Crim / Crim Pro

Question 1

Common Law Murder

Answer 1

At common law, murder is the killing of another human being with malice aforethought. Malice aforethought can be shown by an intent to kill, intent to commit serious bodily injury, depraved heart, and via the felony murder rule.

Question 2

Depraved Heart / Wanton Reckless Disregard

Answer 2

A defendant can be convicted of common law murder if he acted with reckless disregard for human life.

Question 3

Felony Murder Rule

Answer 3

A defendant can be convicted of CL murder pursuant to the felony murder rule (FMR) if the killing occurred during the commission of an inherently dangerous felony (“BARRK”).

Question 4

First Degree Murder

Answer 4

First degree murder is confided / statutory murder that is committed with premeditation and deliberation. This requires a specific intent to kill in addition to “premeditation and deliberation.” Additionally, modern first degree murder statutes include the felony murder rule.

Question 5

Second Degree Murder

Answer 5

Second degree murder is codified / statutory murder that is committed without premeditation and deliberation. It typically includes those killings that occur when the intent is not to kill but to commit serious bodily injury and depraved heart murders.

Question 6

Voluntary Manslaughter

Answer 6

Voluntary manslaughter is a killing that would be murder but for the existence of adequate provocation. Provocation is adequate if there is a sudden and intense passion in the mind of an ordinary person that would cause him/her to lose control; defendant was in fact provoked; there was not sufficient time for cooling off; and the defendant did not in fact cool off between the provocation and the killing.

Question 7

Misdemeanor Manslaughter

Answer 7

Misdemeanor manslaughter is murder committed during a misdemeanor.

Question 8

Criminal Negligence

Answer 8

If a killing occurs due to the gross negligence of the defendant, the defendant will be found guilty of involuntary manslaughter.

Question 9

First Degree Murder (premeditation and deliberation)

Answer 9

If the defendant made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even if only for a very brief period, it is first degree murder.

Question 10

Fourth Amendment: Search and Seizure

Answer 10

The Fourth Amendment protects citizens against unreasonable searches and seizures. The Fourth Amendment is applicable to the states via the Due Process Clause of the Fourteenth Amendment.

Question 11

Government Conduct (4th Amendment)

Answer 11

For the defendant to assert a Fourth Amendment challenge, he must show government conduct. To establish government conduct, defendant must show that the police/government were involved in the search and seizure.

Question 12

Reasonable Expectation of Privacy (4th Amendment)

Answer 12

For defendant to assert a Fourth Amendment challenge, he must show a reasonable expectation of privacy.

Question 13

Warrant Requirement

Answer 13

A valid warrant requires that it be issued: (1) based on probable cause (PC) that seizable material or evidence can be found at the premises to be searched; (2) by a neutral and detached magistrate; and (3) with specificity regarding the place to be searched and its items to be seized.

Question 14

Fruits of the Poisonous Tree (4th Amendment)

Answer 14

Generally, not only must illegally obtained evidence be excluded, but also all evidence obtained or derived from the expatiation of that evidence. The courts deem such evidence the tainted fruit of the poisonous tree.

Question 15

Search Incident to Lawful Arrest (4th Amendment)

Answer 15

Upon a lawful arrest based upon PC, the police may contemporaneously search a person and areas within his wingspan. The police may also make a protective sweep of the area of they believe accomplices may be present.

Question 16

Hot Pursuit

Answer 16

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling.

Question 17

Evanescent Evidence

Answer 17

Police may seize without a warrant evidence likely to disappear before a warrant can be obtained.

Question 18

Consent (4th Amendment)

Answer 18

A warrantless search is valid if the police have voluntary consent. Knowledge of the right to withhold consent is not a prerequisite to establishing voluntary consent. The scope of the search may be limited to the scope of the consent, but generally it extends to all areas to which a reasonable person under the circumstances would believe it extends.

