Crim

Question 1

If a D was convicted after a trial in which unlawfully obtained evidence was used against her, will her conviction be overturned?

Answer 1

Yes, unless the prosecution can show that the admission of the unlawfully obtained evidence was harmless beyond a reasonable doubt.

Question 2

To conduct a frisk of a person stopped for investigative purposes without a warrant, the police must have:

Answer 2

PO may frisk only if he has reason to believe suspect is armed and dangerous, to search for weapons. (Terry stop & frisk - the constitutionality of the frisk is separate from the constitutionality of the stop).

Question 3

Can a passenger in an automobile that was unlawfully stopped raise the unlawful stop in an attempt to suppress admission of evidence found on the passenger?

Answer 3

Yes, because the stop was a seizure of the passenger as well as the driver.

Question 4

When can a police officer make a warrantless arrest in public places?

Answer 4

For misdemeanors, when the misdemeanor is committed in PO’s presence.

For felonies, when PO has probable cause to believe that felony has been committed and that the person committed it.

Question 5

When can a police officer stop a person without a warrant?

Answer 5

Investigatory stops - PO can briefly detain a suspect for investigatory purposes if he has reasonable suspicion of criminal activity based on articulable facts.

Question 6

When can a police officer stop an automobile?

Answer 6

Without reasonable suspicion, only if the police officer has a neutral, articulable basis to investigate a problem closely related to automobiles and their mobility.

PO can stop a car if he has probable cause (or reasonable suspicion) to believe that a traffic law has been broken.

If this is a valid stop - PO may:

• • Order passengers out of the car
• • search passengers & passenger compartment ONLY IF PO reasonably believes WEAPONS may be present
• • search any open containers that could reasonably contain evidence supporting the reasonable suspicion for the stop

If there is an arrest –> can search incident to arrest
If there is probable cause that car contains evidence of another crime –> can search entire car (automobile exception)

Pretextual stops are NOT unconstitutional - It does not matter that the PO’s motive for the stop was to investigate something other than the traffic violation, as long as the original probable cause exists

Question 7

Fruit of the poisonous tree doctrine

Answer 7

Exclusionary rule - All illegally obtained evidence (the “tree”) AND all evidence obtained or derived from exploitation of that evidence (the “fruit”) must be excluded at evidence. (With exceptions)

Evidence will not be suppressed if the police acted in good faith in relying on the warrant.

**Does NOT apply to grand jury proceedings!!!

Question 8

Plain view exception to the warrant requirement

Answer 8

Police may seize evidence in plain view without a warrant if:

1) police must be legitimately on the premises where item is found
2) item must be evidence or contraband
3) item must be in plain view
4) PO have probable cause to believe (immediately apparent) that the item is evidence of a crime or contraband

**NOT required that the item be inadvertently discovered.

Question 9

When does a police officer have probable cause to arrest?

Answer 9

A police officer has knowledge of reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law.

Question 10

After a valid stop of an automobile, can a police officer search the automobile?

Answer 10

After a valid stop, the police officer cannot search the vehicle unless it meets one of the exceptions to the warrant requirement.

Ex.

• Consent
• Search incident to arrest
• The automobile exception - Requires probable cause

Question 11

If police unlawfully stop a car filled with multiple passengers and all are subsequently arrested and charged with crimes, who has standing to raise the unlawful stop in an attempt to suppress admission of evidence found in the car?

Answer 11

Any occupant of the vehicle may raise a claim to suppress evidence if it was derived from an unlawful stop. A stop is a seizure of a person, and when a police officer stops a car, they stop and seize the driver and all the passengers.

Question 12

If two or more ppl are necessary for the commission of the substantive offense, can they be charged with conspiracy?

Answer 12

No, unless more parties agree than are necessary for the crime (Wharton Rule). HOWEVER, if the criminal statute covering the offense punishes only ONE of the conspirators, then the Wharton rule does not apply, and all may be convicted of conspiracy.

Question 13

What is the required intent to convict a D of an attempt crime?

