Crim and Crim Pro

Question 1

what constitutes an unreasonable checkpoint stop

Answer 1

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.

Additionally, absent reasonable suspicion, police extension of a permissible traffic stop in order to conduct a dog sniff violates the Fourth Amendment’s protection against unreasonable seizures.

Question 2

Canine search constitutional?

Answer 2

the use of a trained dog to sniff for the presence of drugs does not violate the reasonable expectation of privacy present during a valid stop.

Thus, a canine search may be performed without probable cause, provided the stop itself meets other constitutional requirements.

Question 3

What is a custodial interrogation

Answer 3

• in custody – (1) placed under formal arrest (as seen here) or (2) the suspect’s freedom of movement is restrained to such a degree associated with formal arrest and
• subjected to interrogation – questions, words, or actions directed at a suspect that police know or should know are likely to elicit an incriminating response.

Question 4

Who bears the burden to show the waiver of Miranda rights

Answer 4

The burden is on the government to demonstrate by a preponderance of the evidence that a suspect’s waiver of his Miranda rights was made knowingly and voluntarily. A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.

There can be no effective waiver until the Miranda warnings are properly given.

Question 5

How does the 6th amendment right to counsel apply

Answer 5

Once the Sixth Amendment right to counsel attaches, statements that a defendant makes to a police informant are inadmissible when the police intentionally create a situation likely to induce the defendant into making incriminating statements without the assistance of counsel.

Under the Sixth Amendment offense-specific standard, the requirement for counsel to be present applies only to interrogations about the offense charged.

The Sixth Amendment right to counsel does not apply to any pre-indictment eyewitness identification.

Question 6

Parties to a crime

Answer 6

Question 7

Attempt

Answer 7

Question 8

Comparison of property offenses

Answer 8

The amount of embezzlement is measured by the value of the property

Question 9

Hierarchy of criminal homicide

Answer 9

Question 10

Incholate Crimes

Answer 10

Question 11

Admissibility of Evidence by Fourth Amendment Violation

Answer 11

Question 12

Conspiracy

Answer 12

Question 13

Exceptions to warrant requirement

Answer 13

Question 14

Ineffective assistance of counsel

Answer 14

Question 15

What constitutes Accessory after the fact

Answer 15

An accessory after the fact is a person who aids or assists a felon in avoiding apprehension or conviction after commission of the felony.

An accessory after the fact must know that a felony was committed, act specifically to aid or assist the felon, and give the aid or assistance for the purpose of helping the felon avoid apprehension or conviction.

The mere failure to report a crime is not generally itself a crime. However, a person who gives false information to the police in order to prevent the apprehension of a felon can be an accessory after the fact.

Question 16

Larceny Concept

Answer 16

Larceny is the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive. Even a slight movement of the property can satisfy the carrying-away requirement, known as “asportation.”

Question 17

Common Law Burglary Concept

Answer 17

Common-law burglary is the breaking and entering of the dwelling of another at nighttime with the specific intent to commit a felony therein.

Question 18

When and what does the sixth amendment right to counsel attach and apply

Answer 18

Question 19

What is the different level of mens rea

Answer 19

Question 20

Will battery and assault be merged into Robbery

Answer 20

Yes

Question 21

Is the criminal act required to occur as a result of that intent?

Answer 21

Yes if intent is an element

Question 22

When will a felon be not guilty of felony murder

Answer 22

When a person is killed during the commission of a felony due to the direct action of someone other than the perpetrator of the crime or his accomplices, the perpetrator is not criminally liable for that death in the majority of jurisdictions because the killer is not an agent of the perpetrator and therefore the perpetrator is not responsible for the killer’s actions.

Question 23

What is the prosecution’s affirmative duty to disclose

Answer 23

The prosecution has an affirmative duty to disclose to the defendant any material evidence favorable to the defendant and relevant to the prosecution’s case in chief that would negate guilt or diminish culpability or punishment (i.e., Brady material). Failure to make such a disclosure violates the Due Process Clause and is grounds for reversal, regardless of whether the failure to disclose was intentional, if the defendant can show that (i) the evidence is favorable to the defendant and (ii) the failure to disclose caused prejudice against the defendant (i.e., there is a reasonable probability of a different outcome had the evidence been disclosed earlier).

