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Bar prep vs2 > Crim Law > Flashcards

Crim Law Flashcards

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1
Q

Forgery

A

1) creating or altering;
2) a document of legal significance;
3) to be false;
4) with intent to defraud.

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2
Q

First Degree Murder

A

Killing of another that is deliberate and premeditated.

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3
Q

2nd degree murder

A

All other murders that do not meet the criteria for first degree murder.

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4
Q

Common law murder

A

Unlawful killing of another with malice aforethought.

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5
Q

Malice aforethought

A

May be determined in four ways 1) intent to kill; 2) intent to inflict great bodily injury; 3) reckless disregard of an extreme risk to human life (depraved heart), and 4) felony murder.

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6
Q

FMR

A

A felony murder is a killing that is committed during the course of a dangerous felony, to include, burglary, rape, robbery, arson and kidnapping.

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7
Q

Voluntary murder

A

Intentional killing with adequate provocation.

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8
Q

Adequate provocation occurs when

A

if the defendant was provoked (sudden intense passion causes them to lose control), a reasonable person would have been provoked, there was not enough time to cool off and the defendant did not cool off.

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9
Q

Involuntary manslaughter

A

Two types: a killing caused by criminal negligence or recklessness (criminal negligence requires a greater deviation from the reasonable person standard than what is required for civil liability), or if caused by an unlawful act, including in the course of a misdemeanor or in the course of a felony that does not qualify for a felony murder case.

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10
Q

M’Naghten test

A

a mental disease exists where the defendant is a) unable to know the physical nature or quality of their acts or b) unable to understand their act was morally wrong.

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11
Q

MPC Insanity test

A

mental disease where the defendant is a) unable to appreciate the criminality of conduct or b) unable to conform his actions to law. (M’Naghten and Irresistible Impulse Combined)

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12
Q

Irresistible impulse test

A

defendant’s mental illness made them a) unable to control their actions or b) unable to conform their actions to the law.

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13
Q

Durham test

A

unlawful conduct was the product of mental illness.

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14
Q

Confessions with mental diseases

A

A confession will be deemed voluntary even if the defendant who confesses suffers from a mental disease. Mental illness does not render a confession involuntary under the 14th Amendment.

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15
Q

Kidnapping

A

1) unlawful; 2) confinement of a person; 3) against that person’s will; 4) coupled with either movement or hiding of that person.

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16
Q

Solicitation

A

consists of enticing, counseling, advising, inducing, urging, or commanding another to commit a crime with the specific intent that the person solicited commits the crime. The offense is complete at the time the solicitation is made. It is not necessary that the person solicited agree to commit the crime or do anything in response.

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17
Q

Attempt

A

A person had the specific intent to commit a crime and took a substantial step sufficiently beyond mere preparation, however, fails to complete the crime. MPC requires a “substantial step.” Merges with the underlying crime.

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18
Q

Rape

A

The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without their consent.

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19
Q

4A

A

Under the 4th Amendment applicable to the states via the 14th, government action shall not violate people’s right to be secure against unreasonable searches and seizures. Acts by private individuals are not protected by the 4th Amendment.

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20
Q

4A reasonable expectation of Privacy

A

A person has a reasonable expectation to privacy where there is a physical intrusion by the government into a constitutionally protected area to obtain information. There is no reasonable expectation to privacy in things held out to the public, such as conversations. Courts have held that individuals have a reasonable expectation of privacy in that of which they own or possess. Overnight guests have this right to privacy. Owners of highly regulated industries have a lower expectation of privacy.

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21
Q

Seizure

A

Under the 4th Amendment a person is granted protection from unlawful government searches and seizures. A seizure is when a reasonable person believes they’re not free to leave.

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22
Q

Auto check points

A

Police may setup roadblocks to stop cars without reasonable suspicion when: 1) stops are made based on a neutral, articulable standard; 2) stops are designed to serve purposes related to a particular problem pertaining to automobiles and their mobility.