Answer 13

1) Specific Intent to commit a crime - Two components:
i) Intent to commit the acts or cause the result of the crime
ii) Intent necessary for the target crime
Ex. intent to commit robbery, and the intent to permanently deprive person of the property

2) An overt act in furtherance of the crime
i) MPC’s substantial step test - 1) act is a substantial step to complete the crime (beyond mere preparation), and 2) the act is of strong corroboration of D’s criminal purpose
ii) Traditionally: Proximity test - whether D’s act has come dangerously close to success

Question 14

Does a D who withdraws from solicitation have a defense to the charge of solicitation?

Answer 14

General rule is that withdrawal or renunciation is NOT a defense to the charge of solicitation; but the MPC does recognize the defense provided that the D prevents the commission of the solicited crime.

Question 15

2 requirements necessary for a conspirator to be liable for crimes committed by a co-conspirator:

Answer 15

Crimes were:

1) committed in furtherance of the conspiracy’s objectives;
2) foreseeable

Question 16

Can a defendant charged with a completed crime be found guilty of the attempt to commit the crime?

Answer 16

Yes, either a completed crime OR an attempt to commit the crime.

But a D charged with an attempted crime cannot be convicted for the completed crime.

Question 17

Can the police execute an arrest warrant in a third party’s home?

Answer 17

No - Absent exigent circumstances, the police may NOT search for the subject of the arrest warrant in the home of a third party without first obtaining a separate search warrant for the home. This is an unconstitutional search.

If the police do execute an arrest warrant at the home of a third party without obtaining a search warrant for the home, the arrest is still valid, but evidence of any crime found in the home cannot be used against the owner of the home because it is the fruit of an unconstitutional search.

Question 18

When does someone have standing to challenge a search or seizure?

Answer 18

Only if the person has a reasonable expectation of privacy with respect to the place searched or item seized - a search or seizure that violates of her OWN expectation of privacy.
Ex. overnight guest of the owner of the place searched has a reasonable expectation of privacy
Ex. the passenger of a car during an unlawful stop can challenge the stop (she was seized)

Question 19

If police officer has a search warrant to search a place, can the police search anyone on the premises?

Answer 19

No - can only search the ppl named specifically in the search warrant.

If the police have probable cause to arrest someone discovered on the premises, then the police can search because the search would be incident to a lawful arrest. However, they cannot search someone prior to an arrest and without probable cause.

Question 20

Elements of Larceny

Answer 20

1) The taking and carrying away
- - slightest movement of property will be enough
2) of the tangible personal property of another
3) who has a superior possessory interest than D
4) by trespass (= without consent of person in possession)
5) with the intent to permanently deprive him of possession

*If person in possession consents b/c he was induced by D’s misrepresentation - this is larceny by trick
It’s not trespassory b/c victim gives consent, but only b/c of D’s misrepresentation/deceit

Question 21

Larceny by trick vs. False Pretenses

Answer 21

Focus is on what the VICTIM intended to convey to the D:

• If a victim intends to convey only possession of the property to the D - larceny by trick.
• If the victim intends to convey title to the D - false pretenses.

Ex. student’s friend goes to banker and pretends that he is collecting money for the student and will give the money to the student. If banker intended to convey possession of the money to the friend so that he could give the money to the student/beneficiary, then the banker did not intend to convey title. Because the friend did not obtain title by means of his misrepresentation but simply obtained possession, this is larceny by trick, not false pretenses.

Question 22

Voluntary Intoxication defense

Answer 22

Only a defense to specific intent crimes, but not general intent or recklessness crimes

Voluntary intoxication CAN be used as a defense to attempt - attempt is a specific intent crime
Ex. attempted murder - he was so drunk, he couldn’t form the specific intent to kill

EXCEPTION: if you form the intent to commit a crime, and THEN become intoxicated (liquid courage), cannot use intoxication as a defense (does not negate the specific intent required)

Question 23

Withdrawal/renunciation from conspiracy

Answer 23

As long as the conspirator effectively communicates his withdrawal to his co-conspirators, this is a defense to the underlying crimes committed. He will still be liable for conspiracy.

Question 24

What do you need to detain a person for investigative purposes? To frisk this person?

Answer 24

Terry stop - Reasonable suspicion of criminal activity
- Can be from a tip, but it must be reliable - needs to give more detail, corroborating information, or not be anonymous, etc.