Question 24

What does brady material include

Answer 24

Brady material includes not only material that is exculpatory but also material that impeaches the testimony of a prosecution witness.

Question 25

What limits peremptory challenges

Answer 25

The Fourteenth Amendment Equal Protection Clause prohibits both the criminal defendant and the prosecutor from exercising peremptory challenges solely based on race or gender. The Batson test requires that (i) the moving party establishes a prima facie case of discrimination, (ii) the party who exercised the challenge provides a nondiscriminatory explanation for the strike, and (iii) the moving party carries her burden of proving that the other party’s proffered reason was pretextual and that the strike was indeed motivated by purposeful discrimination.

Question 26

Accomplice liability

Accessory before the fact

Answer 26

Under the majority and MPC rule, an accomplice is a person who, with the purpose of promoting or facilitating the commission of the offense, aids or abets a principal prior to or during the commission of the crime.

An accomplice to the crime can be convicted of the crime, even if he was not involved in the principal’s criminal actions.

An accomplice is responsible for the crime to the same extent as the principal.

An accomplice that is neither physically nor constructively present during the commission of the crime, but who possesses the requisite intent, is an accessory before the fact.

Question 27

What is the best defense to involuntary manslaughter (Driving under influence)

Answer 27

Intoxication is not a valid defense to a general intent crime such as manslaughter. However, there must be a causal connection between the unlawful act and the death for involuntary manslaughter to apply. Therefore, the patron’s best argument would be that something other than his intoxication caused the collision, challenging the causal connection between the unlawful act of driving under the influence and the accident.

Question 28

Is voluntary intoxication a defense

Answer 28

Voluntary intoxication is a defense to specific-intent crimes if the intoxication prevents the formation of the required intent.

Question 29

Involuntary Manslaughter elements

Answer 29

Involuntary manslaughter is an unintentional homicide committed with criminal negligence or during an unlawful act. Under the misdemeanor-manslaughter rule, a killing committed in the commission of a malum in se (wrong in itself) misdemeanor is involuntary manslaughter.

Question 30

Can a honest held mistake of law negates the required intent ( thought it is felony but not)

Answer 30

Yes, then no such crime/felony

Question 31

A grant of use immunity

Answer 31

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. Consequently, the state grant of use immunity to the individual will preclude admission of his testimony given before the state legislative committee in the federal criminal proceeding against him.

Question 32

Can silence be used to impeach a defendant

Answer 32

The Fifth Amendment guarantees the right against self-incrimination. In the Miranda warnings, a defendant is told of their right to remain silent, which will not be used against him. Because this could encourage a defendant to remain silent, any use of post-arrest silence of a properly Mirandized defendant, whether for substantive or impeachment purposes, is a violation of the defendant’s due process rights. (Note that if the defendant had NOT yet been Mirandized, post-arrest, pre-Miranda silence can be used to impeach.)

Question 33

The right to counsel exists when the defendant is only imposed a fine

Answer 33

No The Sixth 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 34

Right to Jury offense requirement

Answer 34

The constitutional right to a jury trial exists for non-petty offenses—those that carry an authorized sentence of more than six months of imprisonment, regardless of the actual penalty imposed.

Question 35

When does the 6th amendment right to speedy trial start

Answer 35

Under the Sixth Amendment’s right to a speedy trial, the time period for measuring this right commences at the time of arrest or formal charge, whichever comes first. The defendant need not know about the charges against him for the right to attach.

Question 36

Double Jeopardy clause

Answer 36

Under the Double Jeopardy Clause of the Fifth Amendment, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, a defendant who has been acquitted of a crime generally may not be retried for the same crime. A grant of a demurrer or motion to dismiss in favor of the accused for the prosecution’s failure to prove the elements of a crime at the close of the state’s case is the equivalent to an acquittal.

