Crim Law and Crim Pro

Question 1

** 4th Amendment

Answer 1

4th Am broadly prohibits unreasonable searches and seizures. 4th Amendment is applicable to the states through the Due Process Clause of the 14th Amendment

Question 2

** 5th Am Right to Counsel

Answer 2

Under Miranda, if a suspect clearly and unambigously requests counsel, all questioning must stop until suspect meets with an attorney
- Police have no duty to clarify an ambiguous request

Question 3

5th Amendment

Answer 3

The Fifth Amendment privilege against self-incrimination

• Requires Miranda warnings and a valid waiver before any statement made by the accused during custodial interrogation can be admitted

** Applies only to COMPELLED, TESTIMONIAL evidence

Question 4

6th Amendment Right to Counsel

Answer 4

Applies at any POST-INDICTMENT or POST-CHARGE event. Offense SPECIFIC! (Six = Specific)
- Statements in violation can come in for impeachment purposes

Question 5

** Sixth Amendment Right to Counsel v. 5th Amendment Right to Counsel

Answer 5

SIXTH AMENDMENT: applies to the states through the 14th amendment, provides that in all criminal prosecutions, the defendant has a right to the assistance of counsel during all CRITICAL stages of a prosecution AFTER FORMAL PROCEEDINGS have begun

• OFFENSE SPECIFIC: if it has attached as to one charge, he can be questioned about another charge without attorney present
• Failure to inform a suspect that his lawyer is coming does not violate unless it’s for charges that have commenced

FIFTH AMENDMENT: applicable to the states through the 14th amendment, provides that no person may be compelled to give self-incriminating testimony

• Miranda: a person in police custody must be given the warnings before a police officer may conduct a custodial interrogation
• Any time prior to or during interrogation, detainee may invoke right to counsel
• If he invokes this right ALL QUESTIONING MUST STOP until the detainee has his attorney or further initiates questioning HIMSELF
• Request must be unambiguous and sufficiently clear such that a reasonable police officer in the same situation would understand the statement to be a request for counsel
• No duty to seek clarification

Question 6

Accomplice Liability

Answer 6

To be convicted as an accomplice under the prevailing rule, a person must have given aid, counsel, or encouragement with the INTENT TO AID or encourage the principal and the INTENT that the principal COMMIT the substantive offense.

• Does not require the principal to be convicted first!
• Mere KNOWLEDGE that a crime would result from the aid provided is generally insufficient for accomplice liability
• The criminal liability for other PROBABLE or FORESEEABLE crimes arises when one is deemed an accomplice of a principal

Question 7

Arson

Answer 7

1. Common law: the malicious burning of the dwelling house of an another [minority]
   - Requires some damage to the fiber of the wood or other combustible material of the dwelling, not merely the items inside
   - Ownership of the structure is not material for determining whether the dwelling is that of another; rather, the right to occupancy is material
2. Modern: the malicious burning of any structure or dwelling. At minimum, charring. Not mere blackening (attempted arson)

* Mens rea: MALICE; don’t need specific intent to commit crime; requires that the defendant have acted with the intent or knowledge that the structure would burn, or with reckless disregard of an obvious risk that the structure would burn
- The risk or hazard is not that the building will burn down, merely that damage to the structure from a burning will occur.

• The “burning” required for arson does not require significant damage to the building; a charring of the combustible material is sufficient.

Question 8

Consent to search

Answer 8

Consent must be

1. Given by one who APPEARS to have an apparent right to use or occupy the premises and
   - Police reasonably believe person could consent
   - Consent is not invalid merely because the person who gave it did not actually have authority to do so
2. The search cannot go beyond the scope of the consent given
   - Areas to which a reasonable person under the circumstances would believe it extends

Question 9

** Custodial interrogation

Answer 9

To protect the Fifth Amendment privilege against self-incrimination, a person in police custody must be given certain warnings (Miranda) before a police officer may conduct a custodial interrogation
- Applicable to the STATES through the Due Process Clause of the 14th Amendment

INTERROGATION: any statement, question, or conduct by the POLICE DESIGNED to illicit incriminating response

CUSTODY: freedom of action is limited in a signficant way

Question 10

Duress

Answer 10

A person is not guilty of an offense, other than intentional homicide, if he performs an otherwise criminal act under the reasonable belief that another will imminently inflict death or great bodily harm on him or an immediate family member if he does not commit the criminal act.

• Any reasonable means to escape the sitaution?