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23
Q

Government actions

A

The 4th Amendment limits government action, not the acts of a private party, unless the private party acts as an instrument or agent of the government.

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24
Q

Stop and Frisk

A

A police officer may stop and question a person if they have reasonable, articulable suspicion that criminal activity is afoot. This allows only a brief detention for questioning.

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25
Q

Stop and Frisk- a police officer may only stop and frisk a person if the police officer

A

1) has reasonable articulable suspicion; 2) that criminal activity is afoot; and 3) that the person is suspected of having a weapon. Under the plain feel doctrine, a police officer may only seize items he reasonably believes are contraband or a weapon during the frisk.

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26
Q

Reasonable suspicion

A

The minimum level of justification for detention, where an officer can show articulable facts that a crime has been or is being committed.

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27
Q

Probable cause

A

Exists if there are sufficient facts to lead a reasonable person to believe that a crime was committed and that the defendant committed the crime.

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28
Q

Search warrants

A

The 4th Amendment of the U.S. Constitution provides freedom from unreasonable searches and seizures. Thus, a police officer requires a warrant to conduct a search and to seize items, unless a valid exception applies.

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29
Q

Warrant requirements

A

Issue of a search warrant requires probable cause. The warrant must state with particularity the place to be searched and the items seized, and it must have been issued by a neutral and detached magistrate. There is no warrant required when arresting someone in a public place.

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30
Q

Warrant exceptions - Champed ASS SCAT

A

Community care taking

hot pursuit

Auto

Minor intrustion

Plain View

Exigency / Destruction of evidence

Seizure warrants

Arrest, Stop and Frisk, Seizure by deadly force

Search and Seizure

SILA, Consent, Admin, Terry stop

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31
Q

Tempoary detention

A

If police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts, they may stop a person for investigatory purposes.

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32
Q

Frisk

A

If police have reasonable suspicion a detainee is armed and dangerous, they may frisk detainee for weapons.

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33
Q

SILA

A

Police may search the person and area within their wingspan where a detainee could reach a weapon or destroy evidence.

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34
Q

Plain View- - Warrant exception

A

Police may seize evidence if observed in plain view, from a place the officer is lawfully permitted to be, and probable cause exists to believe the item is evidence of a crime or contraband.

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35
Q

Consent - Warrant exception

A

A defendant’s voluntary and intelligent consent to a search allows the search to be conducted without a warrant or probable cause.

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36
Q

Auto - - Warrant exception

A

The 4th Amendment does not require police to obtain a warrant to search any compartment of a vehicle if they have probable cause to believe it contains evidence of criminal activity.

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37
Q

Exigent Circumstances - - Warrant exception

A

A warrantless search is authorized when there is reasonable apprehension the delay required to obtain a warrant will result in immediate danger of evidence destruction, the safety of the officer or public, or a defendant is likely to flee before a warrant can be obtained. This allows for hot pursuit, where police can chase a suspect into a private dwelling.

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38
Q

Administrative Inventory Search- - Warrant exception

A

– A search of an arrestee’s property/impounded car after lawful arrest is valid as long as it is performed according to standardized criteria.

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39
Q

5A and Miranda

A

The 5th Amendment, as applicable to the states via the 14th, provides that no person shall be compelled in any criminal case to be a witness against themselves. A statement obtained during a custodial interrogation may not be used against a suspect unless the police inform the suspect of their Miranda Rights.

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40
Q

Exception to 5A and Miranda

A

Public Safety Exception

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41
Q

Public Safety exception

A

limited interrogation without Miranda warnings is allowed when police officers ask questions reasonably prompted by a concern for public safety or the safety of the officer.

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42
Q

Miranda rights attach only when

A

there is a custodial interrogation of suspect

43
Q

A person is in custody when they

A

reasonably believe they are not free to leave

44
Q

A person is subject to interrogation

A

when the police know or should know their conduct was likely to elicit an incriminating response.

45
Q

When invoking or waiving a miranda right

A

the statement must be clear and unambiguous.