PO can frisk if he reasonably believes the detainee to be armed:

• can pat down outer clothing
• seize any item that police believes to be contraband based on its “plain feel” only. Cannot physically manipulate the item

Question 25

What do you need for lawful search of students by school officials?

Answer 25

Reasonable grounds are sufficient to justify searches by school officials (not warrants or probable cause)

Question 26

When do Miranda rights apply?

Answer 26

Miranda rights only apply to custodial interrogation - warnings are required only before a) D is in custody and b) D is being interrogated

• -No requirement that the police inform D of the possible charges
• -Does NOT apply to spontaneous statements made when D is not in custodial interrogation - these would be admissible
• -Statements made within a short period of time of the Miranda warnings, likely that police would require a second set of warnings
• -request for counsel + a willingness to speak without counsel is a valid waiver of the right to have counsel present during an interrogation

Question 27

Right to counsel in identification lineup

Answer 27

Before a post-charge lineup, a D has right to counsel. This right attaches as soon as accused is in front of identification witnesses.

Question 28

Can a co-conspirator be convicted for crimes to which the principals have not been convicted?

Answer 28

YES - defense is only effective against conspiracy if all the other defendants have been acquitted.

Question 29

Insanity defenses

Answer 29

M’Naghten Rule - D does not know right from wrong or does not understand his actions

Irresistible Impulse Test - D is incapable of resisting his impulse

MPC Test - combination of both

Durham (New Hampshire) - but for mental illness, D would not have done the fact

Question 30

Elements of Accomplice Liability

Answer 30

Requires:

1) Dual intent:
a) Intent to assist the principal
b) Intent that crime be committed (by the principal)
* *Mere knowledge that a crime might result from sale of ordinary goods at ordinary prices is not sufficient to form intent - but procuring an illegal item or selling at higher price might be enough for intent

2) Aids or encourages principal to commit the illegal conduct

Liability: accomplices ARE liable for the principal crime

Question 31

Involuntary manslaughter

Answer 31

Unintentional killing from negligent misconduct

Question 32

What can the police search incident to arrest?

Answer 32

• police may search the person & his wingspan - where he might reach to obtain weapons or destroy evidence
• ONLY IF they believe dangerous accomplices may be present, then police may also make protective sweep of area

Question 33

Standard for upholding state action under police powers of the state

Answer 33

If legislation is facially neutral, only rational basis

Question 34

What is an unlawful application of force to a person?

What state of mind required?

Answer 34

Battery
**Only recklessness - will be guilty even if he did not intend to cause injury to the person, but recklessly caused injury

Question 35

If parties agree to commit some act and are unaware that it is illegal, can they still be convicted of conspiracy?

Answer 35

Yes - as long as they intended to enter into an agreement and intended to commit the act that constituted the crime

Question 36

Can a police officer ask questions to drivers who are stopped for a traffic violation without Miranda warnings?

Answer 36

Yes - they are not in custody - so driver’s statements are not tainted and can provide probable cause for a search
– automobile exception - if police officers have probable cause that the car contains contraband, or instrumentalities/evidence of a crime, they can search the vehicle, including belongings

Question 37

If D stole from a victim because he believed the victim stole it from him before, if he guilty of robbery?

Answer 37

No - robbery requires intent to permanently deprive victim of her property.
– Intent to recover property that D believes is his would not be sufficient intent

Question 38

Is an overt act required for conspiracy?

Answer 38

Most states - yes

common law - no overt act is necessary

Question 39

For double jeopardy to apply, how do you know if two crimes are the same offense?

Answer 39

They do not constitute the same offense if EACH crime requires proof of an additional element that the other crime does not require

Question 40

Can a D be separately tried for a lesser offense and a greater offense?

Answer 40

No - a lesser offense consists entirely of some, but not all, elements of the greater crime, so it is the “same offense” - jeopardy attaches at the start of the trial

a) Attachment of jeopardy to the greater offense bars retrial for lesser offenses

b) Attachment of jeopardy to the lesser offense USUALLY bars retrial for the greater offense; EXCEPT:
- if all the elements for the greater offense had not yet occurred at the time of trial for the lesser offense, then the D can later be tried for the greater offense
- -> ex. if the victim later dies

Question 41

If one breaks and enters into a dwelling, and then later forms intent to commit a felony, can he be convicted of burglary?