Question 11

Exclusionary Rule

Answer 11

The exclusionary rule, evidence obtained from an unconstitutional search must be excluded from trial.

• To be valid, searches must be REASONABLE.
• The Supreme Court has held that most searches are unreasonable unless the police obtain a warrant before searching.

Six categories of searches that the Court has held to be reasonable without a warrant

1. Consent

2.

3.

4.

5.

6.

Question 12

** Fruit of the Poisonous Tree

Answer 12

Under the Supreme Court’s exclusionary rule, evidence obtained in violation of a person’s constitutional rights generally will be excluded from admission into evidence at trial.

Fruit of the poisonous tree: the exclusionary rule generally applies to evidence dervived from unconstitutionally derived evidence

Exception: if police obtain an unwarranted confession from the suspect, warn the suspect, and then requestion the suspect if it appears there was a “question first, warn later” scheme to get around Miranda

Question 13

Insanity

Answer 13

Model Penal Code: a defendant is entitled to acquittal if he suffered from a mental disease or defect and as a result lacked substantial capacity to either:

1. Appreciate the criminality of his conduct; or
2. Conform his conduct to the requirements of law

Durham insanity test: defendant is entitled to acquittal if his crime was the product of mental disease or defect.

• But for the disease / defect, defendant would not have done it

M’Naghten rule: provides for acquittal if a disease of the mind caused 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 actions

Iresistible impulse test: provides for acquittal if, because of mental illness, the defendant was unable to control his actions or to conform his conduct to the law.

** Model Penal Code test combines the M’Naghten and irresistible impulse tests

DEFENSE TO ALL CRIMES!

Question 14

Involuntary Manslaughter

Answer 14

Involuntary manslaughter is a killing committed with criminal negligence or during the perpetration of some unlawful act not encompassing a felony for felony murder.

1. Criminal negligence manslaughter: causes death by criminal negligence
   - Requires a greater deviation from the reasonable person standard than is required for civil liability; behavior must be a SUBSTANTIAL DEVIATION from the standard of care that a reasonable person would have exhibited under the circumstances
   - Some states use a recklessness standard; requires subjective awareness of risk of death
2. Unlawful act manslaughter: death is caused by d’s commission of an unlawful act

Question 15

Jury requirements

Answer 15

Min 6 people (6th and 14th Am). If 6 jurors, must be unanimous.

Question 16

Larceny by trick

Answer 16

A victim consents to POSSESSION of property as a result of misrepresentation

Question 17

Lawful arrest

Answer 17

Must be reasonable and based on probable cause

Question 18

Miranda Rights

Answer 18

Miranda v. Arizona requires that a person in custody be informed of his right to remain silent and his right to the presence of an attorney during questioning.

* FAILURE to give: violates 5th Amendment right to be free from compelled self-incrimination (c.f. 6th Amendment right to counsel!)

• Applies to CUSTODIAL INTERROGATION. Interrogation must be by POLICE and defendant must KNOW he is talking to police.

Interrogation must be by POLICE and defendant must KNOW he is talking to police.

1. At any time prior to or during a custodial interrogation, the accused may invoke a Miranda (Fifth Amendment) right to ATTORNEY.
   - ALL questioning must cease until the accused is provided with an attorney or initiates further questioning himself
2. After receiving Miranda warnings, if an accused invokes the right to REMAIN SILENT, the police cannot badger the accused.
   - Courts have ruled that if the police scrupulously honor the request, they can rewarn the accused and later resume questioning, at least about a DIFFERENT CRIME.

* A suspect may subsequently WAIVE his rights by making a confession, as long as the waiver was KNOWING and VOLUNTARY

• Due process requires that for confessions to be admissible, they must be “voluntary,” based on the totality of the circumstances,

* Police have no duty to inform the defendant that an attorney is attempting to see him

Question 19

** Miranda Waiver

Answer 19

Must be KNOWING and VOLUNTARY

• Totality of the circumstances
• Probably sufficient if he received warnings and answered questions

Question 20

Murder

Answer 20

Murder is the unlawful killing of a human being with malice aforethought. “Malice aforethought” exists if the defendant has any of the following states of mind -

1. The intent to kill (express malice)
2. The intent to inflict great bodily injury
3. Reckless indifference to an unjustifiably high risk to human life (“abandoned and malignant heart”)
4. The intent to commit a felony

Question 21

Overt act for attempt v. Overt act for conspiracy

Answer 21

Overt attempt required for attempt is much more substantial than overt act for conspiracy.