Question 37

Voluntary vs Involuntary influence

Answer 37

The criminal act must be a voluntary, affirmative act causing a criminally proscribed result. Actions that are reflexive or convulsive are not considered voluntary. However, when an actor knows that a certain pattern of conduct is likely to result in an otherwise involuntary condition, and voluntarily pursues such conduct despite that knowledge, she can be held criminally responsible for the resulting involuntary acts.

Question 38

Murder intent?

Answer 38

A defendant can be guilty of murder even when the defendant lacked the intent to kill or inflict serious bodily harm. An unintentional killing that results from reckless indifference to an unjustifiably high risk to human life is a depraved-heart murder.

Question 39

False pretenses vs Larceny by trick

Answer 39

At common law, false pretenses requires obtaining title to the property of another person through the reliance of that person on a known false representation of a material fact, and the representation is made with the intent to defraud.

Larceny by trick occurs when a defendant obtains possession of but not title to property owned by another through fraud or deceit, with the intent to permanently deprive the victim of that property, resulting in the conversion of the property.

Question 40

Can one be convicted of more than one inchoate offense?

Answer 40

Under the Model Penal Code, a defendant may be concurrently prosecuted for, but not convicted of, more than one inchoate offense (i.e., solicitation, conspiracy, and attempt) based on conduct designed to culminate in the commission of the same crime.

Question 41

Conspiracy and Wharton rule

Answer 41

Under the common law, conspiracy is (i) an agreement (ii) between two or more persons (iii) to accomplish an unlawful purpose (iv) with the intent to accomplish that purpose. Under the majority rule, one of the co-conspirators must also commit an overt act in furtherance of the conspiracy.

However, under the Wharton Rule, if a crime requires two or more participants, there is no conspiracy unless more parties than are necessary to complete the crime agree to commit the crime.

Question 42

Does recording violate 4th amendment

Answer 42

the Fourth Amendment protects private conversations when no party consents to the recording, but does not protect conversations when one party consents to the recording. There is no reasonable expectation of privacy in conversations carried on with undercover officers.

Question 43

Can 6th amendment right to counsel be waived? Can defendant request change of attorney?

Answer 43

the Sixth Amendment right to counsel also includes the right to waive counsel and proceed pro se, the court properly permitted the woman to proceed pro se.

Although a defendant who is able to afford a lawyer is generally entitled to counsel of his own choosing, an indigent defendant is not entitled to the appointment of counsel of his own choosing. Instead, an indigent defendant has the right to an effective advocate, not to an attorney preferred by the indigent defendant.

Question 44

Does police need to inform defendant the existence of an attorney

Answer 44

The police are under no obligation to inform a suspect that an attorney has been trying to reach him, and may even withhold that information intentionally, so long as the Sixth Amendment right to counsel has not yet attached.

Question 45

What constitutes a specific invoke the right to counsel under fifth amendment

Answer 45

generally wondering if an attorney should be present is not a sufficient invocation of the right to counsel, at least in a Fifth Amendment context. In any event, although a defendant is required to specifically invoke his right to counsel under the Fifth Amendment, there is no such requirement under the Sixth Amendment.

Question 46

Delay by counsel interferes with right to speedy trial?

Answer 46

Delay in proceeding to trial attributable to the defendant’s attorney is not allocated to the state simply because the attorney was provided by the state to the defendant. Instead, as with delay attributable to a defendant-supplied attorney, delay attributable to a public defendant is generally treated as caused by the defendant rather than the state.

Question 47

What classifies as the same offense under double jeopardy clause

Answer 47

The Fifth Amendment’s Double Jeopardy Clause prohibits multiple criminal prosecutions for the same offense. Two different crimes committed in one criminal transaction are generally deemed the same offense unless each crime requires proof of an element that the other does not. 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.

Question 48

Can solicitation satisfy assault element

Answer 48

Assault is an attempt to commit a battery (the unlawful application of force to the person of another, which can be applied through a third person acting under the defendant’s direction). Attempt requires a substantial step toward the commission of a crime, such as solicitation of an innocent agent to engage in criminal conduct, coupled with intent to commit that crime.