Question 19

Search Incident to Incarceration / Booking Search

Answer 19

Police officers are allowed to conduct an inventory search of arrestees upon being booked pursuant to established department procedure.

Question 20

Stop and Frisk

Answer 20

A police officer may stop a person without PC for arrest if the officer has an articulable and reasonable suspicion of criminal activity. If the officer reasonably believes the person may be armed and presently dangerous, the officer may conduct a protective frisk of the detainee’s out clothing to search the weapons. An officer may reach into the detainee’s clothing if the officer reasonably believes based on plain feel there is a weapon or contraband; but the officer cannot manipulate clothing to get a better feel on the item.

Question 21

Plain View

Answer 21

The police may make a warrantless seizure when they (1) are legitimately on the premises; (2) discover evidence, fruits, or instrumentalities of a crime or contraband; (3) see such evidence in plain view; and (4) have PC to believe the item is evidence, contraband, or a fruit or instrumentality of a crime.

Question 22

Exigent Circumstances

Answer 22

Police may enter premises without a warrant to address emergencies that could affect health or safety.

Question 23

Automobile Exception

Answer 23

If the police have PC to believe that a vehicle is contraband or contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the items for which they had PC to search.

Question 24

Inventory / Impound Search

Answer 24

The police are allowed to conduct an inventory search of arrestees’ vehicle upon being impounded pursuant to established department procedure.

Question 25

Police Checkpoint

Answer 25

Police are allowed to set up roadblocks to stop cars without individualized suspicion that the driver has violated some law. To be valid, it appears that such roadblocks must: (1) stop cars on the basis of some neutral, articulable standard; and (2) be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility. However, police may not set up a roadblock to check for illegal drugs since this purpose is to detect evidence of ordinary criminal wrongdoing unrelated to use of cars or highway safety.

Question 26

Fifth Amendment–Confessions

Answer 26

The Fifth Amendment, which is applicable to the states via the Due Process Clause of the Fourteenth Amendment, guarantees a freedom against compelled self-incrimination. To protect this right, the Supreme Court requires police to inform detainees of their rights via Miranda warnings prior to any custodial interrogation. Statements obtained as a result of a custodial interrogation conducted without giving warnings generally are inadmissible.

Question 27

Custody

Answer 27

Determining whether custody exists is a two-step process. First, the initial step (sometimes called the “freedom of movement test”) requires the court to determine whether a reasonable person, under the circumstances, would feel free to leave. All the circumstances surrounding the interrogation must be considered. Second, if an individual’s freedom of movement was curtailed, the next step considered whether the environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.

Question 28

Interrogation

Answer 28

“Interrogation” refers not only to express questioning, but also to any words actions on the part of police officers that the officers should know are reasonably likely to elicit an incriminating response.

Question 29

Fourteenth Amendement

Answer 29

For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances. A statement will be involuntary only if there is some official compulsion.

Question 30

Identifications - Sixth Amendment Right to Counsel

Answer 30

Under the Sixth Amendment, a suspect has a right to the presence of an attorney at all critical stages of a criminal prosecution after formal proceedings have begun, including any post-charge line-up or show-up. However, the suspect does not have a Sixth Amendment right to have counsel present during photo identification.

Question 31

Identifications - Due Process

Answer 31

A line-up or show-up violates due process when the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification. To meet this difficult test, the identification must be shown to have been extremely suggestive.

Question 32

Voluntary Intoxication

Answer 32

Voluntary Intoxication is the self-induced intentional taking of a substance known to be intoxication without duress. Voluntary intoxication evidence may serve to negate specific intent.

Question 33

Insanity - M’Naughten Rule (“head” test)

Answer 33

Under the traditional M’Naughten rule, an accused is entitled to an acquittal if the proof establishes that a disease of the mind cause a defect of reason such that the defendant lacked the ability at the time of his actions to either (1) know the wrongfulness of his actions; or (2) understand the nature and quality of his action.