• Mere PREPARATION is sufficient for conspiracy, but more is required for attempt.

Question 22

** Plain view exception

Answer 22

An officer may make a WARRANTLESS SEIZURE of evidence if

1. The officer is LAWFULLY allowed to be in the place
2. Sees in PLAIN VIEW items that he has
3. IMMEDIATE probable cause to believe….
4. Is CONTRABAND, evidence, instrumentalities, or fruits of a crime

Question 23

Proximate Cause

Answer 23

Death is a natural and probable consequence of the defendant’s conduct, even if he does not anticipate the precise manner in which the death occurs

Question 24

Requirements for a valid search warrant

Answer 24

To be reasonable under the Fourth Amendment, most searches must be pursuant to a warrant.

• The warrant must describe with reasonable precision the place to be searched and the items to be seized.
• A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant

Question 25

Requirements for a Proper Warrant

Answer 25

1. Based on probable cause
2. Precise on its face
3. Issued by a neutral and detached magistrate

If not, was police officer’s reliance in good faith?

Question 26

** Right to counsel at jury selection

Answer 26

Jury selection is a critical stage of trial at which the defendant is entitled to be present

• Not a confrontation right, but rather the right to participate in one’s own case

Question 27

Right to counsel at lineups

Answer 27

Suspect has no right to counsel at a PRE-charge lineup

Has right to counsel at POST-charge lineup

• However, at nontrial proceedings (such as a post-indictment lineup), the harmless error rule applies to deprivations of counsel

Question 28

Right to jury trial

Answer 28

Serious offense (jail for more than 6 months)

6th Amendment

Question 29

Robbery

Answer 29

Robbery is an aggravated form of larceny and consists of the following elements

1. A taking
2. Of the personal property of another;
3. From the other’s person or presence
4. By force or intimidation;
   - The force or threats must be used either to gain possession of the property or to retain possession immediately after such possession has been accomplished
5. With the intent to permanently deprive him of it

** Even if they get property back, the TAKING is the crime

** Threat of force includes pretending they heave a weapon

Question 30

Scope of a search warrant

Answer 30

A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant.

• However, if the police have probable cause to arrest a person discovered on the premises, they may search him incident to the arrest.

Question 31

Search Incident to Lawful Arrest

Answer 31

Police can only search if is directly connected to the arrest or if they are trying to preserve evidence or protect officer safety.

• May be of the person and areas into which he might reach to obtain weapons or destroy evidence (his “wingspan”).
• If they are in a car, limited to the passenger area of the car, not the trunk. Suspect must be in CUSTODY.

Question 32

Searching automobile

Answer 32

Even though the police have validly stopped an automobile, they cannot search the vehicle without meeting the requirements of one of the exceptions to the warrant requirement

• E.g., The automobile exception (which requires probable cause) or consent.

Question 33

Seizure

Answer 33

Stopping a car

Arresting a person

Question 34

Stop and Frisk

Answer 34

Stop: An office may stop a person without probable cause for arrest if they have a REASONABLE and ARTICULABLE SUSPICION that criminal activity is afoot

• A stop is not an arrest, so need not have probable cause

Frisk: a police officer may frisk a person for weapons without a warrant if the officer has reason to believe the suspect is armed and dangerous.
- May reach into suspect’s clothing and seize any item the officer reasonably believes, based on plain feel is a weapon/contraband

• C.f., incident to arrest, a person may be thoroughly searched for weapons or any type of evidence.
• If frisking a car, can search anywhere in passenger compartment from which detainee may obtain weapons, including closed containers

Question 35

Voluntary confession

Answer 35

For confessions to be admissible, the Due Process Clause of the Fourteenth Amendment requires that they be voluntary.

• Voluntariness is a fact question that is assessed by looking at the totality of the circumstances
• A voluntary confession will be inadmissible if it was obtained in violation of Miranda rights

Question 36

** When can a police officer stop a car?

Answer 36

If the officer has PROBABLE CAUSE to believe they have committed a traffic violation

• Can arrest if state law allows

** Does not matter if their motive was to investigate for something other than a traffic violation

Question 37

When does the pre-trial right to counsel apply / not apply?

Answer 37

Applies where defendant is CONFRONTED by the witness against them:

1. Custodial police interrogation
2. Post-indictment interrogation
3. Preliminary hearings to determine probable cause to PROSECUTE
4. Arraignment
5. Post-charge lineup

Do NOT apply:

1. Taking of blood samples
2. Taking of handwriting samples / voice exemplars
3. Preliminary hearings to determine probable cause to detain
4. Photo IDs or pre-charge lineups
5. Grand jury

Question 38

When does the right to counsel apply after trial / not apply after trial?

