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Crim Law Flashcards

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1
Q

MPC Defn acting purposefully:

A

defendant’s conscious object to engage in certain conduct or cause a certain result

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2
Q

Kidnapping Defn

A

Movement (i.e., “asportation”) or Concealment of the victim in a “secret” place (w/o consent)

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3
Q

Battery Defn !!!

A

(general intent)

unlawful application of force to another resulting in bodily injury or an offensive touching.

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4
Q

CL False Imprisonment Defn

A

unlawful confinement of a person without his valid consent.

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5
Q

Assault - Specific or General Intent?

A

Specific Intent when based on attempted battery

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6
Q

Accessory after the Fact: elements

A

One who w/ intent to help FELON escape or avoid arrest or trial or conviction, receives, relieves, comforts or assists a known felon AFTER the felony has been completed.

Liable for Obstructing justice, but NOT liab for principal’s crime

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7
Q

Attempt Elements

A

D is guilty of attempt if D commits act of perpetration w/ intent to commit the intended target crime.
1. a SPECIFIC INTENT to commit the target crime, (ex. intent to kill, intent for serious harm NOT suff)
and
2. an overt act in furtherance of that intent beyond mere preparation. (a substantial step toward commission)
3. falls short of crime
Doctrine of Merger applies!
Defense: Impossibility and Merger, NOT abandonment!

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8
Q

“hub and spoke” conspiracy

A

subagreements must be reasonably independent of each other. Ex. show that the members of each agreement (other than the common member) have little or no interest in whether the other agreements succeed.

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9
Q

“chain” relationship conspiracy

A

each party is interested in or dependent on all subagreements

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10
Q

Intent Necessary for Conspiracy

A

(specific Intent)
need both
i) intent to agree and
ii) the intent to achieve the objective of the conspiracy

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11
Q

The Wharton Rule

A

where two or more people are necessary for the commission of the substantive offense, there is no crime of conspiracy unless at least 1 more party participates in the agreement than are necessary for the crime.

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12
Q

Under the Redline case,

A

felony murder liability does NOT attach when innocent/police kill a co-felon. (Majority view)

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13
Q

“Agency” theory of felony murder,

A

the person doing the killing must be the defendant or the defendant’s agent.
Ex. if someone who does NOT have a stake in the felony (e.g., a police officer, a resisting victim) accidentally kills another, the person committing the felony cannot be held liable for felony murder.

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14
Q

proximate cause” theory of felony murder,

A

felons are liable for the deaths of innocent victims caused by someone other than a co-felon when the felons put into operation a series of events that proximately cause the death of an innocent party, regardless of who actually killed the victim.

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15
Q

Voluntary Intoxication may be a defense for:

A

D voluntarily and knowingly consumed alcohol or drugs.

ONLY specific intent crimes bc D is so intoxicated he cannot form specific intent/knowledge required for crime. (defense for 1st degree murder!, but NOT 2nd degree to Manslaughter)

NOT a defense to common law MALICE crimes or crimes requiring a RECKLESS or NEG state of mind (i.e., general intent crimes).

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16
Q

Mc’Naghten Insanity Rule requires

A

As a result of mental (cognitive) defect, D did NOT:
1. know the wrongfulness of his actions while he committed them
or 2. understand the nature and quality of his actions.

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17
Q

A person may use deadly force to defend herself when

A

she is without fault, she is confronted with unlawful force, and she is threatened with imminent death or great bodily harm.

she need not retreat first

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18
Q

CL Burglary

A

Trespassory breaking and entering of the protected structure of another at night w/ intent to commit a felony therein (Specific Intent, no consent, crime of possession so owner can burglarize own bldg if tenant)

At CL, the elements of burglary are:
(i) a Breaking -
Actual -physical mvmt of door/window or
MODERN - Constructive entry by Misrep/Fraud
(ii) AND entering into (body or tool enters);
(iii) of the dwelling or subpart (CL) OR bldg (Maj),
(iv) of another (occupancy);
(v) at nighttime; (not always required)
(vi) with the intent of committing a felony therein (WHEN ENTERING! later formed intent is NOT suff).

! BARRK crime for felony Murder!

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19
Q

Ex.s of Aggravated Battery

A

(i) a deadly weapon is used; (ii) A serious bodily injury is inflicted; and (iii) the victim is a child, woman, or police officer.

