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MBE Weak Areas > Crim and Crim Pro (from outline) > Flashcards

Crim and Crim Pro (from outline) Flashcards

1
Q

A accomplice is a person who _____ or _______ the principal with the intent that the crime is comitted.

A

assists

encourages

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2
Q

accomplice liability requires one to aid, abet, or facilitate the commission of a crime with the ____ that the crime be commtited

there is no minimum standard for that encouragement, and it does not have to be a clear and present danger to qualify

A

intent

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3
Q

if the woman charges the man considerably higher rent than a prior tenant who used the office for non-criminal purposes, that could be useful to prove that the woman has a stake in the success of the man’s illegal betting parlor.

this could help a prosecutor prove that the woman provided the office space in order to aid, abet, or facilitate the man’s illegal activities because she was benefiting from his success

A

illegal betting parlor

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4
Q

is mere presence at the scene enough to be an accomplice?

A

nope

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5
Q

An accomplice is liable for all crimes committed that he aids or encourages and all “_____” of the crime he intends to assist

A

natural and probable results

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6
Q

An accessory after the fact is a person who ____ assists a person who has committed a crime with the ___ to help him avoid arrest, trial, or ____

A

knowingly

intent

conviction

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7
Q

First degree murder requires ______ aforethought. This is an intentioanl killing with _____ and deliberation (i.e., poisioning someone)

A

malice

premeditation

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8
Q

Voluntary manslaughter - does this require malice aforethought?

A

NO

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9
Q

Voluntary manslaughter (depraved heart) is an intentional killing of a human being in the _______ due to adequate ______

A

heat of passion

adequate provocation

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10
Q

do mere words count as adequate provication under the majority view for voluntary manslaughter?

A

no

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11
Q

Murder is the intentional killing of another human being with ______

A

malice aforethought

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12
Q

proof of malice does NOT need to be proof of actual specific intent to kill or harm another - it can be _____ from the defendant’s gross recklessness without regard to human life

A

implied

ex: the homeowner fired a shotfun into bushs which he believed people wer ehiding. This action supports a finding of malice

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13
Q

Malice can be proved by showing a reckless disgregard for an _______ or high risk to human life

A

obvious

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14
Q

Involuntary manslaughter does NOT involve _____

A

malice aforethought

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15
Q

involuntary manslaughter is a killing due to _____ or recklessness (like if a parent doesn’t take his extremely sick infant to the free local clinic and the infant dies)

or a killing during a ______ or felony that does not qualify for felony murder (misdemeanor manslaughter)

A

gross negligence

misdemeanor

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16
Q

Felony murder invloves ____

A

malice aforethoght

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17
Q

Felony murder is when D commits a felony and someone other than the co-felon dies. The death can occur during the ____ of the felony, the _____to commit it, or the ____ from it

A

commission

attempt

flight

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18
Q

to qualify for felony murder, the felony must be ______. This includes BARRK (burglery, arson, rape, robbery, and kidnapping)

A

inherently dangerous

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19
Q

For felony murder, there must be causation. Under the agency theory, the felony or his agent (co-felon) MUST cause the death.

Under the ___ theory, the felon is liable so long as he “____” the acts that cause the death

A

proximate cause

sets in motion

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20
Q

Kidnapping is the unlawful _____ of a person that involves either (1) some movement (______) of the victim, or (2) concealment of the victim in a “secret place”

A

confinement

asportation

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21
Q

burglary requirres a breaking and ______ of the dwelling of another at nighttime, with the intent of committing a ________therein

A

entering

felony

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22
Q

Accessory after the fact is someone who assists a person who has committed a crime, after the other person committed the crime, with ____ that the person committed a crime, and with the ___ to help the person avoid punishment

A

knowledge

intent

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23
Q

conspiracy at common law requires an _______, the intent to agree, and the intent to __________ (in some jdx, an overt act)

A

agreement

commit the underlying crime

Both people must be capable of consenting to the offence in which they are agreeing

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24
Q

solicitation is a specific intent crime that involves ______ someone to commit a crime, with the _______ that the crime be committed

A

asking

intent

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25
Q

A person is guilty of solicitation if he __ or encourages another to commit a crime with the ____ that the crime takes place