Answer 38

APPLIES:

1. Sentencing hearings
2. Appeals as a matter of right / appeals of guilty or nolo contendere pleas

Does NOT apply:

1. Discretionary appeals
2. Post-conviction proceedings (e.g., habeas)
3. Parole and probation revocation

Question 39

When does the right to counsel apply at trial?

Answer 39

1. Felony trials
2. Misdemeanor trials if incarceration is actually imposed or if a suspended sentence is imposed
3. Guilty pleas

* Harmless error standard never applies to the denial of right to counsel at trial

Question 40

4th Amendment

Answer 40

The Fourth Amendment protects against unreasonable searches and seizures by criminal law enforcement agents

Question 41

Abandonment of attempt

Answer 41

• Generally, if a defendant has, with the required intent, gone beyond preparation, abandonment is NOT a defense.
• Even in those jurisdictions in which abandonment is a defense, such abandonment must be
  1. Fully voluntary and not made because of the difficulty of completing the crime or because of an increased risk of apprehension
  2. A complete abandonment of the plan made under circumstances manifesting a renunciation of criminal purpose, not just a decision to postpone committing it or to find another victim.

Here, the felon intended to take money from the clerk at the market by means of the threat of having a gun (i.e., by simulating a gun). Thus, the felon intended to commit a robbery. In walking up to the market counter while simulating a gun with his hand, the felon committed an act that was a substantial step toward commission of the intended crime, and that strongly corroborated his intent and purpose to commit the crime. All that was missing to complete the crime was for the clerk to turn around and, upon seeing the felon apparently armed, be forced to give up the money. Thus, the felon went far beyond mere preparation for the crime of robbery. Having gone beyond mere preparation, with the intent to commit robbery, the felon is guilty of attempted robbery. And, as explained above, even if the felon abandoned his plan when the customer entered the market, such abandonment will not afford him a defense. Even in those jurisdictions in which abandonment is a defense, the felon will not have a defense because his abandonment apparently occurred when the customer’s sudden presence increased the risk of apprehension. Thus, the abandonment was not fully voluntary and did not really manifest a renunciation of criminal purpose. (A) is incorrect because, to be guilty of attempted robbery, events need not have progressed to the point where the defendant has used or threatened to use force. Because the felon had the requisite intent for attempt and went beyond mere preparation by standing at the counter and simulating possession of a gun, he should be found guilty of attempted robbery. (B) is incorrect because, as detailed above, abandonment of an attempt does not afford a defense, and in any event, the felon’s abandonment here was not fully voluntary because the felon abandoned his plan due to an increased risk of apprehension. (C) is incorrect because a conviction of attempt does not require entry into a “zone of perpetration.” Rather, a defendant (with the requisite intent) need only have committed an act beyond mere preparation. The Model Penal Code and most state criminal codes require that the act constitute a substantial step towards commission of the crime and strongly corroborate the actor’s criminal purpose.

Question 42

Actus reus

Answer 42

Must be voluntary!

• Involuntariness is a defense unless they knew they could become unconscious and commit the act

Question 43

Assault

Answer 43

An assault is either

1. An attempt to commit a battery [majority]
   - Requires specific intent to make offense contact; i.e., cannot know that it’s impossible to make contact
2. The intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm
   - Requires the intended victim be AWARE of the conduct, e.g., see it

* Best answer may reflect BOTH

Question 44

Attempt

Answer 44

Criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing that crime. Requires -

1. The specific intent to commit the crime, and
   - REGARDLESS of the intent required for the underlying offense! E.g., attempted murder requires specific intent to kill, not merely cause great bodily harm, which is sufficient for murder
   - Factual impossibility that the crime could take place is not a defense
2. An overt act in furtherance of the crime
   - Beyond mere preparation for the offense; the MPC and most state criminal codes require that the act constitute a substantial step towards commission of the crime and strongly corroborate the actor’s criminal purpose
   - Traditionally, courts used the proximity test, requiring an act that is dangerously close to success.
   - Once a person has gone beyond preparation, abandonment is generally not a defense to attempt
   - Does not require entry into a “zone of perpetration.”

