Crim and Crim Pro Flashcards

Question

What limits peremptory challenges

Answer 1

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.

Answer 2

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.

Answer 3

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.

Answer 4

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

Answer 5

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.

Answer 6

Yes, then no such crime/felony

Answer 7

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.

Answer 8

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.)

Answer 9

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.

Answer 10

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.

Answer 11

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.

Answer 12

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.

Answer 13

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.

Answer 14

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.

Answer 15

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.

Answer 16

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.

Answer 17

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.

Answer 18

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.

Answer 19

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.

Answer 20

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.

Answer 21

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.

Answer 22

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.

Answer 23

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.

Answer 24

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.

Answer 25

No, only MPC

Answer 26

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

Answer 27

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.

Answer 28

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

Answer 29

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.

Answer 30

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.

Answer 31

Defense to specific intent crimes

Answer 32

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

Answer 33

The felony itself is inherently dangerous

Answer 34

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.

Answer 35

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

Answer 36

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.

Answer 37

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.

Answer 38

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.

Answer 39

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

Answer 40

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.

Answer 41

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.

Answer 42

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

Answer 43

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.

Answer 44

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

Answer 45

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

Answer 46

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.

Answer 47

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.

Answer 48

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.