Crim and Crim Pro (from outline) Flashcards
A accomplice is a person who _____ or _______ the principal with the intent that the crime is comitted.
assists
encourages
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
intent
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
illegal betting parlor
is mere presence at the scene enough to be an accomplice?
nope
An accomplice is liable for all crimes committed that he aids or encourages and all “_____” of the crime he intends to assist
natural and probable results
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 ____
knowingly
intent
conviction
First degree murder requires ______ aforethought. This is an intentioanl killing with _____ and deliberation (i.e., poisioning someone)
malice
premeditation
Voluntary manslaughter - does this require malice aforethought?
NO
Voluntary manslaughter (depraved heart) is an intentional killing of a human being in the _______ due to adequate ______
heat of passion
adequate provocation
do mere words count as adequate provication under the majority view for voluntary manslaughter?
no
Murder is the intentional killing of another human being with ______
malice aforethought
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
implied
ex: the homeowner fired a shotfun into bushs which he believed people wer ehiding. This action supports a finding of malice
Malice can be proved by showing a reckless disgregard for an _______ or high risk to human life
obvious
Involuntary manslaughter does NOT involve _____
malice aforethought
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)
gross negligence
misdemeanor
Felony murder invloves ____
malice aforethoght
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
commission
attempt
flight
to qualify for felony murder, the felony must be ______. This includes BARRK (burglery, arson, rape, robbery, and kidnapping)
inherently dangerous
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
proximate cause
sets in motion
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”
confinement
asportation
burglary requirres a breaking and ______ of the dwelling of another at nighttime, with the intent of committing a ________therein
entering
felony
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
knowledge
intent
conspiracy at common law requires an _______, the intent to agree, and the intent to __________ (in some jdx, an overt act)
agreement
commit the underlying crime
Both people must be capable of consenting to the offence in which they are agreeing
solicitation is a specific intent crime that involves ______ someone to commit a crime, with the _______ that the crime be committed
asking
intent
A person is guilty of solicitation if he __ or encourages another to commit a crime with the ____ that the crime takes place
requests
intent
to be guilty of attempt, one must _____ to commit the target crime and take ___, BEYOND mere preparation in committing that crime
intend
substantial steps
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 ____
substantial step
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
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
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
intent to kill
great bodily harm
unjustifiable
(depraved)
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
cool and dispassionate
Since first degree murder is based on premeditation and this requires a _______ intent, this can be NEGATED by the defense of _________
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
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
adequate provocation
if the defendant acted with criminal negligence, then that is ______ manslaughter
involuntary
involuntary manslaughter is the ____killing of another person as a result of _____ or reckless conduct
unintentional
criminal negligence
what is the difference between depraved heart murder and involuntary manslaughter?
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
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 ___
unlawful act
Depraved heart murder at common law involves a high risk of death while involuntary manslaughter involves only a ______ risk
substantial
larceny is the trespassory taking and carrying away with the intent to _____ at the time you TOOK IT
without consent
PERSONAL PROPERTY (not real)
permanently deprive
larceny by trick is when the defendant intentionally makes a ______ of material fact to obtain ____ (but not title) of personal property of another
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.
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
title
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
subjectively believed
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
lawful possession
defense
minor employee = no lawful possession
high level employee = lawful possession
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
threat of force
the mens rea for attempt is that the D must have the _____ to complete the crime
specific intent
the mens rea for conspiracy is that the D must have the _______ to enter into the agreement + accomplish its objectives
specific intent
mens rea for solicitation is that there must be a _____ that the crime be committed
specific intent
for attempt, under the MPC/ majority rule, there must be a “substantial step” that is _____ with the criminal purpose
strongly corrobative
for attempt, under common law, the actus reus is satisfied if the D gets “_____” to committing the crime
“dangerously close”
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)
overt act
NOTE: an overt act is nto required at common law
the actus reus for solicitation is that D requests, encourages, advises, or ___ that someone commit a crime
commands
is attempt merged with the completed crime?
Yes. Cannot be convicted of both attempt and the completed crime
Does conspiracy merge with the completed crime?
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
is withdrawal a defense to conspiracy?
generally no. It is not a defense BUT a valid withdrawal will cut off liability for any crimes committed after the withdrawal
Is solicitation merged with the completed crime?
Yes. Cannot be convicted of solicitation and the completed crime
is factual impsosibility and withdrawing defenses to incoate crimes?
no
The defense of self defense is availabel if the D reasonably believed that force was ___ to avoid the ______ use of unlawful force by another
necessary
imminent
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
defect of reason
know; wrongfulness
quality
voluntary intoxication is a defense to ____crimes ONLY IF it negates the ______
specific intent; specific intent
*involuntary intoxication is treated the same as insanity
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
fact
reasonable; fact
fact
Generally, mistake of ____ is NOT a defense (even if relying on your lawyer!). Some narrow exceptions
law
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
necessary
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
imminent
Can duress be a defense to homicide?