* Cannot “attempt” a negligent crime / reckless crime

• Merges into target offense
• Generally withdrawal is not a defense

Question 45

Automobile Exception

Answer 45

Under the Automobile Exception, if the police have PROBABLE CAUSE to believe that a VEHICLE contains CONTRABAND or fruits, instrumentalities, or evidence of a crime, they may search the vehicle, including the driver’s BELONGINGS, without a warrant.
- The automobile exception extends not only to cars, but also to other vehicles that are readily mobile and as to which there is a lesser expectation of privacy

** Police can search the entire car and anything therein that might contain the evidence (e.g., cannot look for people in the glove box, but can look there for drugs)

Question 46

** May the police re-initiate questioning after Miranda warnings have been given?

Answer 46

Police may reinitiate questioning after the defendant has invoked his right to remain silent, as long as they “scrupulously honor” the defendant’s request. Requires, at least -

1. Police may not BADGER the defendant into talking and
2. Must wait a SIGNIFICANT time before reinitiating questioning

The prohibition against questioning a detainee after invoking Miranda rights lasts the entire time the detainee is in custody for interrogation purposes, plus 14 more days after the detainee returns to his normal life (which can include his “normal life” in jail)

Question 47

Burdens of Proof

Answer 47

The PROSECUTOR is required by the Due Process Clause to prove each and every element of a crime beyond a reasonable doubt.

The DEFENSE is required to prove affirmative defenses by a preponderance of the evidence

Question 48

Burglary

Answer 48

At common law, a burglary is defined as -

1. A breaking and entry of the dwelling of another at nighttime
   - Breaking is satisfied as long as some degree of force is used to gain entry, e.g., oipening a closed door is sufficient and there is no requirement that the door be locked
   - A structure is considered a dwelling if it is used regularly for sleeping. Such a structure remains a dwelling even if it is also used for other purposes, such as conducting a business
   - Occupancy, rather than ownership, is material. Thus, an owner can commit burglary of his own structure if it is rented and used as a dwelling by others.
2. With the intent of committing a felony therein.
   - Entering to retrieve your own property is NOT requisite intent (missing specific intent for larceny)
   - The felony need not be carried out; all that is required is that the person committing the crime have the intent to commit a felony at the time of entry
   - The intent to commit a felony must exist at the time of entry. If such intent is formed after the entry is completed, common law burglary has not been committed.

Question 49

Can a defendant invoke their 5th Amendment right to refuse to participate in a lineup?

Answer 49

No, because a lineup does not involve compulsion to give “testimonial” evidence

Question 50

Can the police search someone not named in the search warrant?

Answer 50

If a person is not named in the warrant and circumstances justifying an arrest of that person do not exist, the police may search her for the objects named in the search warrant only if they have probable cause to believe that she has the named objects on her person.

• Mere presence at a place for which the police have a search warrant does not authorize a search of a person not named in the warrant. Only if the police obtain probable cause to arrest a person on the premises may the person be searched (as incident to the arrest).

Question 51

Commission of act by member of class protected by statute

Answer 51

Members of a class protected by a statute that has been violated are EXEMPT from liability.

• If a statute is intended to protect members of a limited class from exploitation or overbearing, members of that class are presumed to have been intended to be immune from liability, even if they participate in the crime in a manner that would otherwise make them liable.
• Cannot be guilty of a conspiracy to commit the crime
• Cannot be guilty of being an accomplice to commit the crime

Question 52

Interrogations by Informants

Answer 52

Miranda does not apply where interrogation is by an informant who the defendant does not know is working for the police, because the coercive atmosphere of police-dominated interrogation is not present

• Does not matter if nformant’s conduct has been deliberately designed to elicit incriminating remarks

Question 53

Confrontation Clause

Answer 53

Under the Sixth Amendment, a defendant in a criminal prosecution has the right to confront adverse witnesses at trial.

• If two persons are tried together and one has given a confession that implicates the other, the right of confrontation generally prohibits the use of that statement because the other defendant cannot compel the confessing co-defendant to take the stand for cross-examination.
• A co-defendant’s confession is inadmissible even when it interlocks with the defendant’s own confession, which is admitted.
• The Supreme Court has held that instructing the jury to consider the confession only as going to the guilt of the confessing defendant is inadequate to avoid Confrontation Clause problems, because the risk that the jury will not follow the limiting instructions is too great in this context
• Confessions of a co-defendant may be admitted if
  1. All portions referring to the other defendant can be eliminated (so that there is no indication of that defendant’s involvement)
  2. The confessing defendant takes the stand and subjects himself to cross-examination regarding the truth or falsity of the statement, or
• The opportunity at trial to cross-examine the co-defendant satisfies the Confrontation Clause, even if he denies culpability.
  3. The confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, and the jury is instructed as to that purpose.