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20
Q

Forgery consists of

A
  1. the making or altering
  2. of a false writing
  3. with the intent to defraud.
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21
Q

Malice Quartet in CL Murder

A
  1. intent to kill (look at words/use of weapon - CAN be 1st degree
  2. intent to inflict great bodily injury (at most 2nd D)
  3. reckless indifference to known unjustifiably high risk of death (depraved heart) (at most 2nd degree)
    or 4. Felony Murder - intent to commit underlying inherently dangerous felony (CAN be 1st degree)
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22
Q

1st Degree murder requires:

A 
Premeditation and Deliberation: 
Premed: some time of cool reflection on idea of killing, and
Delib: D acted in calm cool mindset
OR 
Felony Murder BAARK Crime!!!
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23
Q

involuntary manslaughter

A

(homicide) killing committed w/o malice, and w/ no justification or excuse (mitigation doesn’t apply)
committed w/:
1. Criminal Negligence (gross neg) OR
2. Intent to inflict slight bodily harm, no weapon OR
3. killing during perpetration of crime that is NOT inherently dangerous BARRK;
OR
4. Misdemeanor Manslaughter -misdemeanor Act is inherently wrongful (malum in se), (exs. misd battery, larceny, public intoxication, or in possession of drugs)
NOT malum prohibitum: exs. driving w/ suspended license, unpaid tool, unlawful firearm possession, defacing a flag

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24
Q

voluntary manslaughter

A

killing committed w/ malice, but mitigated by duress of adequate provocation requiring both objective and subjective passion and no cooling off.
1. provocation suff to arouse sudden and intense passion in mind of ordinary person such that he’d lose control (OBJ) and
2. D was in FACT provoked (SUBJ) and
3. insuff time to cool off (OBJ)
and 4. D did not in fact cool off (SUBJ)
ex. struck staggering blow; spouse in act of adultery

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25
Q

willful action

A

knowledge; act aware of what consequences will be

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26
Q

robbery

A

(Larceny +force/threat)

  1. taking of personal prop from person or his immediate vicinity,
  2. by force or threat of force of IMMEDIATE bodily harm,
  3. with intent to permanently deprive him of it; (force sufficient to overcome resistance of victim)

! Felony Murder BARRK Crime!

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27
Q

receipt of stolen property

A
  1. receiving possession and control of stolen personal property,
  2. KNOWING at time of receipt to have been obtained in a manner constituting a criminal offense
  3. by another person with the intent to permanently deprive owner of his interest in prop (Specific Intent)?
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28
Q

MPC/ALI Insanity

A

Due to mental defect, D lacked substantial capacity to either
1. appreciate the wrongfulness of his conduct OR
2. conform his conduct to the law
(combo M’Naghten and and II Tests)

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29
Q

Durham Insanity Test

A

(not followed anymore, but worth points)

D entitled to acquittal because crime was product of mental disease or defect

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30
Q

irresistible impulse test

A

As a result of mental defect, D is unable to:

  1. control his actions or
  2. conform his conduct to the law.
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31
Q

Larceny

A
  1. Trespassory taking AND carrying away of TANGIBLE PERSONAL prop of another (slight mvmt is suff)
  2. with intent to permanently deprive him of it or creating substl risk of loss (abandon); [can decide later to steal]
  3. w/o consent before taking
    (crime of possession, so rightful owner can commit larceny against his own prop)
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32
Q

Assault

A

2 types

  1. Attempted Battery (need specific intent to cause imminent harmful contact) OR
  2. intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm (general intent)
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33
Q

negligence

A

person fails to be aware that a substantial and unjustifiable risk exists or that a result will follow, constituting a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances (less than Crim Neg)

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34
Q

Crim Neg

A

greater deviation from standard of care than regular neg - near knowledge of true risk of his actions

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35
Q

Transferred Intent Doctrine

A

If D intended injury to a person, and in trying to carry out that intent cause similar injury to another her intent is transferred from the intended person to the one harmed; any mitigating circumstances will also transfer

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36
Q

warrentless search of premises valid if Consent

A

voluntary and intelligent consent to search as long as police reasonably believe that consenting partry had equal right to use or occupy premises (even if lacked right); NOT ok if co-tenant present and objects

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37
Q

parens patriae

A

allows gov to take role of parent of someone under disability or minority

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38
Q

Miranda Warning Required if

A

Custodial Interrogation - Objective Tests
1. in police CUSTODY
objective test whether a reasonable person under the circumstances would think that he is not free to leave; person’s freedom of action being constrained in significant way?
(roadside detention NON custodial in nature SCOTUS)
2. being INTERROGATED
Any police conduct that officers know or should know is likely to elicit an incriminating response. routine booking questions do not count

Waiver must be knowing, voluntary, & intelligent (totality); if knowingly voluntarily confessed after miranda = waiver of miranda

*does NOT apply to spontaneous statements NOT made in response to interrogation; if voluntary statement is IN; if coerced statement is out

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39
Q

invocation of right to remain silent

A

must be explicit and unequivocal, then questions must stop until gets counsel, or D resumes questioning

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40
Q

accomplice

A

person who w/ intent the crime be committed, aids, encourages or counsels the principal.
-Accomp is liable for ALL crimes of Principal that he encouraged, were committed during felony or fleeing AND were forseeable result of felony