Answer 41

No - intent to commit a felony must exist at the time of entry

– Further, if D broke in intending to do something he thought is a felony, but it is not a felony, D cannot be convicted for burglary

Question 42

Does opening an unlocked closed door constitute breaking in for purposes of burglary?

Answer 42

Yes - even pushing a door that is partially open

minimal force is sufficient

Question 43

For purposes of burglary, when is a structure considered a dwelling?

Answer 43

• If it is used regularly for sleeping (includes hotel rooms)
• remains a dwelling even if the victim uses another part of the building for other purposes, such as conducting a business – the entire building is a dwelling

Question 44

If a creditor who is owed money by debtor takes debtor’s property without his permission, is this larceny?

Answer 44

No - if a creditor honestly thought he was entitled to take property as security for payment of some debt, then he lacks intent for larceny

• • taking property with the intent to hold it as security for a legitimate debt is not larceny
• • lacks the intent to permanently deprive the debtor of his property

Question 45

If you take property from someone who stole it, can this still be larceny (stealing from a thief)?

Answer 45

Yes - larceny can be committed against a thief.
– All that is necessary is for D to take property from someone who has a possessory interest superior to that of D (thief has superior possessory interest in the property even though he stole it)

Question 46

When will a D’s confession be considered “not voluntary”? What are the consequences of an involuntary confession?

Answer 46

• Look at totality of the circumstances to determine if confession was voluntary
• • look at duration & manner of police interrogation
• • was confession a result of actual coercion?

Under DP Clause, confessions must be voluntary to be admissible
– If confession is involuntary, D can invoke exclusionary rule to exclude both the confession and any “fruits of the poisonous tree” (e.g., any evidence found as a result of this confession)

– Harmless error test applies (after trial) - a conviction will not necessarily be overturned if tort can show that there was overwhelming evidence of guilt

Question 47

If a confession was obtained in violation of D’s 5th A. Miranda rights, is confession admissible?
Are any “fruit of the poisonous tree” derived from this unlawful interrogation admissible?

Answer 47

• D can exclude confession - but it can be used to impeach D’s testimony if he takes the stand at trial
  (Cf. an involuntary confession - inadmissible for ANY purpose)

If police fail to give Miranda warnings and during interrogation, D gives information that leads to finding nontestimonial evidence -

• If failure to give Miranda Warnings was purposeful- evidence will be suppressed.
• But if the failure was NOT purposeful, then evidence probably will NOT be suppressed

Question 48

For Miranda to apply, interrogation must be conducted by….

Answer 48

someone known to be a police officer

– does NOT apply if D is talking to an undercover cop or accomplice in a jail cell

Question 49

If the police set up a sting operation to catch a D for receipt of stolen goods, the goods must still be “stolen” at the time it is received by D. When do such goods lose “stolen” status?

Answer 49

• once stolen property is recovered by the owner OR by the police on owner’s behalf (even if owner consents to using property for the sting operation)
• MUST get permission of the rightful owner to use it in the sting operation - otherwise it retains its status as stolen property

Question 50

6th Amendment right to counsel - when is it violated?

Answer 50

6th A is violated when:

1) D has been charged (and other critical stages of the proceeding)
2) D has NOT affirmatively waived his 6th A rights (silence is not a waiver; he does not have to request counsel. Cf. 5th A. right to counsel)
3) Police deliberately elicit an incriminating statement from a D without D’s counsel present
- - Includes any conduct by the police that is intended to elicit a response
- - Interrogation/conversation does not have to be with a police officer – as long as police created a situation that is likely to induce the D to make an incriminating statement

Ex. When police arrange to record conversations btwn an indicted D and his co-D – this is prohibited b/c it is likely to elicit an incriminating statement without D’s counsel present

Ex. Violated when an undisclosed, paid govt informant is placed in D’s cell, after D has been indicted, and deliberately elicits incriminating statements from the D.

Question 51

Causation in criminal cases - what must prosecution show?

Answer 51

D’s act must be the proximate cause of the victim’s death

• • but-for test
• • an intervening act will shield D from liability if it is a mere coincidence or unforeseeable - then the intervening act is the actual, proximate cause of victim’s death

Question 52

How do you determine if a situation is legal or factual impossibility?