Question 54

Consent Defense

Answer 54

Applicable to crimes requiring lack of consent, e.g., rape, and minor assaults and batteries

• Applicable only if consent is freely given, the party is capable of consenting, and no fraud was used to obtain consent

Question 55

Conspiracy

Answer 55

Conspiracy consists of

1. An agreement between two or more persons
   - The parties must agree to accomplish the same objective by mutual action
   - Common law: there must be a meeting of at least two “guilty minds”; i.e., between two or more persons who are actually committing themselves to the scheme. If one person in a two-party conspiracy is only feigning agreement, the other person cannot be convicted of conspiracy under the common law bilateral approach
   - MPC: unilateral approach, requires that only one party have genuine criminal intent, and may be shown by proof that the defendant agreed with another to commit a crime, even if the other person does not share the commitment.
2. An intent to enter into an agreement; and
3. An intent to achieve the objective of the agreement

Overt act: most states require an act in furtherance of the conspiracy, although an act of mere preparation will usually suffice

Does NOT merge into target offense

Withdrawal is not a defense

Question 56

Use of deadly force in self defense

Answer 56

A person may use deadly force in self-defense if

1. Is without fault
   - Generally, one who is at fault for starting a confrontation has no right to use force in his own defense during that confrontation. However, if the victim of the initial aggression suddenly escalates a relatively minor fight into one involving deadly force and does not give the aggressor a chance to withdraw or retreat, the aggressor may use deadly force in his own defense.
2. Is confronted with unlawful force, and
3. He reasonably believes that he is threatened with imminent death or great bodily harm.

* In a majority of states, a person may use deadly force in self-defense even if this could be avoided by retreating. Other courts, however, do require retreat before the use of deadly force, but only if the retreat can be made in complete safety.

* Some states may say that if one of these element are met, it’s an “imperfect defense” and downgrades murder to manslaughter

Question 57

Use of deadly force to prevent a crime

Answer 57

A person is privileged to use deadly force to prevent a crime only if it is an inherently dangerous felony.

Question 58

Defects sufficient to quash a grand jury indictment

Answer 58

Exclusion of minorities

Question 59

Denial of bail

Answer 59

If a state provides for bail, arbitrary denials of bail will violate due process. Detainees must be given the opportunity to show eligibility.

• 8th Amendment is not a great argument

Question 60

Diminished capacity

Answer 60

As a result of mental defect short of insanity, defendant did not have required mental state to commit crime

• Usually limited to specific intent crimes

Question 61

Double Jeopardy

Answer 61

The Fifth Amendment provides that no person shall be twice put in jeopardy for the same offense.

* Separate sovereigns can try for the same offense! DJ does not apply

ATTACHMENT:

• Jeopardy attaches in a jury trial when the jury is impaneled and sworn in, even if it has not yet heard any evidence
• Bench trial:
• Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes.
• A prosecution for conspiracy is not barred merely because some of the alleged overt acts of that conspiracy have already been prosecuted
• A person may not be convicted of both the greater offense and a lesser included offense because they merge
• Imposition of cumulative punishments for two statutorily defined offenses arising from the same transaction and constituting the same crime does not violate double jeopardy when the punishments are imposed at a single trial, as long as the two offenses were specifically intended by the legislature to carry separate punishments

Question 62

Does double jeopardy apply after a mistrial?

Answer 62

Even if jeopardy has attached, will not prevent re-trial when a mistrial is granted in the first trial at the request of the defendant on any ground not constituting an acquittal on the merits

• Must be in good faith

Question 63

Does double jeopary prevent hearing defendant’s charges in two different trials?