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41
Q

Conspiracy

A

specific intent crime - agmt between 2 or more persons to accomplish some criminal or unlawful purpose.
1. AGMT between 2 or more guilty persons (express or implied, need not meet) (CL)
Unilateral - only need 1 person
2. specific intent to ENTER into agmt and
3. specific intent to ACHIEVE objective of agmt
4. Maj MBE requires OVERT ACT, but mere Preparation WILL suffice in furtherance of unlawful objective
*NO Merger
ALL conspirators LIABLE only if crime
1. reasonably forseeable AND
2. reasonably further conspiracy!!
Maj - all must agree, so faker does not count
Min - one guilty mind is enough if believed faker agreed (unilateral)
Defense: Impossibility

**CL - Conspirators can be charged as an accomplice for aiding and abetting the crime, but the same liab test for conspiracy would apply (forseeable and in furtherance)

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42
Q

Elements for Commission of Crime

A
    1. Actus Reas
    1. Mens Rea
    1. **Concurrence of #1 and #2 (same time, ex. Larceny intent)
    1. Causal Connection
    1. Harm
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43
Q

Murder defn CL rule

A

Unlawful killing of human being (homicide) w/ malice aforethought, no justification, excuse or mitigation.

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44
Q

depraved heart

A

extreme recklessness - unjustifiably high risk to human life

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45
Q

Felony Murder Rule

A

Unintentional killing that occurs during attempt or commission of INHERENTLY Dangerous Felony -BARRK burglary, arson, rape, robbery, kidnapping
1st DEGREE murder!!
! (malice for murder implied from underlying felony)

!-ONLY applies if underlying Felony is INDEPENDENT from killing (ex. assault/battery leads to death and NOT independent) AND
Felony must be forseeable PROX cause of killing (but this is usually easy)

-must be during perpetration of crime (betw attempt and place of temp safety)

Minority - includes non BARRK crimes done in dangerous manner

split - some states will hold felon liab if 1 innocent kills another during crime, some won’t

Maj. - won’t hold felon liable if non felon kills conspirator

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46
Q

reckless / General intent

A

conscious disregard of a substantial or unjustifiable risk that prohibited result will follow - gross deviation from standard of reasonable care

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47
Q

Knowingly

A

Aware to a substantial certainty, that conduct is of the proscribed nature or that the proscribed circumstances exist; knows conduct will necessarily or very likely cause such result; high standard;

willful ignorance does not negate knowledge?

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48
Q

Mistake of Law

A

NO defense, even if reasonable

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49
Q

Mistake of Fact

A

Available Defense for all crimes w/ required mental state EXCEPT Attempt & Conspiracy -

IF D has REASONABLE Mistake of Fact or IGNORANT of fact that negates required mental state, he is NOT guilty of the crime.

IF D has UNREASONABLE mistake or ignorance of a fact, mistake is a defense ONLY IF crime is SPECIFIC Intent crime. (ie no defense for general intent crime)

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50
Q

Solicitation

A

SPECIFIC INTENT
D is guilty of solicitation if D ASKS or REQUESTS another to commit a crime w/ SPECIFIC INTENT the person solicited commits the crime.
(inciting, counseling, advising, urging, or commanding)
-occurs at moment D ask/encourages/requests.

  • Doctrine of Merger applies - Solicitation will MERGE into Attempt or completed crime - cannot find guilty for both solicit and crime itself
  • Solicitation will often lead to CONSPIRACY!

CRIME @ the time the solicitation is made.
NOT necessary that the person solicited to agree to commit the crime or do anything in response.

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51
Q

Aid & Abet, General Rule

A

one (14 or older) who 1. AIDS, COUNSELS, COMMANDS Or ENCOURAGES another in the commission of crime;
and 2. who is PRESENT when crime is Committed
Principal need NOT be found guilty
EXCEPTIONS:
1. members of a class sought to be protected by statute violated are exempt from liab
2. ?
3. ?

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52
Q

Doctrine of Merger

A

if crime is actually carried out, original crime (solicitation/Attempt) merges into the actual crime, and D cannot be liable for both attempt and intended crime

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53
Q

Charge Dropped/lesser offense against 1 party in conspiracy?

A

will not preclude conviction of remaining D; only acquittal will preclude

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54
Q

Valid withdrawal from conspiracy/Accomplice/Accesory

A
  1. affirmative act of repudiation communicated to ALL members of Conspiracy that D is no longer a participant (or if more involved - repudiating encouragement or neutralizing assistance)
  2. must be timely, before crime, in time for them to abandon plans
    NOTE: Some juris require police alert (MPC tattle tale is not Liab for conspiracy)
    Result: Still guilty for Conspiracy, but NOT for Crime
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55
Q

Arson

A

Malicious burning of protected structure in possession by another (only need malice, not intent);
Malice - intent to burn OR knowledge of extremely high risk of structure burning.
Any malice is suff so transferred intent is not needed here; can be liable for arson of your own building if in possession by another
NEED charring of STRUCTURE itself, non fixtures not suff.
CL - must be DWELLING house
Modern - any structure

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56
Q

embezzlement

A

(1) the fraudulent conversion (2) of the property of another (3) by a person in lawful possession