A

requests

intent

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26
Q

to be guilty of attempt, one must _____ to commit the target crime and take ___, BEYOND mere preparation in committing that crime

A

intend

substantial steps

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27
Q

For attempt, the closer it is to the actual preparation of the target crime, the more likely it is to find that there was a ____

A

substantial step

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28
Q

Under wharton’s rule, you apply this in cases where the crime to be committed is one that, by definition, requires the voluntary concerted ________ of ____ people

A

criminal participation

two

*In contrast, statutory rape can be committed without the voluntary concerted ciminal participation of the minor victim, so the Wharton Rule would NOT apply

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29
Q

Common law murder is the unlawful killing of a human being with malice aforethought. Malice aforethought exists if it was committed with an _______, an intent to inflict _____, reckless disregard to an _____ risk of human life ( ____), or intenet to commit a felony

A

intent to kill

great bodily harm

unjustifiable

(depraved)

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30
Q

If murder is defined by statute, a murder in the first degree is when D makes decision to kill in a ________ manner, reflected on the idea of killing, even if for brief period

A

cool and dispassionate

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31
Q

Since first degree murder is based on premeditation and this requires a _______ intent, this can be NEGATED by the defense of _________

A

specific

voluntary intoxication

*BUT voluntary intoxication is not a defense to second degree common law murder because that just requires reckless indifference to human life

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32
Q

voluntary manslaughter is a killing that would be murder, but it is nott because there was ______ (sudden and intense passion causing to lose self control) and no time to cool off

A

adequate provocation

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33
Q

if the defendant acted with criminal negligence, then that is ______ manslaughter

A

involuntary

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34
Q

involuntary manslaughter is the ____killing of another person as a result of _____ or reckless conduct

A

unintentional

criminal negligence

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35
Q

what is the difference between depraved heart murder and involuntary manslaughter?

A

The key difference is in the mental states. In sum, depraved heart (voluntary manslaughter) involves an extreme indifference to human life, while involuntary manslaughter involves a lower level of culpability - such as negligence or recklesness

VM (D<3)= EIHL
IM = N or R

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36
Q

Involuntary manslaughter involves a killing that was completed with either “criminal negligence” (recklesness under the MPC) or in some states, during the commission of an ___

A

unlawful act

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37
Q

Depraved heart murder at common law involves a high risk of death while involuntary manslaughter involves only a ______ risk

A

substantial

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38
Q

larceny is the trespassory taking and carrying away with the intent to _____ at the time you TOOK IT

without consent

PERSONAL PROPERTY (not real)

A

permanently deprive

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39
Q

larceny by trick is when the defendant intentionally makes a ______ of material fact to obtain ____ (but not title) of personal property of another

A

false representation

custody

Let’s say you rent a car and tell Enterprise “haha yea I’ll have this back in no time”

Two days later you’re taking this thing out of the country = You tricked Enterprise and gained physical possession of the car through a false statement of material fact.

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40
Q

false pretenses is when the defendant obtains _____ to the property (in contrast to larceny by trick which is just custody) with the intent to DEFRAUD

HINT: look at what the victim intends to do at the time he hands over the property. If the victim is just handing it over and never intends to get it back, that is false pretenses. Otherwise, it is larceny by trick

A

title

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41
Q

you cannot be guilty of false pretenses if the person ______ the property belonged to her

AKA if you make a false statement to obtain property that you ____ is yours, then you are NOT guilty of false pretenses

must have INTENT TO STEAL

A

subjectively believed

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42
Q

embezzlement is the fraudulent conversion or misapproproation of property of another when someone is already in ____ of that property

Amt of money charged for = value @ time U embezzled it

If person believes that the person whose money they have legal possession over OWES them money and they just trying to satisfy a debt, that is a _____to embellzement

A

lawful possession

defense

minor employee = no lawful possession
high level employee = lawful possession

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43
Q

robbery is larceny + a taking from another’s person or presence + force or _______

HINT: D must use force or the victim MUST feel fear. If the victim is NOT afraid, and no force is used, then the D cannot be liable for robbery

A

threat of force

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44
Q

the mens rea for attempt is that the D must have the _____ to complete the crime

A

specific intent

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45
Q

the mens rea for conspiracy is that the D must have the _______ to enter into the agreement + accomplish its objectives