Answer 63

Where charges could be tried in a single trial, but defendant consents to having two separate trials - no DJ violation

Question 64

Effect of Acquittal of Some Conspirators

Answer 64

If the defendant and others alleged conspired and only the defendant is charged and tried, the defendant can be convicted

If the defedant is being charged and tried and ALL THE OTHERS have been acquitted, the defendant cannot be convicted (no one with whom defendant could conspire)

Question 65

Effect of Confession Obtained without Miranda Warnings

Answer 65

As long as the failure to warn was not PURPOSEFUL, may not be sufficient to justify excluding the nontestimonial “fruits” of the confession

• C.f. involuntary confession, must exclude “fruits” of the confession

Question 66

Embezzlement

Answer 66

Fraudulent conversion of the property of another by a person in lawful possession of it

• Use of property that is inconsistent with terms of the trust
• Requires intent to defraud

Question 67

Entrapment

Answer 67

Criminal design originated with the police and the defendant was not predisposed to commit the crime before contact with the police

• Defense to most crimes
• Not available if police merely provide an opportunity to commit a crime

Question 68

Exigent Circumstances

Answer 68

If the police have reason to believe that someone is destroying evidence, they can enter their home without a warrant to prevent the destruction.

Question 69

False Pretenses

Answer 69

Obtains TITLE to the property of another by an intention or knowing false statement of past or existing fact with the intent to defraud another

Question 70

Felony murder

Answer 70

The felony murder rule provides that a killing, even an accidental one. committed during the course of a felony is murder. Accidental killing that occurs during the commission, or attempted commission, of an INHERENTLY DANGEROUS felony (BARRK - Burglary, Arson, Rape, Robbery, Kidnapping). A killing committed during the course of a felony is murder, malice being implied from the intent to commit the underlying felony.

• All parties to the felony are liable for the murder as long as
  1. It was committed during the commission of the felony or in fleeing from the scene, and
  2. It was a foreseeable result of commission of the felony
• Courts have been willing to find most deaths committed during a felony to be foreseeable

* The only mens rea required is the intent to commit the underlying felony

* Under the majority view, criminal liability for murder cannot be based on the death of a co-felon from resistance by the victim or police pursuit

Question 71

Warrantleess

Answer 71

Absent an emergency, a forcible, warrantless entry into a residence for the purpose of making a felony arrest is an unconstitutional violation of the Fourth Amendment as made applicable to the states by the Fourteenth Amendment.

Question 72

Forgery

Answer 72

The making or altering of a false instrument with the intent to defraud. Falsity must be about the INSTRUMENT ITSELF, not the contents of the instrument.

Question 73

General intent crimes

Answer 73

Awareness of acting in proscribed manner. Subjective test.

1. Battery
2. Rape
3. Kidnapping
4. False imprisonment

Question 74

Role of the grand jury

Answer 74

Determines whether there is probable cause to go to trial.

• Exclusionary rule does not apply; can consider any available evidence.

Question 75

Requirements for a guilty plea

Answer 75

A guilty plea is a waiver of the Sixth Amendment right to a jury trial.

• To be a valid waiver, the judge must determine on the record that the guilty plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.
• To ensure that this is the case, the judge should make sure that the defendant is informed of the nature of the charge to which the plea is offered, of the maximum possible penalty, that she has a right not to plead guilty, and that by pleading guilty she waives her right to a trial.

Question 76

Homicide

Answer 76

Killing with malice aforethought
- Reckless disregard for human life (depraved heart)

Question 77

Imposition of the death penalty for felony murder

Answer 77

The Supreme Court has held that, under the Eighth Amendment, the death penalty may not be imposed for felony murder where the defendant, as an accomplice, did not take or attempt or intend to take life, or intend that lethal force be employed

Question 78

Impossibility

Answer 78

“If the defendant were able to complete all of the acts that they intended to do, and if all of the attendant circumstances were actually as the defendant believed them to be, would the defendant have committed a crime?

• YES: factual impossibility, not a defense. Substantantive crime is incapable of completion due to some physical or factual condition unknown to the defendant
• NO: legal impossibility defense; by completing all steps, would have committed no crime

Question 79

Infancy

Answer 79

Defendant under 14 at common law; under modern statutes, 13 or 14

Common law:

• Under Age 7: defense to all crimes
• Under Age 14: rebuttable presumption of defense

Modern statutes: defense to adult crimes, but may still be delinquent

Question 80

Interrogation

Answer 80

interrogation refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Question 81

Involuntary Intoxication

Answer 81

Taking intoxicating substance without knowledge of its nature, under duress, or pursuant to medical advice

• Treated as a mental illness, defense to all crimes

Question 82

Is a confession obtained in violation of Miranda nonetheless admissible?

Answer 82

A confession obtained in violation of a defendant’s Miranda rights but otherwise voluntary may be used against the defendant for purposes of impeachment, but there is no such rule for use of the confession for other purposes.

Question 83

Is a warrant required to search a parolee’s home?