nope
the prosecution must prove every element of a crime beyond ____
The defendant may be required to prove any ___
a reasonable doubt
affirmative defenses
If you knew or should have known there were people there, you were acting ____
recklessly (depraved heart)
if you did NOT know or should have known that people were present, you were acting ___
negligently (involuntary manslaughter)
Russian roulette
depraved heart
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
negligently
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
manslaughter
hypo talking about having lots of people to yoru house to watch ball game… sometime dies
depraved heart murder
guilty b/c acted recklessly
guilty b/c jon knew someone could have been killed
involuntary manslaughter questions will involve
neligence
“but for, reasonable care, proximate cause”
adequate provocation - look for one extreme or the other.
voluntary manslaughter
in state green, murder in the first degree is the “intentional killing of another”
specific intent
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)
pick what facts tell you
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
voluntary manslaughter
if you see a parent negliecting care of child due to religious reasons, and the kid dies. That is _____
involuntary manslaighter
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
- valid warrant
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)
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
What are the 6 excdeptions to the warrant requirement under the 4A?
ASPACE
- Automobile exception
- Search incident to a lawful arrest
- Plain view
- Administrative search
- consent
- Exigent circumstances
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
probable cause
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
wingspan
trunk
Three types of administrative searches:
- offivers searching arrestees and impounded vehicles
- public school officials can search students and their personal effects upon reasonable suspicion,
- random drug testing permitted for public school children involved in ANY extracirricular
if someone with actual or apparant authority gives ___ voluntarily to search, the officer may search the areas to which they ____ to
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
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
hot pursuit
probable cause
likely to disappear
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
imminently apparant
the 5A is the privilege against _____
self incrimination
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
is impaneled and sworn in a jury trial
bench
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
same offense
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)
NO it does not apply to separate soverigns
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
empaneled
first witness
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
same offense
The 6A gives D a fair trial and right to _____
counsel
Under the _____, the jury pool must represent a cross-section of the community
6A
Does the jury itself have to be diverse?
no
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 _____
deficient
but for
different
The ___ prevents against cruel and unusual punishment
8A
The 5A contains a right to remain silent and the right to ____. This right attaches whenever there is a ____
counsel
custodial interrogation
Under 5A, the police cannot interrogate a suspect who is IN CUSTORY without ___ or ______ (exception: public saftey)
consent
waiver
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
impeachment
A waiver of one’s miranda rights mutst be ____, intelligent, and _____
knowing
voluntary
The right to remain silent must be expressed explicitly and _____
unequivocally
The 6A right to counsel attaches when D is ____
formally chargedt
the 6A right to counsel attaches when D is formally and applies to all _____ of te proceedings thereafter
critical stages
A police cannot ______ an incriminating statement after formal charges have been filed unless D has counsel or waives his rights
deliberatly elicit
This is offense specific
A 6A confession is excluded in the prosecutor’s case in chief but MAY be used for_____
impeachment
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 _____
photo identification
pre-charge
charged
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
exculpatory
reasonable probability
the constitution requires UNANIMOUS VOTE when only a _____ person jury is used
six
if an officer lies to someone to try and get their consent to enter their home, that is NOT a violation of ___
4A
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 _____
plain view
suppressed
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
exigent cirumstances
destroyed
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.
appear
A person is “in custody” when under formal arrest or restraint on freedom of movement of the degree associated with a ___
formal arrest
parloees DO still have their ______ rights
5A
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
admissible
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
testimonial
a stop, frisk, and questioning are permissible if cops have ____ for it
reasonable suspicion
Miranda warnings are NOT required for _____
Terry stops
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
substantial
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
imminent infliction of death
duress cannot be a defense to ____
intentional homicide
the 5A provides the right to be free of double jeapordy for the ____
same offens
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 _____
proof of
an additional element
does not require
both crimes
The ____of the 14A requires in all criminal cases that the state prove GUILT beyond a ____ doubt
DPC
reasonable
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 ______
beyond a reasonable dount
the sixth amendment provides the right to ____-
trial by jury
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 ___
beyond a reasonable doubt
the Ds right to jury trial is violated if the ____ makes the determination that additional facts were proved
judge
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
informant
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
incriminate himself
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:
solicitation
conspiracy, attempt, solicitation
specific intent crimes
intoxication is NOT a defense to ____ crimes
reckless
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
reasonable mistake
a r___ means that basically, if the facts were as you believed themt o be, then the conduct would have been lawful
reasonable mistake
what type of mistake is a defense to malice crimes?
only REASONABLE MISTAKES
for general intent crimes, only mistakes that are ____ will be a defense
reasonable
DEFENSES TO CRIMES
MPC standards
PKNR
Purposefully
Knowingly
Recklessly
Negligently
McNaughten =
Severe mental illness + not understanding that ___
what you are doing is WRONG
irresistable impulse test (minority of states) says that
even though the D knows the act is wrong, his MENTAL defect gives him an overwhelming urge to commit the crime anyway
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
product
escape liability
The MAIN DIF b/w MPC and M’Naighten test is whether you udnerstood it was ____ or not
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
McNaughten = My Dog Nibbles Kale
McNaughten Do Not Know
McNaughten = you did not know what you were doing
MPC = you knew but you could not ____ your conuduct to the law
conform
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)
believe
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
retreat first
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)
SHOULD have been reported
can you be punished by BOTH the STATE and FEDERAL government for the SAME ACT without violating double jeapordy?
yes