A

specific intent

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46
Q

mens rea for solicitation is that there must be a _____ that the crime be committed

A

specific intent

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47
Q

for attempt, under the MPC/ majority rule, there must be a “substantial step” that is _____ with the criminal purpose

A

strongly corrobative

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48
Q

for attempt, under common law, the actus reus is satisfied if the D gets “_____” to committing the crime

A

“dangerously close”

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49
Q

the acus reus for conspiracy is that there must be an agreement by 2+ people to commit a crime and an ______ in furtherance of the crime (in some states)

A

overt act

NOTE: an overt act is nto required at common law

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50
Q

the actus reus for solicitation is that D requests, encourages, advises, or ___ that someone commit a crime

A

commands

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51
Q

is attempt merged with the completed crime?

A

Yes. Cannot be convicted of both attempt and the completed crime

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52
Q

Does conspiracy merge with the completed crime?

A

No. You can be convicted of conspiracy to commit the crime and the completed crime.

ALSO, D is liable for all other crimes committed by conspirasors so long as they are foreseeable and in furtherance of the conspiracy

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53
Q

is withdrawal a defense to conspiracy?

A

generally no. It is not a defense BUT a valid withdrawal will cut off liability for any crimes committed after the withdrawal

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54
Q

Is solicitation merged with the completed crime?

A

Yes. Cannot be convicted of solicitation and the completed crime

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55
Q

is factual impsosibility and withdrawing defenses to incoate crimes?

A

no

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56
Q

The defense of self defense is availabel if the D reasonably believed that force was ___ to avoid the ______ use of unlawful force by another

A

necessary

imminent

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57
Q

M’Naighten Rule is that D must prove he suffered a disease of the mind that caused a _______and that he lacked the ability to _____ the ____ of his actions or understand the nature and ____ of his actions

A

defect of reason

know; wrongfulness

quality

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58
Q

voluntary intoxication is a defense to ____crimes ONLY IF it negates the ______

A

specific intent; specific intent

*involuntary intoxication is treated the same as insanity

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59
Q

For specific intent crimes, a reasonable or unreasonable mistake of _____ can serve as a defense.

For general intent or malice crimes, only a _____ mistake of _____ is a defense.

For strict liablity crimes, mistake of ___ is NOT a defense

A

fact

reasonable; fact

fact

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60
Q

Generally, mistake of ____ is NOT a defense (even if relying on your lawyer!). Some narrow exceptions

A

law

61
Q

necessity is a defense if the D reasonably believed his criminal conduct was _____ to prevent a greater harm and is not at fault in creating the situation

A

necessary

62
Q

duress is a defense if D reasonably feared that if he would not perform the crime, either he or another would suffer ______ death or serious bodily injury

A

imminent

63
Q

Can duress be a defense to homicide?

A

nope

64
Q

the prosecution must prove every element of a crime beyond ____

The defendant may be required to prove any ___

A

a reasonable doubt

affirmative defenses

65
Q

If you knew or should have known there were people there, you were acting ____

A

recklessly (depraved heart)

66
Q

if you did NOT know or should have known that people were present, you were acting ___

A

negligently (involuntary manslaughter)

67
Q

Russian roulette

A

depraved heart

68
Q

if you go to stadium where super bowl is on saturday night, go to bleachers, take machine gun and spray machine gun fire around.

you’re luck, a security guard was there ans got killed. That is ____ AKA involuntary manslaighter

A

negligently

69
Q

No matter what the fact pattern describes, if the call says “if charged with MURDER will Jon be guilty,” you must NEVER pick the answer about _____ because it made it murder question

A

manslaughter

70
Q

hypo talking about having lots of people to yoru house to watch ball game… sometime dies

A

depraved heart murder

guilty b/c acted recklessly

guilty b/c jon knew someone could have been killed

71
Q

involuntary manslaughter questions will involve

A

neligence

“but for, reasonable care, proximate cause”

72
Q

adequate provocation - look for one extreme or the other.