Question 34

Insanity - Irresistible Impulse Test (“shoulders” test)

Answer 34

Under the irresistible impulse test, an accused is entitled to an acquittal if he can show that he was unable to (1) control his actions; or (2) to conform his conduct to the law.

Question 35

Insanity - Durham Test (“products” test)

Answer 35

The Durham Test provides that an accused is entitled to an acquittal if he can establish that his crime was the product of mental disease or defect.

Question 36

Insanity - ALI / MPC Test (“shampoo” test)

Answer 36

The American Law Institute or Model Penal Code test holds that an accused is entitled to an acquittal if the proof shows that he suffered from a mental disease or defect and as a result he lacked the “substantial capacity” to either (1) appreciate the criminality of his conduct; or (2) conform his conduct to the requirements of the law.

Question 37

Diminished Capacity

Answer 37

The partial defense of diminished capacity holds that mental illness short of insanity may be asserted to a specific intent crime to mitigate an accused’s culpability or reduce the charge to a lesser offense.

Question 38

Solicitation

Answer 38

Solicitation requires inciting, counseling, advising, urging, or commanding another to commit a crime, with the specific intent that the person solicited commit the crime. It is not necessary that the person solicited respond affirmatively. Under the doctrine of merger, the solicitor cannot be punished for both the solicitation and the target offense.

Question 39

Conspiracy

Answer 39

A conspiracy is an agreement between two or more persons to accomplish some criminal or unlawful purpose, or to accomplish a lawful purpose by unlawful means. It requires: (1) an agreement between two or more persons; (2) an intent intent to enter into the agreement; and (3) an intent by at least two persons to achieve the objective of the agreement. A majority of states require an overt act in furtherance of the conspiracy. No express agreement is required; it may be inferred from the joint activity of the parties.

Question 40

Conspiracy (merger)

Answer 40

Traditionally, if the crime was completed then the conspiracy merged with the target offense, and the defendant could not be convicted of both the conspiracy and the target offense. Modernly, however, they can be convicted of both the conspiracy and the crime they committed pursuant to the conspiracy.

Question 41

Burglary

Answer 41

At common law, burglary is the breaking and entering of a dwelling of another at nighttime with the intent to commit a felony therein. Modernly, there does not have to be a breaking, the structure need not be a dwelling and the crime does not have to be committed at nighttime.

Question 42

Larceny

Answer 42

Larceny is the trespassory taking and carrying away of tangible personal property of another with the intent to permanently deprive a person of his interest in the property. A taking is trespassory if taken without consent or by consent induced by fraud.

Question 43

Robbery

Answer 43

Robbery is the taking of personal property of another from the other’s person or presence by force or intimidation with the intent to permanently deprive him of it.

Question 44

Battery

Answer 44

Battery is an intentional, unlawful application of force to the person of another resulting in either a bodily injury or an offensive touching. Battery is a general intent crime, and thus there does not have to be specific intent to cause bodily injury of an offensive touching.

Question 45

Co-Conspirator Liability

Answer 45

A conspirator may be held liable for crimes committed by other conspirators if the crimes were committed in furtherance of the objectives of the conspiracy and were foreseeable.

Question 46

Accomplice Liability

Answer 46

Common law distinguished between principals in the first and second degree, and accessories before and after the fact. Modern statutes, however, have abolished these distinctions and now hold that all parties to the crime (except accessories after the fact) can be found guilty of the offense if the accomplice acts with the intent to aid, counsel, or encourage the principal before or during the commission of the crime.

Question 47

Accomplice Liability – Accessory After the Fact

Answer 47

An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, to help the felon escape arrest, trial, or conviction. The crime committed by the principal must be a felony and it must be completed at the time aid is rendered.

Question 48

Receipt of Stolen Property

Answer 48

Receipt of stolen property requires a showing that the defendant received possession and control of stolen personal property, known to have been obtained in a manner constituting a criminal offense by another person, with the intent to permanently deprive the owner of his interest in it.