Answer 52

There will be a situation where D can’t be convicted of the actual crime b/c something went wrong - D instead charged with attempt.

Ask: If the D were able to complete all of the acts that he intended to do, and if all the attendant circumstances had been as the defendant believed them to be, would the defendant have committed a crime?
– If yes – factual impossibility – NOT a defense to attempt

Legal impossibility – where the D intends to do an act that would not have been a crime
– This is a defense to attempt

Question 53

If an undisclosed, undercover cop or informant is placed in D’s cell, after D has been indicted, and deliberately elicits incriminating statements from the D, does this violate any of D’s constitutional rights?

Answer 53

This would be a violation of D’s 6th A. right to have counsel present (formal charges have been filed, so proceedings have begun) - doesn’t matter that the PO is undercover
**Would NOT be a violation if the interrogation was about a different crime

• *This would NOT be a violation of 5th Amendment Right b/c D does not know that he is being interrogated by a police officer
• • Miranda applies only to interrogation by police - does not apply where interrogation is by an informant who the D does not know is working for the police

Question 54

If either 6th A. or 5t A. right to counsel present is violated when D confesses, is the statement admissible?

Answer 54

Not admissible in the prosecution’s case-in-chief

BUT it IS admissible to impeach D’s contrary trial testimony

Question 55

In order for a D’s statements from a custodial interrogation to be admissible, what must happen?

Answer 55

• Miranda warnings given to D before interrogation

- D’s valid waiver of his Miranda rights

Question 56

Test for whether a D is in “custody” and what is an “interrogation” for purposes of the 5th Amendment -

Answer 56

Custody: **An objective test - 2 steps:
1) whether a reasonable person would feel free to terminate interrogation and leave (“freedom of movement”)
2) whether this environment presents the same inherently coercive pressures as the type of station-house questioning in Miranda
Ex. normal traffic stops (not placed under arrest) are generally not custodial

Interrogation:

• • Any conduct that the police should knew is likely to elicit an incriminating response
• • Does NOT apply to any spontaneous statements not made in response to questioning - BUT police officers must give Miranda warnings before asking follow-up questions

Suspect must be read his Miranda rights before any “custodial interrogation”

Question 57

If police obtain a confession from D without giving him Miranda warnings first, and then give the D Miranda warnings, and obtain a subsequent confession, is this subsequent confession admissible?

Answer 57

Inadmissible if the “question first, warn later” nature of questioning was intentional – facts indicate that police used this scheme to get around Miranda warnings

But will be admissible if this seemed unplanned

Question 58

When is mistake of fact a defense?

Answer 58

Mistake must be with respect to a critical fact in an element of the crime - mistake must show that D did not have the required state of mind for the crime

• Specific intent crimes - ANY mistake is a defense
• Recklessness, malice, general intent, knowingly crimes - mistake must be reasonable
• strict liability - mistake is NO defense

Ex. A is hunting and shoots at what he thought was a deer, but kills B. A’s mistake of fact shows that he did not have state of mind required for murder.

Question 59

When a statute requires “knowingly”

Answer 59

The D knows, believes, or is substantially certain that the fact exists

Question 60

Elements of burglary

Answer 60

1) the breaking
- - gaining entry by fraud = constructive breaking in
2) and entering
3) of dwelling house of another
4) at night
5) with intent to commit felony OR any degree of larceny
- - Low $ amt would normally be a misdemeanor larceny - but still satisfies element for burglary
- - so even if the D just intended to steal something worth $10, he is still guilty of burglary!

• • Burglary does NOT merge with the crime that he committed inside that dwelling
    i. e., D can be convicted of BOTH burglary + larceny, or burglary + robbery, etc.