46
Q

The defendant must know they are being interrogated by the government

A

in order for Miranda to apply.

47
Q

5th Amendment Right to Counsel – Once Miranda rights are invoked the police must stop questioning. However, a custodial interrogation may be reinitiated if:

A

(1) the suspect has been re-advised of their Miranda rights; (2) has provided a knowing and voluntary waiver; and (3) either (a) counsel is present; (b) the suspect initiates the communication; or (c) at least 14 days have passed since the suspect was released from custody.

48
Q

6A right to counsel

A

has the right to counsel in all criminal prosecutions (except State misdemeanor prosecutions that do not carry a risk of jail time) during all critical stages of the proceedings.

49
Q

when does the 6A right to counsel attach

A

once formal adversarial judicial proceedings have commenced and applies where incarceration may be imposed.

50
Q

Remember that the 6A right to counsel is

A

offense specific and applies to the charge formally changed with

51
Q

What may the PD not do with 6A r2counsel

A

Police may not use deception to elicit statements related to a crime. (Putting an informant in the same cell, even if they don’t ask questions, is a violation, evidence will be suppressed).

52
Q

6A - right to effective counsel

A

A claim of ineffective counsel requires the defendant show counsel was deficient, and but for the counsel’s errors the trial would have ended differently.

53
Q

6A confrotantion clause

A

The 6th Amendment, as applicable to the states via the 14th Amendment, gives a criminal defendant the right to confront witnesses against them. An out of court statement violates this right when 1) the statement is testimonial; 2) the declarant is unavailable; 3) the defendant did not have an opportunity to cross-examine the witness before trial.

54
Q

6A right to a speedy trial

A

The 6th Amendment guarantees a speedy trial, post-accusation. Factors considered include 1) length of delay; 2) reason for delay; 3) whether the defendant asserted their right; and 4) any potential prejudice to defendant.

55
Q

Exclusionary rule

A

Evidence obtained in violation of a defendant’s 4th, 5th, or 6th Amendment rights is inadmissible in a criminal case. All derivative evidence is inadmissible under the fruit of the poisonous tree doctrine.

56
Q

Exceptions to Exclusionary rule

A

Exceptions: 1) police had an independent source, 2) discovery would be inevitable; 3) attenuation; and 4) police relied in good faith on a defective warrant. Does not apply in grand juries or civil proceedings.

57
Q

Massiah rule

A

Statements made in violation of the 6th Amendment right to counsel are inadmissible.

58
Q

Terry stop

A

A police officer may stop a person without probable cause if they have an articulable and reasonable suspicion of criminal activity. In such circumstances, if the officer also reasonably believes the person may be armed and dangerous, they may conduct a protective frisk.

59
Q

Excuse of faulty warrants

A

Police good faith does not excuse a faulty warrant when 1) it lacks particularity; 2) probable cause is so lacking it could not have been relied upon in good faith; 3) the magistrate was biased; and 4) Police lied when obtaining the warrant.

60
Q

Fruit of poisonous tree

A

Any evidence discovered by virtue of any unreasonable search or seizure is inadmissible in a court of law.

61
Q

Sensory enhancement

A

Police may not use electronic sensory enhancement equipment that is not available to the public to collect evidence unless they have a valid search warrant. (Think “the Walmart Rule,” if the police can’t buy it at Walmart, they can’t use it to collect evidence without a valid warrant).

62
Q

Conspiracy

A

An agreement between two or more persons with intent to commit an unlawful act. In a common law jdx, the rule mandates two guilty minds. Still, some states have moved on from this restriction to extend liability to a unilateral agreement where a person could be guilty of conspiracy even if the other person is an undercover cop.

63
Q

Majority rule for conspiracy

A

there must be an overt act in furtherance of the conspiracy in which mere preparation is sufficient

64
Q

Conspiracy agreement

A

need not be a formal document, or even in writing; an oral agreement is sufficient. An agreement need not be specifically articulated but can be inferred from a concerted action by the defendants.