A

voluntary manslaughter

73
Q

in state green, murder in the first degree is the “intentional killing of another”

A

specific intent

74
Q

what if hypo that says “in state blue, murder in the first degree is the intentional killing of another + felony murder”

second degree murder is any act acting with disregard (Depraved heart)

A

pick what facts tell you

75
Q

under voluntary manslaughter, there is the “imperfect self defense” hypo. If someone is defending themselves, but they are using excessive force, but they HONESTLY BELIEVED they had to use excessive force ot defend themselves and they kill someone, they will be charged with _______NOT murder

A

voluntary manslaughter

76
Q

if you see a parent negliecting care of child due to religious reasons, and the kid dies. That is _____

A

involuntary manslaighter

77
Q

If there is a search or seizure by a government agent, then the 4A applies. There are four ways to satisfy the 4A:
1. _____ + proper execution
2. good faith or a reasonable mistake by the officer which saves a defective warrant
3. exceptions exist

A
  1. valid warrant
78
Q

If the 4A is not satisfied, the the exclusionary rule applies.

Evidence is excluded from the prosecutor’s case and chief. But it can still be used for SIICK (explain)

A

S - if the D does not have standing
I - for impeachment
I - if the evidence would have been discovered inevitably
C - in civil and non-criminal proceedings
K - if the knock and announce rule was violated

79
Q

What are the 6 excdeptions to the warrant requirement under the 4A?

ASPACE

A
  1. Automobile exception
  2. Search incident to a lawful arrest
  3. Plain view
  4. Administrative search
  5. consent
  6. Exigent circumstances
80
Q

Under the automobile exception, offers can search an automobile if they have ____ to believe that the evidence, instrumentalities, or fruits of a crime are in the car

A

probable cause

81
Q

under the search incident to a lawful arrest, an offer may conduct certain searches of the arrestee, including searching his person, clothing, and his “_____” without a warrant to keep the officer safe and preserve evidence

The officer may NOT search the _____ under this exception

A

wingspan

trunk

82
Q

Three types of administrative searches:

A
  1. offivers searching arrestees and impounded vehicles
  2. public school officials can search students and their personal effects upon reasonable suspicion,
  3. random drug testing permitted for public school children involved in ANY extracirricular
83
Q

if someone with actual or apparant authority gives ___ voluntarily to search, the officer may search the areas to which they ____ to

A

consent
consented

*A co-tenant can consent to search of areas to which he has control but if other co-tenant revokes consent then must stop search

84
Q

emergency circumstances exception applies when an officer is in ___ of a suspect (there must be ____ that the suspect has committed the crime), or there is a serious injury or threat of onjury, OR if evidence is _______ before a warrant can be obtained

A

hot pursuit
probable cause

likely to disappear

85
Q

under the plain view exception to the warrant requirement, an officer who is lawfully present int he area that he is in, may seize an item if it is “_____” that it is contraband or evidence of a crime

A

imminently apparant

86
Q

the 5A is the privilege against _____

A

self incrimination

87
Q

Under the double jeapordy clause, no person shall be subject to the same offense twice.

Jeapordy attaches when the jury ______ or when the first witness is sworn in a _____ trial

The DJC prevents both retrospection after acquittal and after conviction

A

is impaneled and sworn in a jury trial

bench

88
Q

For double jeapordy, the “_____” you ask if each crime contains an element that the other does not. If that’s the case, then they are not the “Same offense” and DPC doesn’t apply

A

same offense

89
Q

Does the double jeapordy clause prevent retrospection when the prosecution is conducted by separate soverigns? (i.e., the state and federal government or diferent states)

A

NO it does not apply to separate soverigns

90
Q

the dismissal after a preliminary hearing had no double jeopardy consequences because jeopardy only attaches when the jury is ____ and sworn in, or in a bench trial, when the _____ is sworn in

A

empaneled
first witness

91
Q

the 5A provides the right to be free of double jeapordy for the same offense. Once jeapordy attaches, a D may NOT be tried for the _____ twice

Jeopardy attaches during a jury trial at the empaneling of the jury and a bench trial when the first witness is sworn in

A

same offense

92
Q

The 6A gives D a fair trial and right to _____

A

counsel

93
Q

Under the _____, the jury pool must represent a cross-section of the community

A

6A

94
Q

Does the jury itself have to be diverse?