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57
Q

False Pretenses

A
  1. acquisition of TITLE
  2. to personal property of another
  3. by Intentional false statement of a past/existing fact or MPC false promise (know false or willfully ignorant)
  4. w/ intent to defraud the other and victim is deceived
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58
Q

Larceny by trick

A

Larceny plus victim’s apparent consent

  1. obtaining POSSESSION (taking/carrying away)
  2. of personal property of another
  3. w/ intent to permanently deprive
  4. by Intentional false statement of a past/existing fact or MPC false promise (know false or willfully ignorant
  5. (w/ intent to defraud and victim is deceived)
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59
Q

Extortion (Blackmail)

A

CL - corrupt collection of unlawful fee by officer under color of office;
Modern - obtaining property by means of threats to do harm or to expose information
Threats may be of Future harm (unlike robbery)

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60
Q

malicious mischief

A

malicious destruction of or damage to the property of another (malice = intended or contemplated)

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61
Q

mayhem

A

dismemberment or disablement of body part of another

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62
Q

perjury

A

intentional taking of a false oath in regard to material matter (might affect outcome) in judicial proceeding

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63
Q

Subornation of perjury

A

procuring or inducing another to commit perjury

64
Q

bribery

A

corrupt payment or receipt of something of value for official action

65
Q

Compounding a Felony

A

agreeing for valuable consideration not to prosecute for felony or to conceal commission of felony or his whereabouts (modern - includes any crime)

66
Q

Misprison of a felony

A

failure to disclose knowledge of commission of felony or failure to prevent the commission of a felony (no longer crime unless affirmative action

67
Q

entrapment

A

Defense if committed bc D was entrapped by Gov officials
1. criminal design originated w/ law enforcement
and 2. D NOT Predisposed to commit crime prior to gov contact

68
Q

Rape

A

unlawful carnal knowledge of another person (not husband often) w/o effective consent

69
Q

Statutory Rape

A

S/L carnal knowledge of person under age of consent

70
Q

Exclusionary Rule Exceptions
REVIEW details!

!!

A

Fruit of Poisonous tree Inadmissible UNLESS:

  1. Grand Jury proceedings! Can consider ANY evidence available to determine if probable cause
  2. Fruit derived from Miranda Violations unless police were in bad faith (OR can use to IMPEACH D’s testimony, if Voluntary admission not coerced)
  3. Violations of knock and notice
  4. Civil Case
  5. Parole Revocation proceedings

Breaks Chain betw illegality and evidence:

  1. Independent Source
  2. Intervening act of D’s free will
  3. Inevitable discovery
71
Q

AERIAL SURVEILLANCE

A

NO EXPECTATION of objects/places held out to public or viewed from public vantage point

72
Q

Arrest warrant in TP home

A

police may NOT execute arrest warrant in TP home w/o search warrant or exigent circumstances

73
Q

Exceptions to search warrant requirement

A

ISPACE

  • Incident to lawful arrest
  • Stop and Frisk - Reas Suspicion
  • Plain View
  • Automobile
  • Consent (voluntary and intelligent)
  • Exigent Circumstances (Hot Pursuit, Evanescent Evidence, Community Caretaker)
74
Q

warrantless search of passenger compartment of car valid Incident to Arrest only if:

A
  1. Arrestee still unsecured and may still gain access to interior
    OR
  2. police Reasonably Believe auto contains evidence of crime for which occupant arrested
75
Q

Terry Stop and Frisk

A

Investigatory Detentions
STOP - permissible w/o probable cause IF police have REASONABLE SUSPICION supported by articulable facts of criminal activity.(totality of circs)

FRISK - If REASONABLY BELIEVES armed and dangerous - police can conduct protective frisk limited to pat down of outer clothing for weapons;
-may reach into clothing and seize ANY item REAS BELIEVES based on PLAIN FEEL is weapon OR contraband (may search car limited to areas weapons can be placed)

Roadblocks - DON’T need Reasonable Suspicion for checckpoints IF neutral, articulable standard designed to serve particular automobile problem

Dog Sniff at car is NOT search as long as stop is not extended beyond normal time for inquiry/ticket
Sniff at home is NOT OK.

76
Q

to be free from unreasonable search

A

person must have STANDING - reasonable expectation of privacy in area searched or item seized

77
Q

Need Standing to:

A

challenge search on 4th Am grounds

78
Q

Waiver of Miranda

A

5th Amend - [Confession] must be Voluntary (knowing & intelligent) waiver of Miranda rights, based on totality of circumstances; (informant in jail asking is coerced)

  • If Defendant requests Counsel - must be UNAMBIGUOUS and SPECIFIC
  • then all questioning must cease, even about acts unrelated to crime arrested for (NOT offense Specific)
79
Q

Messiah Right

A

6th Amendment Offense Specific RIght - Post Indictment, can’t talk to D about THAT crime w/o attorney, but can talk about others;
no direct questioning or any interrogation tactic
BUT any comments made w/o counsel CAN be admissible to IMPEACH!! (Sim MBE 82)

80
Q

Miranda timing

A

Prior to formal charges

81
Q

Messiah timing

A

After formal charges

82
Q

Double Jeopardy 5th Amend

A

Prohibits Repetitive Criminal prosecutions for the same crime.