65
Q

Co-Conspirator liability

A

Co-conspirators are liable for all crimes conspired, as well as all future crimes if crimes were foreseeable and in furtherance of the objective.

66
Q

Defenses to conspiracy

A

withdrawl under the majority rule because at Common law, the conspiraxy is complete as soon as the parties enter the agreement

67
Q

Withdrawl - Majority rule for defenses to conspiracy

A

A conspiracy does not exist until an overt act has been committed. Consequently, after there has been an agreement but before an overt act has been committed, a person may avoid criminal liability for conspiracy by communicating notice of his intent not to participate to the other potential co-conspirators or by informing the police about the agreement.

68
Q

receiving stolen property

A

Occurs when a person receives possession of stolen property, knows the property is stolen and intends to permanently deprive the owner of this property.

69
Q

attempt

A

Requires intent to commit an offense, and then an overt act beyond mere preparation.

70
Q

embezzlement

A

Fraudulent conversion of personal property of another by a person in lawful possession of the subject property.

71
Q

Larceny

A

The taking and carrying away of property of another, without the owner’s permission, with the intent to permanently deprive the owner of subject property.

72
Q

Larceny by trick

A

Obtaining possession of the property of another by a knowing false statement of fact with intent to defraud.

73
Q

Larceny by false pretenses

A

Obtaining title to the property of another by a knowing false statement of fact with intent to defraud the other.

74
Q

burgularly

A

The breaking and entering the dwelling house of another at night with the intent to commit a felony therein. If you think you are retrieving your property, no intent, does not need to be reasonable. Does not merge with larceny, and MPC jurisdictions often waive the nighttime and dwelling house elements of the crime.

75
Q

Breaking and entering

A

trespassers use of any force even the slightest to enter into the building

76
Q

Felony for burglary

A

expanded to include any type of theft crime

77
Q

Robbery

A

Wrongful taking of another’s property from a person or their presence through force or threat of injury with the intent to permanently deprive them of their property.

78
Q

Assault and battery

A

an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

79
Q

Arson

A

The malicious burning of a dwelling house of another. The dwelling house element is not applicable in many jurisdictions.

80
Q

Guilty pleas

A

– Entering a guilty plea waives certain rights and must be voluntary and knowing. The judge must personally advise the defendant of 1) the right to trial; 2) right to plead not guilty; 3) right to counsel; 4) critical elements of the charge; 5) maximum and minimum sentences; 6) right to appeal sentence; and 7) right to use the defendant’s statements in a perjury trial if required. A defendant may withdrawal only if they can show a failure of the court to meet the standards for taking a guilty plea.

81
Q

Transactional immunity

A

Protects a witness from future prosecution for crimes related to testimony. More encompassing immunity than derivative use immunity, which may only provide limited protections.

82
Q

Qualified immunity

A

– A protection for government officials, i.e. cops, from lawsuits alleging violations of a plaintiff’s rights, or only allowing suits where officials violated a clearly established statutory or constitutional right.

83
Q

Voir Dire

A

The act of selecting jurors from a juror pool. Voter registration files are valid to use when selecting a jury pool. A juror that acts in bad faith in answering voir dire questions does not invalidate the jury verdict.

84
Q

Miranda rights expiration

A

A detainee’s rights last the entire time the detainee is in custody for interrogation purposes, plus 14 days after the detainee resumes their normal life. A prisoner’s normal life is in prison, so a detainee can be taken from prison and re-questioned two weeks after their last custodial interrogation. If they invoke the right to remain silent, a reasonable time must pass.

85
Q

Murder Change of Heart – If a murderer plants a bomb, but then changes their mind and tells everyone about it?

A

This does not negate the intent element, so if someone dies, a first-degree murder charge is appropriate because at the time the bomb was planted the requisite intent was present.

Look out for transfered intent as well to be charged with the death of the bystander

86
Q

Mandatory presumptions

A

Court-ordered presumptions are illegal. “If someone is gone 7 years, you need to consider them dead.” This statement renders a required element a presumption, and therefore not permissible in a murder trial.

