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Selected Topics Midterm > Crim & Crim Pro > Flashcards

Crim & Crim Pro Flashcards

1
Q

Larceny

Theft Crime

A
  1. Trespassory taking and carrying away of
  2. Tangible personal property of another
  3. With the intent to permanently deprive the other of his interest in the property

  • trespass is not necessarily physical trespass, but taking of property without consent of the owner
  • Carrying away merely means to remove the item from where it was—even by an inch
  • intent to permanently deprive must be formed at or before the time of the taking, except for a continuing trespass
  • Larceny is a lesser-included offense—a defendant
    cannot be convicted of both Robbery and Larceny.
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2
Q

Embezzlement

Theft Crime

A
  1. Fraudulent conversion
  2. Of property of another
  3. By a person in lawful possession of that
    property

A defendant must intend to defraud the owner for an otherwise tortious conversion to become embezzlement—for example, by falsely claiming the money embezzled by the accused was paid to creditors

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3
Q

False Pretenses

Theft Crime

A
  1. Obtaining TITLE
  2. To the property of another
  3. By an intentional or knowing false statement of PAST or EXISTING fact
  4. With the intent to defraud the other
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4
Q

Larceny by Trick

Theft Crime

A
  1. Obtaining POSSESSION
  2. To the property of another
  3. By an intentional or knowing false statement of PAST or EXISTING fact
  4. With the intent to defraud the other

If the victim gives money for a purpose, the victim does not part with title unless money is used for that purpose, so money falsely obtained and used for another purpose is larceny by trick and not false pretenses.

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5
Q

Robbery

Theft Crime

A
  1. Taking of personal property of another
  2. From the other’s person or presence
  3. By force or threat of force
  4. With the intent to permanently deprive the other of his interest in the property

Larceny is a lesser-included offense—a defendant
cannot be convicted of both Robbery and Larceny.

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6
Q

Receipt of Stolen Property

Theft Crime

A
  1. Receiving possession and control of stolen property;
  2. known to have been obtained by use of a crime;
  3. by another person;
  4. with the intent to permanently deprive the true owner of the property.
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7
Q

Forgery

Theft Crime

A
  1. Making or altering a false writing
  2. Of apparent legal significance
  3. With intent to defraud
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8
Q

Extortion

Theft Crimes

A
  1. Obtaining of property or other thing of value
  2. By means of oral or written threats

  • Threat need not be of immediate harm
  • Property need not be taken from victim’s immediate presence
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9
Q

Burglary

Crimes Against Habitation

A

(1) Breaking and
* use of any force, however slight to gain entry without consent

(2) Entering

(3) Of the dwelling of another
* all buildings within the curtilage of the house

(4) In the nighttime

(5) With the intent to commit a felony therein

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10
Q

Arson

Crimes Against Habitation

A

malicious burning of the dwelling of another

Burning = Charring, not scorching

For bar purposes, all types of malicious burning
(house burning, arson to defraud) are considered
arson

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11
Q

Criminal Assault

Crimes Against the Person

A

Types:
* The attempt to commit a battery OR
* Intentional creation, by other than mere words, of a reasonable apprehension in the mind of the
victim of imminent bodily harm

attempted = specific intent
intentional = general intent

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12
Q

Criminal Battery

Crimes Against the Person

A
  1. Unlawful application of direct or indirect force
  2. To the person of another
  3. Resulting in
  4. Bodily injury or an offensive touching
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13
Q

Aggravated Battery

Crimes Against the Person

A
  1. Unlawful application of direct or indirect force
  2. To the person of another
  3. Resulting in
  4. Bodily injury or an offensive touching
  5. Use of deadly weapon, serious bodily injury, or victim is a child, woman, or police officer
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14
Q

Mayhem

Crimes Against the Person

A

Dismemberment (removal) or disablement of body part

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15
Q

Kidnapping

Crimes Against the Person

A

(1) The confinement of a person,

(2) That also involves either:
* movement of the victim or
* concealment of the victim in a secret place

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16
Q

Aggravated Kidnapping

Crimes Against the Person

A

(1) The confinement of a person,

(2) That also involves either:
* movement of the victim or
* concealment of the victim in a secret place