A

no

95
Q

Each defendant has the right to effective assistance of counsel. This extends to the FIRST APPEAL.

to prove ineffective assistance of counsel, D must show that his lawyer’s performance was _____ and fell below an objective standard of reasonableness and ______ the ineffective assistance, the result would have been _____

A

deficient
but for
different

96
Q

The ___ prevents against cruel and unusual punishment

A

8A

97
Q

The 5A contains a right to remain silent and the right to ____. This right attaches whenever there is a ____

A

counsel
custodial interrogation

98
Q

Under 5A, the police cannot interrogate a suspect who is IN CUSTORY without ___ or ______ (exception: public saftey)

A

consent
waiver

99
Q

Under 5A, any confession is excluded in the prosecutor’s case in chief. The confession may NOT be admitted (except for ______) but if it led to physical fruits (like the murder weapon) then those fruits MAY be admitted

A

impeachment

100
Q

A waiver of one’s miranda rights mutst be ____, intelligent, and _____

A

knowing
voluntary

101
Q

The right to remain silent must be expressed explicitly and _____

A

unequivocally

102
Q

The 6A right to counsel attaches when D is ____

A

formally chargedt

103
Q

the 6A right to counsel attaches when D is formally and applies to all _____ of te proceedings thereafter

A

critical stages

104
Q

A police cannot ______ an incriminating statement after formal charges have been filed unless D has counsel or waives his rights

A

deliberatly elicit

This is offense specific

105
Q

A 6A confession is excluded in the prosecutor’s case in chief but MAY be used for_____

A

impeachment

106
Q

the 6A applies to post-charge line ups and show ups but it does NOT apply to ______, finger printing, and other forms of ID

There is no right to counsel for ________ line ups, since this right attaches upon being _____

A

photo identification

pre-charge

charged

107
Q

the prosecution has a constitutional obligation to turn over material _______ evidence, which includes evivdence that would impeach a critical gov witness

if the failure to disclose that info created a _____ of a different outcome, then the appellate court should reverse the conviction

A

exculpatory

reasonable probability

108
Q

the constitution requires UNANIMOUS VOTE when only a _____ person jury is used

A

six

109
Q

if an officer lies to someone to try and get their consent to enter their home, that is NOT a violation of ___

A

4A

110
Q

Police may NOT manipulate objects to see if there is something under them.

If police messes with objects, then they are NO LONGER in _____

If a police officer looks for a stolen watch and is given permission to enter a residence, and then police REMOVES A BOOK from bookcase and finds stolen watches behind the book, the watches will be _____

A

plain view

suppressed

111
Q

searches based on _____ are inheretnly reasonable when there is danger to the officers, the crime has recently occured, the evidence may be _____ OR the D could escape if the police were required to go get a warrant

A

exigent cirumstances

destroyed

112
Q

the “in custody” requirement for Miranda warnings is not met simply because a probationer or parolee is under a general obligation to ____ and answer truthfully.

A

appear

113
Q

A person is “in custody” when under formal arrest or restraint on freedom of movement of the degree associated with a ___

A

formal arrest

114
Q

parloees DO still have their ______ rights

A

5A

115
Q

if a police officer observes D driving his car 45 MPH in a 25 MPH zone, if D is pulled over for a traffic citation, if the police then SMELL alcohol ask D “did you have anything to drink” and D says “yeah I had 4 beers earlier at a bar” then this statement is ______ at D’s trial and can be used at D’s trial for DWI + may be used imn prosecution case in chief and for impeachment

A

admissible

116
Q

the privilege against self incrimination extends only to compelled “_____” communications. Thus, even though the act may provide incriminating evidence, a criminal suspect may be compelled to make a recording of his voice

A

testimonial

117
Q

a stop, frisk, and questioning are permissible if cops have ____ for it

A

reasonable suspicion

118
Q

Miranda warnings are NOT required for _____

A

Terry stops

119
Q

criminal negligence requires a greater deviation from the reasonabel person standard. The defendant’s behavior must be a _____ deviation from the standard of care that a reasonable person would have exercised in the same situation

A

substantial

120
Q

under the defense of duress, a person is not guilty of an offense, other than intentional homicide, if he performs an otherwise criminal act under the threat of______ or great bodily harm, provided that he reasonable believes death or great bodily harm will be inflicted on himself if he doesn’t perform such conduct

