and that is capable of detecting lawful activity can constitute an unlawful search. Here, the device, a passive alcohol sensor, is not generally available to the public and is capable of detecting lawful activity; an adult driver is not prohibited from having consumed any alcohol prior to driving but instead may be punished only for driving while under the influence of alcohol. In addition, the court noted that the heat-sensing device gave the officer information that he could not have gained without entering the house

Question 106

Exculpatory evidence in grand jury

Answer 106

The prosecutor has no legal obligation to present evidence exculpating the defendant to the grand jury. Thus, a grand-jury indictment cannot be dismissed for the prosecutor’s failure to present exculpatory evidence.

Question 107

Insanity Defense - M’Naghyten

Answer 107

Under the M’Naghten test, the defendant is not guilty if, because of a defect of reason due to a mental disease,
the defendant did not know at the time either:

the nature and quality of the act or
the wrongfulness of the act

Question 108

Fifth amendment - witness pleading the 5th

Answer 108

The Fifth Amendment privilege against self-incrimination allows a witness to refuse to testify when:

the government attempts to compel the witness to testify (eg, by issuing a subpoena) and

the witness reasonably believes that testimony may be self-incriminating (ie, could be used, or lead to other evidence that might be used, against the witness in a criminal prosecution).

Question 109

Can govt compel production of diaries?

Answer 109

Generally, the government may not compel production of a diary. The contents of a diary are similar to oral testimony, and as such are considered testimonial in nature

Question 110

When is the act of producing a document testimonial and privileged under 5A?

Answer 110

For example, the compelled act of producing a document is privileged if that act would prove that:

1. the document exists
2. the suspect possesses the document or
3. the document is authentic (ie, was created or written by the suspect).

Its the act of producing that can be seen as testimonial evidence.

the contents itself are not necessarily protected tho - if seized as evidence durin arrest or something.

Question 111

Brady Rule

Answer 111

While, under the Brady rule, a prosecutor has an affirmative duty to disclose to the defendant any material evidence favorable to the defendant, nondisclosure of such evidence does not violate the defendant’s due process rights unless the failure to disclose causes prejudice against the defendant (i.e., that there is a reasonable probability that the defendant’s conviction or sentence would have been different had the suppressed evidence been disclosed to the defendant)

Question 112

Battery intent

Answer 112

Battery is a general-intent crime that includes not only intentional conduct but also criminal negligence. Here, the defendant’s practice swing caused a serious head injury to a team member

Question 113

Police automobile checkpoints

Answer 113

Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles.

A roadblock to perform sobriety checks has been upheld, while a similar roadblock to perform drug checks has not.

Question 114

What crimes merge into robbery // are lesser included offense?

Answer 114

Larceny, assault, and battery all merge into robbery or attempted robbery as lesser-included offenses.

double jeopardy prevents conviction of this underlying lesser-included offense

Question 115

Conspiracy

Answer 115

​​​​​​​Conspiracy requires proof that (1) the defendant entered an agreement with the specific intent to commit a crime and (2) an overt act was committed in furtherance of that agreement.

Question 116

Battery

Answer 116

Battery is the unlawful application of force to another person that results in bodily harm to that person or constitutes an offensive touching. Battery is a general intent crime, so the contact need not be intentionally inflicted.

Criminal negligence—i.e., a gross deviation from the level of care a reasonable person would use under similar circumstances—is enough to support a battery conviction. And the force can be directly or indirectly applied by a third party acting under the defendant’s direction or by an object controlled by the defendant.

Question 117

Mistake of Fact as a defense

Answer 117

only available if it negates a requisite intent element for the crime

Question 118

Entrapment

Answer 118

A defense if law enforcement induced D to commit crime

1. Criminal design/idea originated with law enforcement
2. d was not otherwise predisposed to commit the crime

Question 119

Vicarious liability for strict liability crimes

Answer 119

Courts often impose vicarious liability for strict-liability crimes. Although imprisonment for a faultless crime may have constitutional due process implications, vicarious liability may be properly applied to strict-liability regulatory crimes when the punishment is limited to fine

Question 120

a note about assistnace of counsel

Answer 120

defendant has the right to the assistance of counsel at any trial that results in a sentence of incarceration, even when that sentence is suspended.

Question 121

when a bystander dies during a FM but its not the felon who actually killed them

Answer 121

Most states apply the agency theory when a bystander is killed by a police officer or due to resistance by the victim of the felony. Under this theory, the felon will not be liable for the death of a bystander caused by a felony victim or police officer because neither person is the felon’s agen

Question 122

Use immunity

Answer 122

Under the Fifth Amendment Privilege Against Self-Incrimination, a grant of use immunity by a state or by the federal government prevents the use of testimony given under that grant by another U.S. jurisdiction in prosecuting the witness.

Question 123

CL Murder

Answer 123

ommon-law murder is the (i) unlawful (i.e., without a legal excuse) (ii) killing (iii) of another human being (iv) committed with malice aforethought. “Malice aforethought” includes the intent to kill, the intent to inflict serious bodily injury, reckless indifference to an unjustifiably high risk to human life (i.e., depraved-heart murder), or the intent to commit certain felonies (i.e., felony murder)

Question 124

Double jeopardy - attempt and conspiracy

Answer 124

An attempted offense and the conspiracy to commit that offense are not the same offense for double-jeopardy purposes because each requires proof of different elements.