(3) Purpose is for:
* ransom
* committing other crimes
* offensive (committing a sexual offense toward the victim)
* child stealing (leading, taking, enticing, or detaining a child with the intent to keep or conceal the child from a parent or guardian)

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17
Q

Rape

Crimes Against the Person

MBE

A

(1) The unlawful carnal knowledge
* Unlawful=without consent
* NO CONSENT if by: Force, Threat, Victim incapable of consent—drugs, alcohol, mental capacity, unconsciousness

(2) of a woman
(3) by a man who is not her husband

Modern statutes eliminate element 3

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18
Q

Statutory Rape

Crimes Against the Person

MBE

A

Carnal knowledge of a person under the statutory age of consent

  • Strict liability crime
  • All that matters is age of victim, not whether defendant knows victim’s age or whether the victim consents
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19
Q

Murder

Start with SECOND degree, THEN FIRST degree UNLESS asked otherwise

If facts lend itself, then discuss voluntary manslaughter

A

(1) Unlawful killing of a human being
(2) With malice aforethought:
* intent to kill
* intent to inflict great bodily injury
* reckless indifference to the unjustifiable high risk to human life (abandonded and malignant heart) OR
* felony-murder (killing committed in the course of the commission of a felony)

Element 1:
* need to write if killing was justified
* “the unlawful killing” element includes the concept that the accused caused the death, through the direct killing, of the victim. But if the accused did not directly cause the death, you must then discuss causation as part of unlawful killing—was the victim’s death the foreseeable result of defendant’s conduct?

Element 2:
* need to list all 4 but only discusss the ones that are triggered

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20
Q

Felony Murder

A
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21
Q

Second Degree Murder

A

All murder is second-degree murder unless committed with premeditation and deliberation

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22
Q

First Degree Murder

A
  1. Premeditation–act committed after a period of
    reflection—which can be brief.
  2. Deliberation—cool and dispassionate
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23
Q

First Degree FMR

A

on enumerated list:
* Burglary
* Arson
* Robbery
* Rape
* Kidnapping
* Train
* Robbery
* anything else listed in statute

For felony-murder, first decide whether the killing was caused during a felony, and determine there was at least second degree murder. Then, if the felony is on the list, discuss that it is raised to first degree murder.

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24
Q

Second Degree FMR

A

killings caused during all other non-enumerated felonies

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25
Q

Voluntary Manslaughter

A

(1) intentional killing of a human being

(2) with adequate provocation:
* it be one that would arouse sudden and intense passion in the mind of an ordinary person so as to cause loss of self-control;
* defendant is in fact provoked;
* insufficient time for passions of a reasonable person to cool; and
* defendant in fact did not cool off.

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26
Q

Involuntary Manslaughter

A

Involves either:
* Criminal Negligence (greater deviation from
standard of care), or
* A killing caused by an unlawful act not a felony (misdemeanor)

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27
Q

Attempt

A
  1. the intent to commit a specific crime and
  2. the commission of an overt act in furtherance of that crime

Majority rule: substantial step in a course of conduct toward
committing the crime

Traditional rule: act that is in dangerous proximity to completing the crime

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28
Q

Solicitation

Inchoate Crime

A
  1. Defendant incites, counsels, advises, induces, urges, or commands, another person to commit a crime
  2. with the intent that the crime be
    committed by that person
29
Q

Accomplice Liability

Inchoate Crimes

A
  1. Defendant encourages or assists
  2. another person who commits a crime
  3. with the intent to promote or facilitate the commission of the crime.

Defendant liable for all foreseeable acts/crimes.

30
Q

Conspiracy

Inchoate Crimes

A
  1. An agreement between or among two or more persons to commit a crime;
  2. an intent to enter into the agreement; and
  3. an intent to achieve the objective of the agreement.

most states require an overt act in furtherance of the conspiracy, which can be mere preparation.

  • If both actors have criminal intent, use the bilateral theory of conspiracy (requiring an agreement between or among all the conspirators to commit the underlying crime)
  • If one actor is an informant or undercover police officer, also discuss the unilateral theory of conspiracy under the MPC (which only requires the defendant to have had the intent to conspire and commit the underlying crime)
31
Q

Accessory After the Fact

Inchoate Crimes

A
  1. One who receives, relieves, comforts or assists another, knowing that he has committed a felony
  2. in order to help the felon escape arrest, trial, or conviction

mere comfort is not sufficient, unless it is with the purpose of help the felon escape arrest, trial, or conviction.