A

imminent infliction of death

121
Q

duress cannot be a defense to ____

A

intentional homicide

122
Q

the 5A provides the right to be free of double jeapordy for the ____

A

same offens

123
Q

two crimes do not constitute the same offense if each crime requires ____ of an _______ that the other crime does ________, even though some of the same facts may be necessary to prove _____

A

proof of
an additional element
does not require
both crimes

124
Q

The ____of the 14A requires in all criminal cases that the state prove GUILT beyond a ____ doubt

A

DPC
reasonable

125
Q

A mandatory presumption or a presumption that shifts the VOP to the D violates the 14A requirement that the state prove every element of a crime ______

A

beyond a reasonable dount

126
Q

the sixth amendment provides the right to ____-

A

trial by jury

127
Q

if substantive law provides that a sentence may be increased beyond the stautory maximum for a crime if additional facts are proved, then proof of the facts must be submitted to the jury and proved ___

A

beyond a reasonable doubt

128
Q

the Ds right to jury trial is violated if the ____ makes the determination that additional facts were proved

A

judge

129
Q

the defendant had the right to counsel during the period of arrest and any attempt by the police to directly elicit incriminating statements, including through the use of an _____ while he was in his cell

this violates the right to have counsel present during interrogation

A

informant

130
Q

By placing the informant in the cell with the defendant, the prosecution likely created a situation that would induce the defendant to ______ himself without counsel present, which amounts to a violation of his constitutional rights

A

incriminate himself

131
Q

you CANNOT be convicted of conspiracy and ____ at the same time because you can only be convicted of ONE incohate crime at a time.

examples of incohate crimes include:

A

solicitation

conspiracy, attempt, solicitation

132
Q

specific intent crimes

A
133
Q

intoxication is NOT a defense to ____ crimes

A

reckless

134
Q

if you thought you were breakign into your OWN house but it was so dark that you could not tell it was your neighbor’s house, then based on those facts this would qualify as a _____ and a defense to the specific intent crime of burglary

A

reasonable mistake

135
Q

a r___ means that basically, if the facts were as you believed themt o be, then the conduct would have been lawful

A

reasonable mistake

136
Q

what type of mistake is a defense to malice crimes?

A

only REASONABLE MISTAKES

137
Q

for general intent crimes, only mistakes that are ____ will be a defense

A

reasonable

138
Q

DEFENSES TO CRIMES

A
139
Q

MPC standards

A

PKNR
Purposefully
Knowingly
Recklessly
Negligently

140
Q

McNaughten =
Severe mental illness + not understanding that ___

A

what you are doing is WRONG

141
Q

irresistable impulse test (minority of states) says that

A

even though the D knows the act is wrong, his MENTAL defect gives him an overwhelming urge to commit the crime anyway

142
Q

Durham test states that as long as your conduct was the _____ of a mental disease or defect at the time of the crime, you will _____ via insanity

A

product
escape liability

143
Q

The MAIN DIF b/w MPC and M’Naighten test is whether you udnerstood it was ____ or not

A

wrong

Under MPC == even if you knwo it is wrong, you may estcape liability if you can’t conform conduct to law
Under McNaighten = you must KNOW that the shit was wrong

144
Q

McNaughten = My Dog Nibbles Kale

A

McNaughten Do Not Know

145
Q

McNaughten = you did not know what you were doing
MPC = you knew but you could not ____ your conuduct to the law

A

conform

146
Q

MAJORITY VIEW

for deadly force, you can only use deadly force when you ____ deadly force is about to be used on you or a 3P (no duty to retreat)

A

believe

147
Q

MINORITY APPEOACH

you can use deadly force when you BELIEVE deadly force is about to be used on you or a third party AND you tried to____ if possible

A

retreat first

148
Q

a state acquires jurisdiction over criminal acts for two reasons:
(1) the crime occured there,
(2) the unlawful result of the crime happened there

if it is a crime of OMISSION (like failure to report a child abuse, then the state where the abuse _____ will have jdx)

A

SHOULD have been reported

149
Q

can you be punished by BOTH the STATE and FEDERAL government for the SAME ACT without violating double jeapordy?

A

yes

MBE Weak Areas (17 decks)

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