-Attaches once jury impaneled & sworn, OR 1st witness sworn if bench trial;

Exceptions, NO DJ if:

  1. hung jury
  2. Diff charge
  3. New evidence
  4. Diff sovereign (Fed vs state prosecution)
  5. offenses are intended to carry separate punishments and are imposed at a single trial
  6. 1st trial cancelled for manifest necessity
  7. retrial after successful appeal (cannot charge more serious offense)
  8. if D Breaches plea bargain, can retry on greater offense

-Once DJ attaches Bars retrial for all lesser included offenses AND more serious crimes, EXCEPT if unlawful conduct that is subsequently used to prove the greater offense (i) has not occurred at the time of the prosecution for the lesser offense, or (ii) has not been discovered despite due diligence.

Blockburger Test - generally prohibits multiple punishments for the same offense, but 2 crimes are NOT same offense if BOTH crimes require proof of additional element that other crime does not require. (even if same facts necessary)

83
Q

Right to jury trial…

A

6th A
If serious offense (subject to imprisonment 6 months or more)
-right to only minimum 6 jurors;
-no Fed right to unanimous 12 person verdict (BUT if only 6 members must be unanimous)
-jury POOL only must be cross section of cmty
Fed - no peremptory challenge based on race or gender

84
Q

Right to counsel applies to

A

Felonies;
AND misdemeanors when IMPRISONMENT is imposed; Failure to give counsel BARS imprisonment (but not fine)
request must be UNAMBIGUOUS then all questions must stop unless
1. gets counsel or
2. D resumes questioning himself
-ineffective assistance? Must show result would’ve been different, and very particular errors

85
Q

!! requirements for public school searches

A

Warrantless searches of pubic school children’s effects permitted if on reasonable grounds:

  1. The search must offer at least a moderate chance of finding evidence of wrongdoing;
  2. The measures adopted to carry out the search must be reasonably related to the objectives of the search; and
  3. The search must not be excessively intrusive in light of the age and sex of the student and nature of the infraction (e.g., no strip search of freshman girls to look for a few aspirin).

The searches clearly do implicate the Fourth Amendment. However, the standards are lower than ordinary searches; they need not be based on probable cause. The Supreme Court has relaxed the search standard for schools because of the nature of the environment.

Extracurricular activities - can randomly drug test

86
Q

Harmless Error Test

A

Conviction based on
1. unlawful evidence or
2. Prosecutorial comments on D’s 5th Amend right to silence
will stand ONLY if gov can prove beyond a reasonable doubt that conviction would have resulted despite the error. (not substantial or injurious effect or influence on jury)

87
Q

Harmless Error Test

A

Conviction based on unlawful evidence will stand if the government can prove beyond a reasonable doubt that the erroneously admitted evidence likely did not have any effect on the conviction. conviction would have resulted despite the improper evidence.

88
Q

To conduct a frisk of a person stopped for investigative purposes without a warrant,

A

police must have: Reason to believe that the suspect is armed and dangerous

89
Q

Exigent Circumstances exceptions to the warrant requirement when

A
  1. Community Caretaker Exception! - police are acting in emergency situations threatening immediate health or safety (or Emergency Aid)
  2. evanescent evidence, likely to disappear before a warrant may be obtained, such as blood alcohol levels.
  3. hot pursuit of a fleeing felon (even into private dwellings)
90
Q

seizure of person

A

occurs when a reasonable person would believe that he is not free to leave. The courts consider the totality of the circumstances
Requires a physical application of force (e.g., handcuffing or otherwise subduing a person) or submission to an officer’s show of force.

91
Q

Details of warrant must

A
  1. affidavit giving Neutral and Detached magistrate enough information
  2. to make a common sense determination of PROBABLE CAUSE that seizable evidence will be found on premises
  3. precise details of place and items to be searched,

DON’T need reliability and credibility of the informer anymore (totality of circumstances)
-generally NOT required when arresting in Public place

92
Q

Does Passenger in traffic stop have standing?

A

yes, because the stop is a seizure of the passenger as well as the driver.

93
Q

Details of arrest/search warrant must

A
  1. affidavit giving Neutral and Detached magistrate enough information
  2. to make a common sense determination of PROBABLE CAUSE that seizable evidence will be found on premises
  3. precise details of place and items to be searched,

DON’T need reliability and credibility of the informer anymore (totality of circumstances)
-generally NOT required when arresting in Public place
NEED arrest warrant to arrest at home

94
Q

A confession obtained in violation of Miranda may:

A

Be used at trial for impeachment purposes if voluntary

95
Q

For valid waiver of Miranda rights, must be

A

knowing, voluntary, and intelligent

96
Q

The inevitable discovery exception

A

exception to the exclusionary rule providing that, if the prosecution can show that the police would have discovered the evidence whether or not they had acted unconstitutionally, the evidence will be admissible.