32
Q

Self Defense

Defenses to Crimes

A

A person may use deadly force if:
1. he is without fault (did not initiate the assault or provocation);
2. he is confronted with unlawful force; and
3. he reasonably believes he is threatened with imminent death or great bodily harm

DUTY TO RETREAT
* majority = no duty to retreat
* minority = requires retreat only if it can be done in complete safety, and does not require retreat from the home or business.

33
Q

Imperfect Self Defense

Defense to Crimes

A

If the defendant’s belief as to the threat is unreasonable, so that the third element of self-defense is not met, then a** finding of imperfect self-defense will mitigate murder to voluntary manslaughter.**

34
Q

Defense of Others

Defense to Crime

A

Defendant must reasonably believe the other person is legally entitled to use force and may only use reasonable force to prevent it.

reasonable belief, discuss whether the other person could have asserted self-defense, using the elements of self-defense.

35
Q

Necessity

Defense of Crimes

A

Defendant must have a reasonable belief that their criminal conduct was necessary to avoid a greater harm to society.

defense is not available if defendant is at fault is creating the choice. Causing the death of others is never objectively reasonable.

36
Q

Duress

Defense to Crime

A

requires a threat, which defendant reasonably believes threatens death or great bodily harm.

NOT a defense to HOMICIDE (murder and manslaughter) crimes

37
Q

Mistake of Fact

Defense to Crime

MBE

A

general intent and malice crimes, the mistake must be reasonable and must negate the required mental state for a crime

specific intent crimes, the mistake need not be reasonable

38
Q

Intoxication

Defense to Crimes

A

VOLUNTARY
ONLY defense to specific intent crimes:
* 1st Degree Murder
* Burglary
* Larceny
* Robbery
* All attempt crimes

INVOLUNTARY
defense to ALL crimes
* It may be treated as insanity, in
which case you discuss the four types of insanity
defenses

39
Q
A

M’Naghten Rule
* defendant lacked the ability to either know the wrongfulness of his actions** or understand** the nature and quality of his actions

Irresistible Impulse
* defendant is unable to control his actions or conform his conduct to the law

Durham Rule
* but for causation—if the crime was a product of the mental disease or defect, this requires an acquittal

ALI/MPC Test
* As a result of mental disease, defendant lacked substantial capacity to either appreciate the criminality of his conduct or to conform his conduct to the law

if defendant demonstrates any of these defenses, defendant will be found not guilty by reason of insanity. All of them, however, do require evidence of a mental disease.

identify each one and just have brief sent, don’t need to go in detail

40
Q

4th Amend

Crim Pro

A

(1) All claims of Fourth Amendment violations require government conduct.

(2) Under the Katz test for standing to contest a search, there must be a reasonable expectation of privacy in the thing or place to be searched:
* is there a subjective expectation of privacy (did the Defendant actually expect privacy?);
* does society objectively consider there to be privacy in the thing or place to be searched?

(only discuss if there is a stop)
(3a) To justify a stop and frisk, under Terry, police must show a reasonable suspicion, supported by articulable facts, of criminal activity. A frisk must be just that—a pat down of the outer clothing to determine if the suspect is carrying a weapon.

(3b) Police may set up roadblocks to stop cars without individualized suspicion that the driver has violated the law if:
* cars are** stopped on a neutral, articulable standard** (every nth car); and
* the roadblock is designed to serve purposes closely related to a particular problem related to automobiles (checking sobriety or that all the occupants are legal).

(4) Search/Warrant
A reasonable search requires a warrant, unless exception. Warrant must describe the place to be searched and the objects of the search with reasonable particularity and must be issued by a neutral and detached magistrate

(5) Confession

(6) Pretrial Identifications

In analyzing 4th amendment issues surrounding a stop, search, and/or arrest, follow the following road map. Thus, always think and proceed in terms of the natural order of criminal process: government conduct; standing to object to the search; stop; arrest; search; confession; pretrial and/or trial identification.

searches in an OPEN AREA (alleys and common areas) do not violate 4th Amend

41
Q

Knock and Announce

Execute Search Warrant

A

Officer executing a search warrant must knock and announce their authority and purpose and await admittance for a reasonable time (15-20 secs) before using force UNLESS officer has reasonable suspicion, based on facts, that knocking and announcing would be dangerous and futile or would inhibit the investigation