87
Q

Fraud

A

A knowing misrepresentation by defendant, who intended to induce a plaintiff’s reliance on the misrepresentation, the plaintiff actually did rely, it was justifiable, and there were damages.

88
Q

Accomplice liability attachment

A

Liability may attach with only words of encouragement 1) with the intent to assist the principal and the intent that the principal commits the crime 2)actually aids, counsels, or encourages the principal before or during the commission of the crime.

89
Q

Accomplice is responsible for

A

the crime to the same extent as the principal

90
Q

the principal commits crimes other than the crimes for which the accomplice has provided encouragement or assistance, then the accomplice is

A

liable for the other crimes if the crimes are the natural and probable consequences of the accomplice’s conduct.

91
Q

To legally withdraw and avoid liability of a substantive crime, the accomplice must

A

(i) repudiate prior aid,
(ii) do all that is possible to countermand prior assistance, and (iii) do so before the chain of events is in motion and unstoppable.

A mere change of heart, a flight from the crime scene, an arrest by law enforcement, or an uncommunicated decision to withdraw is ineffective.

92
Q

Notification to the legal authorities to withdraw as a accomplice must be

A

Notification to the legal authorities must be timely and directed toward preventing others from committing the crime.

93
Q

Accessory after the fact

A

An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order 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 the aid is rendered. This liability ceases once the principal reaches refuge.

94
Q

Self defense

A

Self-defense is a complete defense to a crime, and is justified when the defendant reasonably believes they are in imminent danger of harm.

95
Q

Defense of others

A

If self-defense is appropriate for an individual, a bystander employing defense of that individual will have the defense of self-defense available.

96
Q

Deadly force

A

Such force is allowed when the defendant has a reasonable belief they are in imminent danger of being killed or will suffer great bodily harm, and deadly force was necessary to defend against danger. If any of the above beliefs are unreasonable, the imperfect self-defense doctrine mitigates murder to voluntary manslaughter. If a bystander is injured while employing self-defense, the defendant cannot be liable for battery if their actions are reasonable.

97
Q

Retreat Doctrine

A

A defendant must retreat prior to using deadly force, with exceptions. A defendant has no duty to retreat if in their own home, if a defendant had no opportunity to retreat or couldn’t have been done so safely. There is no obligation to retreat if aggressor is not using deadly force. Some jurisdictions have “stand your ground” statutes that eliminate a duty to retreat.

98
Q

Mistake

A

Batter an undercover cop while they are conducting an arrest? Valid defense. Sell alcohol or have sex with a minor? Strict liability applies, no defense. Act on the advice of an attorney? No defense.

99
Q

Voluntary intoxication

A

This may be a defense against specific intent crimes that require purpose or knowledge. Involuntary intoxication may be a defense to crimes that require the formation of intent.

100
Q

Mistake of fact

A

A defense only if it removes the specific intent as a required element of a crime.

101
Q

Factual impossibility

A

A person is not criminally liable if the facts show that their actions did not amount to a crime.

102
Q

Duress

A

A third party’s unlawful threat that causes a defendant to reasonably believe that the only way to avoid imminent death or serious bodily injury to himself or another is to violate the law, and that causes the defendant to do so, allows the defendant to claim the duress defense

103
Q

Admissibility of an impermissibly suggestive identification

A

(i) the defendant must prove that the identification procedure was impermissibly suggestive, and (ii) the defendant must prove that there was a substantial likelihood of misidentification. In order to have the identification admitted, the prosecution can offer evidence that the identification was nonetheless reliable

104
Q

Courts factors they review to have the identification admitted

A

the witness’s opportunity to view the defendant at the time of the crime; the witness’s degree of attention at the time of the crime; the accuracy of the witness’s description of the defendant prior to the identification; the level of certainty at the time of the identification; and the length of time between the crime and the identification.

Bar prep vs2 (16 decks)

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