Question 49

Is there an overt act requirement for common law conspiracy?

Answer 49

No, only MPC

Question 49

The “Pinkerton Rule”

Answer 49

every co-conspirator is guilty of any substantive offense committed in furtherance of the conspiracy, regardless of actual knowledge of its commission.

Question 50

Authority of 3rd party consent to search

Answer 50

When property to be searched is under the joint control of the defendant and a third party (e.g., a house jointly owned by a husband and wife), the authority of the third party to consent turns on whether the defendant is present at the time of the search. If the defendant is present at the time of the search, then the police may not rely on third-party consent if the defendant objects to the search.

Question 51

How can a facially valid warrant be challenged

Answer 51

A defendant may go beyond the face of a warrant and challenge its validity due to the inclusion of false information in the affidavit. However, the defendant must establish by a preponderance of the evidence that the false information was knowingly, intentionally, or with reckless disregard for its truthfulness included by the affiant in the affidavit and that the information was necessary to a finding of probable cause by the magistrate

Question 52

Burden of persuasion regarding an affirmative defense

Answer 52

such as duress, that does not negate the elements of the crime may be placed on the defendant without violation of the Due Process Clause.

Question 52

the Eighth Amendment Excessive Bail Clause requires

Answer 52

when bail is set, it cannot be excessive, i.e., set higher than an amount reasonably calculated to ensure the defendant’s presence at trial.

Question 53

How can a confirmation satisfy statute of fraud

Answer 53

Question 54

Recovery for breach of illegal contract

Answer 54

Question 55

Installment contracts

Answer 55

Question 56

Promissory estoppel

Answer 56

Question 57

Right to confrontation in a joint jury trial

Answer 57

Question 58

Distinguish Property rights

Answer 58

Question 59

Jury trial structural errors

Answer 59

Question 60

Insanity defense burden

Answer 60

Question 61

Involuntary confessions

Answer 61

Question 62

Honest but unreasonable mistake a defense?

Answer 62

Defense to specific intent crimes

Question 63

Use immunity

Answer 63

Prevent to be used in criminal trial in future prosecution but not in future civil trials.

Question 64

What is required for felony statute apply to allow felony murder

Answer 64

The felony itself is inherently dangerous

Question 65

Prior conviction need to ran by jury before judge poses a higher sentence

Answer 65

no

Question 66

“Dual Sovereignty” doctrine,

Answer 66

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.) Under Blockburger, robbery and conspiracy to commit robbery are separate offenses. Each contains an element that the other does not. Consequently, prosecution of the defendant for either robbery or conspiracy to commit robbery by the state is not prohibited by double jeopardy.

Question 67

Common items & areas with no reasonable expectation of privacy

Answer 67

Question 68

Curtilage

Answer 68

an area of land around a house and forming one enclosure with it.

Question 69

police may not contact a defendant who is represented by a lawyer without the lawyer being present?

Answer 69

Even after a defendant’s Sixth Amendment right to counsel has attached, the police may initiate non-custodial interactions with the defendant outside the presence of his lawyer if the defendant waives that right and the waiver is voluntary, knowing, and intelligent. There is no presumption that a knowing waiver of the right to have counsel present for the interaction is involuntary.

Question 70

Larceny real vs personal property

Answer 70

Larceny is the (i) trespassory (ii) taking and carrying away (iii) of the personal property of another (iv) with the intent to permanently deprive that person of the property. The taking of real-property items (e.g., unharvested crops) is not larceny when the defendant’s act of severance occurs immediately before the carrying away of the real-property items. The act of harvesting fruit constitutes the severance of real, rather than personal property. Here, because the baker had picked the blueberries himself, he had effected their severance from the farmer’s field and the blueberries the baker picked are considered to be real rather than personal property.