42
Q

Consent

Exception to Warrant Requirement

A

Was consent knowing, valid and intelligent; is consent** given by someone
with authority or whom police reasonably believe has authority?**

  • Co-occupant has authority to allow search in common areas—accused assumes that risk
  • Apartment manager cannot give consent to search a tenant’s rooms
  • Absent a true emergency involving someone’s health or evidence of imminent suicide, police cannot enter a residence under a “community caretaking” exception
43
Q

Automobile

Warrant Exception

A

Warrant is not required if there is probable cause that there are seizable items or contraband in the car

EXCEPTION
warrant needed if automobile is within the curtilage of a home

44
Q

Plain View

Warrant Exception

A

In plain view of the area in which the individual was arrested

45
Q

Search Incident to Lawful Arrest

Warrant Exception

A

(1) was there a lawful arrest
Lawful arrest requires a warrant, unless:
* the officer see defendant committing a felony or has probable cause that defendant is committing or has committed a felony, or
* see the defendant committing a misdemeanor

If YES, then search can be made
1. if it takes place immediately after the arrest
2. within wingspan of arrestee

However, a search is not permitted once the arrestee is secured and cannot access the interior of the vehicle (since there is no longer any danger to police from anything within the arrestee’s wingspan), unless it is reasonable for the officer to believe that evidence of the offense for which the arrestee has been arrested might be found in the vehicle.

46
Q

Protective Sweep

Warrant Exception

A

Facts indicate probable cause that an accomplice may be
present

47
Q

Inventory Search

Warrant Exception

A

Police may conduct an inventory search of a legitimately arrested person when he is booked pursuant to established department procedure.

48
Q

Exigent Circumstances

Warrant Exception

A

is there a threat that, if the time is taken to obtain a warrant, the evidence will be lost or destroyed?

Law enforcement cannot create the exigent circumstances through a Fourth Amendment violation.

49
Q

Emergency Aid Exception

Warrant Exception

A

emergencies that objectively threaten health or safety, such as where police see someone injured or threatened with injury.

50
Q

Inevitable Discovery

Warrant Exception

A

Police would have discovered the evidence even if
they had not acted illegally

51
Q

Independent Source

Warrant Exception

A

Evidence is admissible if the prosecutor can show it was obtained independent of the original illegal conduct.

52
Q

Exclusionary Rule/Good Faith Exception

Remedy to 4th Amend Violation

A

The usual remedy for a 4th Amendment violation is the exclusion of the evidence, unless the prosecution shows the police acted under a good faith belief they were acting lawfully.

53
Q

Impeachment

Remedy (not good) to 4th Amend Violation

A

if a defendant testifies falsely at trial, evidence obtained in violation of the 4th Amendment can be introduced and used to impeach the defendant.

54
Q

Confession

14th Amend (due process)

A

Was the confession voluntary (not coerced), looking
at the totality of the circumstances

55
Q

Confession

6th Amend Right to Counsel

A

Under the 6th Amendment, there is a right to counsel at all critical stages once adversary judicial proceedings have begun, so this 6th amendment right to counsel only attaches after the accused has been charged—not when they have been stopped or arrested.

56
Q

Confession

5th Amend (right to counsel and self-incrimination)

A

Under the 5th Amendment right to counsel and privilege against self-incrimination, Defendant must be given Miranda warnings (the right to counsel and right to remain silent) before any custodial interrogation.
* Custody = the seizure or other situation where defendant is not free to leave or reasonably doesn’t feel free to leave.
* Interrogation = any statement or conduct reasonably likely to elicit an incriminating response from the accused.

need to IRAC custodial interrogation

57
Q

Re-Initiation of Questioning

A

An accused may waive his rights to remain silent or to counsel after invoking the right, and thus initiate the resumption of questioning—but it must be the accused who initiates, not law enforcement.

Accused claims right to remain silent:
* Questioning may only be re-initiated after a
reasonable amount of time has passed, but only on
a separate crime

Accused claims right to counsel:
* Questioning may not be re-initiated absent
presence of counsel unless at the request of the
accused, unless the accused is first released into
the general prison population for at least 14 days
and re-Mirandized.