Question 61

Elements of robbery

Answer 61

1) taking and carrying away (any slight movement)
2) of personal property of another
3) by force or intimidation (any threat)
4) from the victim’s person or presence
- - presence element is satisfied if the victim is in the vicinity when the property was taken
5) with intent to permanently deprive

**Robbery is the aggravated form of larceny (includes force or intimidation)

Question 62

Malice crimes - specific rules

Answer 62

1) mental state of either intent or extremely reckless behavior
2) Mistake of fact defense - if D made a mistake with respect to a critical fact in def of crime, the mistake must be reasonable
3) voluntary intoxication is NOT a defense to malice crimes

Question 63

Embezzlement - 2 common fact patterns

Answer 63

• Theft from employer by a high level employee with control over the property for a long amt of time
• Theft buy a person in position of trust (e.g., attorney, accountant, bank manager)

Question 64

When theft is by an employee from employer, how do you know if it is larceny or embezzlement?

Answer 64

High level employee with control over the property for a long amt of time = embezzlement

Low level employee with control over property with limited period of time = larceny

Question 65

Specific intent crimes - specific rules

Answer 65

a) Must prove actual intent – recklessness or extreme indifference is not enough
b) If D made a mistake with respect to a fact in def of crime, and because of mistake, he didn’t have the required intent, this is a defense even if the mistake was unreasonable
c) Voluntary intoxication is a defense to a specific intent crime – must have been so drunk that she didn’t know what she was doing

Question 66

Can illegally obtained evidence be used in a grand jury proceeding?

Answer 66

YES - exclusionary rule does NOT apply
Grand jury may consider ANY evidence available to it in determining whether probable cause exists to return an indictment

Question 67

Open fields doctrine

Answer 67

Areas outside the “curtilage” (dwelling house and outbuildings) are subject to police search - these areas are held out to the public and are NOT protected by the 4th A

Question 68

Can a valid arrest warrant be used to arrest the suspect in someone else’s home?

Answer 68

No - you need arrest warrant to arrest person in his OWN home - cannot execute an arrest warrant in someone else’s home

To search someone else’s home, you need a search warrant - UNLESS exception applies:

a) consent
b) exigent circumstances

Question 69

Automobile exception to warrant requirement

Answer 69

When the police have probable cause to believe that the vehicle contains evidence of a crime - they can search entire car, including trunk, occupants, and their belongings – that may contain the object of their search

– if they find a container and have reasonable grounds to believe container contains evidence they are looking for, they can search the container

Question 70

What can police search incident to an arrest of a driver of a car?

Answer 70

When police make valid arrest of driver of a car, they can search the interior of the car if at the time of search:

1) the arrestee is still unsecured; or
2) the police reasonably believe that the car contains evidence of the crime for which driver was arrested

Once arrested driver is removed from the car (secured in cop car), then police can only search if they have reason to believe that evidence related to the arrest is in the car

CANNOT search trunk – searching trunk must fall under some other exception to warrant requirement - e.g., automobile exception, consent

Question 71

Who has the burden of proof in a trial?

Answer 71

a) State must prove each element of crime charged beyond a reasonable doubt
– everything in definition of the crime

b) If the defense is that one of the elements of the crime has not been established, then D only has to raise a reasonable doubt
- - because state has to prove each element beyond a reasonable doubt – there is no burden on D

– For all other defenses – a state CAN require a D to establish defense by a preponderance of the evidence

Question 72

When does jeopardy attach at the first proceeding?

Answer 72

1) In jury trial – attaches when jury is sworn

2) In bench trial – attaches when first witness on issue of guilt is sworn

Question 73

If jeopardy has attached, what exceptions will allow prosecutor to retry D anyway?

Answer 73

i) If first trial ended in a hung jury
ii) If ∆ was convicted, appeals, and appeal is granted
iii) Mistrial for manifest necessity - First trial ended in mistrial which did not result from prosecutor’s misconduct

**If trial ends in an acquittal of the D, can NEVER retry the D!

Question 74

When does a criminal D have a right to a jury trial?

How many jurors?