97
Q

The independent source exception

A

provides that evidence is admissible if the prosecution can show that it was obtained from a source independent of the original illegality.

98
Q

intervening act of Free will exception “attenuation”

A

an intervening act of free will by the defendant will break the causal chain between the evidence and the original illegality and thus remove the taint.
Ex. D was released on his own recognizance after an illegal arrest but later returned to the station to confess.

99
Q

collateral estoppel

A

prohibits a defendant from being tried or convicted of a crime if a prior prosecution resulted in a factual determination inconsistent with one required for conviction.

100
Q

Attachment

A

describes the process by which jeopardy becomes part of an offense, such that the defendant cannot later be tried again for the same crime.

101
Q

The Blockburger test

A

used under the Double Jeopardy Clause to determine whether two crimes constitute the same offense so that prosecution of one bars prosecution of the other.
TEST: a D may face separate trials for two different charges if each charge contains an element not found in the other charge.

102
Q

Manifest necessity

A

describes the situation in which a trial may be discontinued and the D reprosecuted for the same offense because some circumstance arose, not through the fault of the prosecution, that prevents the first trial from continuing (e.g., death of the judge).

103
Q

Fifth Amendment privilege against self incrim allowed by

A

privilege against compulsory testimony -
Only natural persons (nor corps or partnerships);
Crim Defendant (only) waives if he takes the stand;

avail to ALL in all civil and crim proceedings;
W must raise Defense 1st time question asked! even if Civil trial or waived
can compel blood, handwriting, voice, hair

prosecution CANNOT comment on silence, unless D claims no opp to be heard (harmless error test applies)
CAN ELIMINATE if:
1. grant of immunity
2. no possibility of incrim (SoL)
3. Waiver
104
Q

transactional immunity,

A

guarantees immunity from prosecution for any crimes related to the transaction about which the witness testifies.

105
Q

use and derivative use immunity

A

guarantees that the testimony obtained and evidence located by means of the testimony will not be used against the witness. W may still be prosecuted if the P can show evidence was derived from a source independent of the immunized testimony (does NOT guarantee immunity from prosecution for any crimes like Trans immunity)

106
Q

immunized testimony -involuntary

A

Testimony obtained by a promise of immunity is, by definition, coerced and therefore involuntary “official compulsion)

107
Q

BARRK for Felony Murder

A

burglary, arson, rape, robbery, kidnapping

108
Q

Bigamy

A

CL S/L offense of marrying someone while having another living spouse

109
Q

Self Defense

A

Person may use deadly force in self defense if
1. he is w/o fault
2. he is confronted w/ unlawful force AND
3. he is threatened w/ imminent death or great bodily harm. (reasonably believes)
Deadly force must be reasonable and necessary to defend against party.
mistaken/unreasonable belief in g/f? =imperfect SD mitigates Murder to Manslaughter only

Maj - no duty to retreat unless aggressor & safely avail
Min - duty to retreat unless home/police/victim of violent felony

If D is initial aggressor, NO SD unless:
1. explicit withdraw OR
2. D initially used non deadly force, but now faced with deadly
and
3. retreated to safe place if avail before deadly force used

110
Q

Defense of Others

A

can use deadly force if reasonable and necessary to defend another

majority - D may claim defense if victim reas appears to have right to use deadly force

minority - D steps into shoes of person defended;

111
Q

Insanity

A

Mc’Naghten Test, Irresistible Impulse, and MPC; Minority States - diminished capacity less than insanity can negate intent

112
Q

Age Infancy

A

under 7 - no crim Liab (Under 5 no tort)
7-14 - rebuttable presumption of no crim liab
over 14 - treated as adult

113
Q

Duress

A

Defense - D’s crime excused bc acted under threat of imminent death or great bodily harm (does not excuse intentional killing)

114
Q

crime prevention

A

police or private person may use deadly force if reasonably necessary to PREVENT completion of dangerous felony BARRK OR
to apprehend dangerous felon; reasonable mistake ok to prevent!