58
Q

Confession to Impeach

A

statements taken in violation of the 5th and 6th Amendments may be used to impeach the accused as a prior inconsistent statement—the statements or confessions may only be used to impeach, and not for their truth.

59
Q

Pretrial Identification

6th Amend Right to Counsel & 14th Amend

A

6th Amend
Under the 6th Amendment, there is a right to counsel at all critical stages once adversary judicial proceedings have begun, so this includes any post-charge lineup.

There is NO 6th Amendment right to counsel at a pre-charge lineup, or when the victim is looking at photographs to make a photo ID, and there is no 6th Amendment right to counsel at the fingerprinting stage.

This right is offense-specific—it only applies to the charged offense.

14th Amend
Under the Due Process Clause, the identification:
1. cannot be unreasonably suggestive; and
2. there cannot be a substantial likelihood of misidentification.

60
Q

Subsequent Identification

A

all fruits from unlawfully obtained evidence are regarded as “poisoned” by the former violation and must be excluded.

Thus, if a prior identification violates the 6th or 14th Amendments, any subsequent identification is also excluded.

However, if the in-court identification is not truly a poisoned fruit of the invalid identification, then it will not be excluded.

61
Q

Co-Defendant Confession

A

A co-defendant’s confession is admissible only if:
1. statements concerning the accused are redacted or
2. the co–defendant is subject to crossexamination

62
Q

Informants

5th and 6th Amend

A

5th Amend
Under the Fifth Amendment right to counsel at all custodial interrogations, Miranda warnings need not be given where the interrogation is by an informant who the defendant does not know is working for the police—even if the informant is in fact working for the police

6th Amend
this Sixth Amendment violation requires three things:
1. the government informant must be paid or promised something or otherwise be acting as a government agent—a purely voluntary snitch does not violate the Sixth Amendment right;
2. the defendant, as is true in all issues involving the Sixth Amendment right to counsel, must have been charged; and
3. the informant must actively ask questions designed to elicit statements regarding the charged crime—if the defendant simply volunteers a statement, that does not violate the Sixth Amendment, either.

63
Q

Right to Speedy Trial

A

To determine whether defendant has been denied
a right to a speedy trial consider:
* Length of the delay,
* Reasons for the delay,
* Whether defendant asserted his right to a speedy trial, if defendant requested the delay, cannot claim a denial of speedy trial, and
* Prejudice to the defendant

64
Q

Bail

A

Accused is entitled to bail, in some appropriate amount, in non-capital cases, in an amount that is designed to make it unlikely that defendant will flee

65
Q

Pleas

A

Must be VOLUNTARY AND INTELLIGENTLY MADE

Judge must advise defendant personally of:
1. nature of the charge,
2. critical elements of the offense,
3. maximum possible penalty and whether there are any mandatory minimum penalty,
4. right to plead not guilty, and that by pleading guilty defendant waives right to a trial

MUST appear on record

66
Q

Ineffective Assistance of Cousel

A

defendant must show that the attorney’s exercise of judgment and representation fell significantly below the reasonable standard of care and that, but for this failure, defendant would not have been convicted

67
Q

Right to Testify

A

The accused has a right to testify based on the 5th amendment due process right to a fair trial. An accused’s lawyer cannot prevent him from testifying.

68
Q

Right to Represent Self

A

On the request of the accused, the court must determine whether the request is knowingly and intelligently made, and whether the accused is competent to represent himself. This requires a determination that the accused has a factual and rational understanding of the proceeding. Even if a court makes such a determination, the court should appoint counsel to be present and be ready to assist the accused if needed and requested by the accused.

69
Q

Double Jeopardy

MBE

A

Right to be free of being tried more than once
for same crime

Exceptions:
* Hung Jury
* Mistrial
* Retrial (BUT NOT if attempted retrial is on more
serious offense)
* Breach of Plea Bargain

A defendant cannot be convicted of both the greater
offense and the lesser included offense (e.g., Robbery
and Larceny; Conspiracy and Solicitation; Murder and
Criminal Battery of the same victim)

NOT the same offense if each crime requires proof of an
additional element that the other crime does not require

Double Jeopardy DOES NOT APPLY to separate
sovereigns (different states; state v. Federal
prosecutions)

Selected Topics Midterm (5 decks)

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