Answer 74

D has right to jury trial in all serious criminal cases, but not in petty criminal cases
– serious criminal offense = where max possible sentence under the criminal statute is over 6mo

State is allowed to use a 6 person jury - But if so, must be unanimous

Question 75

Right to counsel for indigent defendants:

Answer 75

a) In all felony cases
b) In all misdemeanor cases in which a jail sentence is actually in fact imposed
- - Means that if ∆ requests counsel before the trial, judge is allowed to deny – but if judge denies, and D is found guilty judge is not allowed to impose a jail sentence. If judge grants the ∆ counsel, then he will be allowed to impose a jail sentence

Question 76

Involuntary manslaughter

Answer 76

Either:
1) death caused by criminal negligence
– D failed to be aware of (substantial knowledge of) the substantial and unjustifiable risk of death
Ex. believing a real gun is loaded = criminal negligence

2) death caused while committing an unlawful activity

Question 77

Receipt of stolen property: Elements

Answer 77

1) D received stolen property & had control over it
- - property must have stolen status at the time D received it
2) D knew that it was stolen
3) D intended to permanently deprive owner of it
* *There must be concurrence of all 3 at the time of receipt

Question 78

What is the scope of 5th amendment protection against self-incrimination?

Answer 78

• Only testimonial/communicative evidence
• Person is only protected against being *compelled to communicate information

NOT within scope:

• physical evidence (ex. handwriting sample)
• documents - PO can take pursuant to a valid warrant
• disclosure of past communications

Question 79

Valid Search Warrant - Requirements

Answer 79

Search warrant is valid if:

1) the affidavit for the warrant is sufficiently detailed to allow magistrate to determine probable cause
- - affidavit must sets forth underlying circumstances - based on totality of the circumstances
- - Informant’s reliability, credibility, and basis of knowledge

2) warrant describes specifically the place to be searched or things to be seized - otherwise defective on its face

Question 80

Is abandonment a defense to attempted crime?

Answer 80

Common law: No

But allowed under MPC as defense to attempt if:

• • abandonment was entirely voluntary (not due to difficulty in completing the crime or increased risk of being caught)
• • abandonment was complete (not just a decision to postpone)

Question 81

Is impossibility a defense to attempt?

Answer 81

Factual impossibility: NO - if D were to complete all of the acts that he intended, and D would’ve committed a crime, then it is not a defense - D liable for attempt.

Legal impossibility: YES - i.e., D thinks what he’s doing is illegal, but it’s not
– if D were to complete all of the acts that he intended, but it would not have been a crime, then this is a valid defense to attempt.

Question 82

If D1 confesses and this implicates D2, can this be admitted into evidence?

Answer 82

No - b/c this violates D2’s right to confront adverse witnesses.

EXCEPTIONS: D1’s confession may be admitted if:

1) all portions relating to D2 can be eliminated (no indication of D2)
2) D1 (who confessed) takes the stand so he can be cross-examined
3) If D2 previously confessed, but now is denying guilt and claiming that he was coerced into confessing - then D1’s confession is admitted ONLY to rebut D2’s claim of coercion, and jury is instructed to limit its consideration of D1’s confession

Question 83

Continuing trespass doctrine

Answer 83

Fact pattern: D takes at first, with no intent to permanently deprive owner of the property, but then later forms this intent
Issue: There is no concurrence of the actus reus and the intent

Solution: Continuing trespass doctrine
- The initial taking/trespass will “continue” until D forms the intent to steal, but ONLY IF the initial taking was trespassory (wrongful in some way)
Ex. borrowing without permission but D planned to return it later

• If D had NO wrongful state of mind at the time of taking, and then later forms intent to steal, then continuing trespass CANNOT apply - no larceny.
  Ex. owner gave D permission to borrow something, D planned to return - D later decides to steal it

Question 84

If PO have a warrant to search the premises, can they search the people on the premises?

Answer 84

NO - can only search the ppl named in the warrant

EXCEPT:

1) they have probable cause to arrest this person - then they search incident to arrest (search comes after arrest)
2) they have probable cause to believe this person has the named objects in the warrant on her person

Question 85

Under Double Jeopardy, can you retry a defendant after his conviction has been overturned on appeal on procedural grounds?

Answer 85

Yes, can retry D - subject to this limitation:
Cannot retry a D for any offense MORE serious than the crime she was convicted for at the first trial

Ex. If she was on trial for murder in Trial 1, but was convicted only for manslaughter, she cannot be tried for murder in Trial 2 (but can be for manslaughter)

Question 86

Requirements for entrapment

Answer 86

D must show:

1) criminal design originated with law enforcement officers
2) D was not predisposed to commit the crime prior to this contact
- - merely providing the D with an opportunity to commit the crime is NOT entrapment