115
Q

criminal negligence

A

gross deviation from standard of care that a reas person would observe - need duty

116
Q

can detain for Investigation if

A

based on reasonable suspicion based on articulable facts

117
Q

4th Amend prohibits

A

unreasonable search and seizure

118
Q

search incident to lawful arrest

A

-police can search persons/areas into which person might obtain weapons or destroy evidence (wingspan)
-Auto passenger compartment may be searched if arrestee is unsecured and still may gain access
OR police reasonably believe evidence for arrest may be found in vehicle
-may search inventory of arrestee’s belongings or of impounded vehicle

119
Q

plain view

A

police must be

  1. LEGITIMATELY on premises,
  2. discover evidence in plain view, and
  3. have probable cause to believe item is related to crime
120
Q

Automobile

A

can search w/ Probable Cause that evidence/contraband inside, whole vehicle and any container that might reasonably contain item for which they have probable cause, including passenger belongings;
if PC that vehicle itself is contraband, vehicle may be seized from public place w/o a warrant
Rationality - mobility

121
Q

Administrative searches

A

need general and neutral enforcement plan

122
Q

Border Searches

A

no 4th A rights; can stop if officer reasonably suspects vehicle has illegal aliens

123
Q

Body Searches

A

requires balancing of need for evidence against magnitude of intrusion. Be be INadmissible if “shocks the conscience”

124
Q

5th Amendment

A
  1. privilege against compulsory self incrimination (Miranda); Right to Counsel pre-judicial process;
  2. Prohibition against Double Jeopardy
125
Q

State Prosecution - - think…

A

14th Amen

126
Q

right to speedy trial

A

6th Am
Attaches once D is charged/arrested
Totality Factors: length of delay, reason for delay, whether D asserted his right and prejudice to D

127
Q

Right to Confront Witness

A

6th A;
Absence of face to face confrontation does NOT violate 6A when preventing it serves Important Public Purpose and reliability of witness is otherwise assured (ex. child)

128
Q

Co Defendant Confession

A

generally inadmissible bc 6A violation of Right to Confront Witness, UNLESS
1. all portions referring to this D are REdacted
or 2. confessing D takes stand subject to Cross
or 3. confession used to rebut this D’s arg that his confession obtained involuntarily.

129
Q

Justification

A

Complete moral Defense if reasonable & necessary to repel attacker:
-Self Defense
(Maj no duty to retreat unless D is initial agressor and safe retreat avail;
Minority must retreat unless D is in home, police, or victim of felony)
-Defense of Others
-Defense of Home/Property (no deadly force to protect home only, YES if d of others or felony)
-Crime Prevention
-Apprehension of Criminal
-Reasonable Mistake

130
Q

Apprehension of Criminal

A

police [or private citizen] may use deadly force if reasonably necessary to apprehend a dangerous felon when felon appears to pose threat to person or to others, and force necessary to prevent mistake; reas mistake ok for POLICE

Private person only permitted as justification if victim Actually guilty of felony! NO reas mistake, vigilantism

131
Q

Reasonable Mistake Summary for Justifications

A

Reas Mistake avail for deadly force in Self Defense, (Majority) Defense of Others, and Crime Prevention; ONLY police can make reas mistake for Apprehension of criminal

132
Q

Excuse

A

not criminally liable, but morally looked down on:

  • Youth/infancy
  • Insanity
  • Intoxication (voluntary/Involuntary)
133
Q

involuntary intoxication

A

taking of intoxicating substance w/o knowledge of its nature under duress or pursuant to medical advice. treated as mental illness.
Defense to ALL crimes IF condition sufficient to render D INSANE and negate intent

134
Q

Mitigation

A
  1. adequate provocation (voluntary mansl)

2. Good faith mistake (SD, D of others, crime prevention)

135
Q

Intent required for all Theft crimes is?

A

SPECIFIC intent! but g/f mistake is available as defense

136
Q

Defenses: Impossibility

A

Applies ONLY to Attempt & Conspiracy

Legal Impossibility - good defense; exists when acts D intended to commit are not a crime in the juris

Factual Impossibility - bad defense; exists when act D intended to commit would be a crime, if the facts were as D believed them to be

137
Q

StATE OF MIND and DEFENSES

A
  1. General Crim Intent: Battery, Rape, Reg Assault
    key defense - Reasonable mistake of fact
  2. Specific Crim Intent: Assault (when based on attempted battery), theft crimes, burglary, Prelim Crimes, 1st Degree murder, Felony Murder, and statutory crimes w/ “knowingly or w/ intent to”
    key defenses - Reasonable or Unreasonable Mistake of Fact
  3. S/L Crimes - no mens rea required
    only Defense - D performed NO voluntary act
138
Q

6th Amendment

A
  1. Right to Speedy Trial
  2. Right to jury trial
  3. Right to confront witnesses
  4. Right to assistance of counsel at all critical stages after formal proceedings have begun
    (post charge) including custodial interrogation (unless waver of counsel).
    (NOT for photographs, taking of blood/handwriting, PRE-Charge lineups, recess during testimony, Parole/Probation, Fingerprints
139
Q

8th Amendment

A

Prohibition against cruel and unusual punishment
1. Death Penalty
(must allow D to give mitigating evidence, no automatic Death crimes, only JURY determines if aggravating factors) - cannot give to accomplice who was barely involved.
2. Prisoner Rights

140
Q

14th Amendment

A

Due process -4th, 5th, and 6th Amendments are applicable to the states via the 14th Amend.