Question 71

Agreement in conspiracy

Answer 71

At common law, conspiracy is (i) an agreement (ii) between two or more persons (iii) to accomplish an unlawful purpose (iv) with the intent to accomplish that purpose. Here, the unlawful purpose was to obtain money from the retailer by false pretenses. False pretenses is (i) obtaining title to the property (ii) of another person (iii) through the reliance of that person (iv) on a known false representation of a material past or present fact, and (v) the representation is made with the intent to defraud. In this case, each individual and the employee had the intent to obtain money from the retailer through the retailer’s reliance on each individual’s false representation that he had obtained all of the game pieces through authorized, legitimate channels. However, there was not an agreement among all of the individuals to participate in the employee’s scheme, but only separate agreements between the employee and each individual to obtain money from the retailer by false pretenses. Consequently, the employee and all of the individuals cannot properly be convicted of entering into a single conspiracy.

Question 72

Is duress a defense to intentional murder?

Answer 72

She cannot claim duress because duress is never a defense to intentional murder

Question 73

rely on an arrest warrant to effect the arrest in the home of a third party?

Answer 73

an officer cannot rely on an arrest warrant to effect the arrest in the home of a third party. The officer may enter the home only with a warrant to search for the person named in the arrest warrant or under a valid warrant exception, such as consent or exigent circumstances. Probable cause alone is not sufficient justification for an officer to search for a person in the home of another.

Question 74

When does The Sixth Amendment right to counsel apply?

Answer 74

at all critical stages of a prosecution, after formal proceedings have begun. The right automatically attaches when formal judicial proceedings have begun, whether at a post-arrest initial appearance before a judicial officer, or by way of formal charge, preliminary hearing, indictment, information, or arraignment. In this case, formal judicial proceedings began when the man was arraigned for robbery the morning after he voluntarily confessed.

Question 75

Mistake of law defense

Answer 75

Question 76

Criminal defenses: burdens & standards of proof

Answer 76

Question 77

Mistake of fact

Answer 77

Question 78

Traffic stop driver ordered out is that custody

Answer 78

No

Question 79

Rape mens rea

Answer 79

Question 80

Voluntary intoxication

Answer 80

Question 81

Good faith reliance on facially valid warrant

Answer 81

although the good faith reliance exception to the exclusion of evidence seized pursuant to a defective warrant can apply even where that reliance is caused by isolated police negligence, it does not apply to deliberate police misconduct

Question 81

Attenuation principle

Answer 81

Under the attenuation principle, the discovery of the valid arrest warrant attenuated the link between the improper stop and the discovery of the evidence. Because there was no flagrant misconduct on the part of this officer, the discovery of the valid warrant would “purge” the taint of the initial stop, and the evidence would be admissible.

Question 82

Prove valid miranda waiver burden

Answer 82

The prosecution bears the burden of establishing that a defendant has waived his Miranda rights by a preponderance of the evidence.

Question 83

Discretional appeal right to counsel

Answer 83

A state is not constitutionally required to provide an indigent defendant with counsel in order to pursue a discretionary appeal.

Question 84

the judge may or may not direct a verdict in favor of the prosecution in a jury trial?

Answer 84

In a criminal jury case, a judge may order a directed verdict only for acquittal; the power to convict is reserved to the jury. Consequently, although the judge could deny the defense’s request for a directed verdict, the judge could not take the case from the jury by granting the prosecution’s request.

Question 85

Best defense to false pretenses and larceny by trick

Answer 85

Question 86

Kidnapping elements

Answer 86

Question 87

Is a parolee in custody in meetings?

Answer 87

Question 88

failure to exclude a for cause juror

Answer 88

Question 89

Right to be present at trial can be forfeited?

Answer 89

Question 90

cruel&unusual punishment

Answer 90

Question 91

Vicarious liability for strict liability criminal crimes?

Answer 91

vicarious liability may be applied to a variety of strict-liability crimes. The modern trend is to limit the application of vicarious liability to regulatory crimes, and it is less likely to apply to crimes when the punishment may include imprisonment, but these limitations do not amount to a total prohibition on the application of vicarious liability to strict-liability crimes.

Question 92

Third party consent to search

Answer 92

A third party’s consent to a search is not invalid because he lacks the authority to consent, so long as the police reasonably believe that he does have such authority.

Question 93

retreat doctrine

Answer 93

Question 94

impeaching with criminal conviction

Answer 94