  1. BOP on Gov to prove each element beyond reasonable doubt
  2. Unnecessarily suggestive ID leads to likelihood of Mis ID (EXCLUDE UNLESS State can show Independent Source for ID w/ adequate Opp to Observe at time of crime

!! 5A - “for a self Incrim statement to admissible under the DPC, it must be VOLUNTARY as determined by the Totality of the Circumstances. (not product of official compulsion).”

141
Q

Exclusionary Rule

A

Someone who is victim of 4,5,6 A violation (illegal search or coerced confession) can have all evidence obtained or derived from police illegality EXCLUDED from any subsequent criminal prosecution bc it is fruit of the poisonous tree

Exclusion of tainted evidence is not automatic;

In deciding whether to apply exclusionary rule, courts must balance:
Rule’s purpose (i.e., deterrence of police misconduct)
VS Rule’s costs (i.e., the exclusion of probative evidence).
whether exclusion is warranted in a given case depends on “the culpability of the police and the potential of the exclusion to deter wrongful police conduct.”

142
Q

Search and Seizure violation? Test!!!

A
  1. Governmental Conduct
  2. Reasonable Expectation of Privacy/Standing (own premises, live on, overnight guest)
    NO Reas expectation:
    sound of voice, handwriting, paint on car, bank records, monitoring car on streets, OPEN FIELDS, anything seen from flying over in Public air space, odors from luggage, garbage SET out on curb
  3. Valid Search Warrant -
    Probable Cause - fair probability that contraband or evidence of crime will be found in area searched
    &
    Particularity - state w/ particularity place to be searched and things to be seized
    Totality - informants
  4. G/F reliance on facially valid warrant overcomes defective warrant?
    - lacking in prob cause, no reas officer would rely (D must show affiant inentionally/recklessly included a false material statement)
    - lacking in particularity
    - police misled magistrate
    - magistrate biased
  5. Exceptions to Search Warrant requirement (ISPACE)
    -Incident to Lawful arrest
    (Wingspan; same time/place as arrest;
    Auto: arrestee UNsecured OR reas belief
    evidence of crime arrested for in car)
    -Stop and Frisk (Reas Suspicion/facts of crime)
    -Plain View (Must be Legitimately present and Immediately apparent item is contraband or fruit or crime)
    -Automobile - NEED Probable Cause, then can search entire car and Pckgs which could reasonably contain item they had PC to look for
    -Consent (voluntary and intelligent by person who has apparent right to use or occupy), Police reas belief, includes areas which reas person under circs would believe it extends
    -Exigent Circumstances (Hot Pursuit w/in 15min, Community Caretaker, Evanescent Evidence)
143
Q

wiretapping and eavesdropping

A

requires warrant, limited to short time only,
EXCEPT
1. Unreliable ear - you assume risk that person you are talking to is wired/consented to monitoring
2. Uninvited Ear - no expectation of privacy if make conversation in public

144
Q

Grand jury is

A

secret, no witnesses, D has no right to attend or be notified

145
Q

Prosecutorial Duty

A

to disclose exculpatory evidence; violation whether willful or inadvertent
Grounds for dismissal IF:
1. Ev is favorable to D AND
2. prejudice resulted, meaning reasonable probability result would have been different w/ disclosure

146
Q

Plea Taking Ceremony

A

judge must address ON THE RECORD
1. nature of charge
2. Maximum authorized penalty and mandatory minimum
3. right to plead not guilty and demand trial
can withdraw plea if errors (involuntary, Juris, gov does not give promised deal)

147
Q

Totality of the Circumstances test applies

A
  1. judging informant reliability
  2. reasonable suspicion for Terry Stops
  3. Miranda Waivers (iq, age)
148
Q

specific intent

A

CL - intent to engage in specific proscribed conduct

149
Q

general intent

A

CL- awareness of acting in a certain manner, that is proscribed; OR

MPC - like recklessness, conscious disregard of substantial or unjustifiable risk that material element exists or will result from his conduct.

150
Q

Search Warrant Limitation

A

warrant does not authorize police to search persons found on Premises who are not named in warrant. Police may search her ONLY IF they have Probable Cause to believe she has named objects on her.
However, if probable cause to arrest person discovered, they may conduct warrantless search or her incident to arrest.

151
Q

Death Penalty Limitation

A

cannot impose death P for felony murder on accomplice Defendant, where he did not take or attempt or intend to take life, or intend that lethal force be employed (no major participation o no reckless indifference to human life)

152
Q

Rule of Forseeability

A

D intends the natural and probable consequences of his actions

153
Q

2nd degree murder

A

intentional unjustified killing w/ malice aforethought; OR murder that is NOT 1st degree

154
Q

Probable Cause for Arrest

A

reasonable person would deduce a crime occurred and D committed it;

155
Q

Showup

A

one on one confrontation between witness and suspect for purposes of ID

156
Q

Knock and Announce

A

in executing search warrant, police must knock and announce their authority and presence AND wait a reasonable amount of time to respond UNLESS there is reasonable suspicion to believe announcement would be dangerous, futile or inhibit the investigation.

Law (15 decks)

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