Answer 83

The Supreme Court has held that the Fourth Amendment is not violated by a statute authorizing warrantless searches of a parolee’s home, even absent probable cause, if a statute provides for such searches.

• The parolee has a diminished expectation of privacy and the government has a heightened need for searching parolees; thus the search is reasonable in a constitutional sense.

Question 84

Is mistake a defense?

Answer 84

An HONEST and REASONABLE mistake as to a material ELEMENT of the offense would negate criminal liability for all crimes except strict liability offenses.

• Consider, e.g., if they made diligent efforts to discover someone’s age
• General intent crimes if REASONABLE
• For specific intent crimes, defense if it is an HONEST mistake

Mistake of LAW: no defense, even if reasonable

Question 85

Larceny

Answer 85

1. The taking and carrying away (asportation)
   - Satisfied as long as there is some movement of the property as a step in carrying it away. The movement need only be slight as long as it was part of the carrying away process.
2. Of the personal property of another
   - If they believed the property was their OWN, she lacked the requisite intent!
3. By trespass
4. With the intent to permanently deprive the owner of his interest in the property WHEN they took it
   - Otherwise, not larceny, unless is continuing trespass (decide to keep it)

Question 86

Malice Crimes

Answer 86

Reckless disregard of a known risk, subjective test

1. Common law murder
2. Arson

Question 87

Merger

Answer 87

Does not apply to conspiracy

Question 88

May a party call a new witness after a pre-trial order has been entered?

Answer 88

The property owner may call the additional witness only if the court modifies the pretrial order, since a pretrial order controls the subsequent course of an action unless modified.

• The order will be modified “only to prevent manifest injustice.”
• A court will consider the timing of the request in determining whether to modify the pretrial order, there is nothing to prevent a judge from modifying the order, even if the trial has begun.

Question 89

MPC states of mind

Answer 89

Purposely: conscious object to egnae in proscribed conduct

Knowing: awareness that conduct is of a particular nature or will necessarily or very likely cause a certain result

Reckless: conscious disregard of a substantial and unjustifiable risk; gross deviation from the standard of reasonable care

Negligent: failure to be aware of a substantial and unjustifiable risk

Question 90

Omission as a criminal act

Answer 90

There must be a duty to act.

• No Good Samaritan law requiring people to help others in trouble, no matter how easy it would be to help

Question 91

Parties to a Crime

Answer 91

1. Principals are those who, with the requisite mental state, actually engage in the act or omission that causes the criminal result.
   - Liable for principal crime
2. Accomplice is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the offense.
   - Under modern statutes, accomplices are generally treated as principals
   - Liable for principal crime if intended to aid or encourage crime
3. 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.
   - Unlike an accomplice, an accessory after the fact has committed a separate crime with a punishment unrelated to the felony committed
   - The crime committed by the principal must have been completed at the time aid is rendered

Question 92

Rights of passengers in a car

Answer 92

Each passenger in a car has standing to challenge a STOP of the car.

• If a stop is invalid, under the fruit of the poisonous tree doctrine, evidence obtained as a result of the invalid stop will be suppressed.
• An officer may stop a car for violating a traffic law
• A person may seek suppression of evidence that has been SEIZED only if the seizure is in violation of the person’s own constitutional rights

Question 93

Police checkpoint

Answer 93

The police may set up roadblocks to stop cars without individualized suspicion that the driver has violated some law, as long as they

1. Stop cars on the basis of some neutral, articulable standard
   - E.g., every car or every third car
2. Are motivated by a particular problem related to automobiles and their mobility
   - E.g., drunk driving

Question 94

Probable Cause

Answer 94

A warrant must be based on a showing of probable cause.

• Along with a request for a warrant, a police officer must submit to a magistrate an affidavit setting forth sufficient underlying circumstances to enable the magistrate to make a determination of probable cause independent of the officer’s conclusions.
• The affidavit may be based on an informer’s statements. Among the factors determinative of probable cause are the informer’s reliability, credibility, and basis of knowledge. Failure to disclose the identity of the informer does not necessarily invalidate the search warrant.
• May be based on hearsay, if the information comes from a reliable informer
• The sufficiency of the affidavit is evaluated according to the “totality of the circumstances.”
• There must be sufficient information for the magistrate to be able to make a common sense evaluation of probable cause.

Question 95

Receipt of Stolen Property

Answer 95

What is the property’s status at the time defendant receives it?

• If the police have already recovered it and use it with the owner’s permission, it is no longer stolen. Can only be convicted of attempted receipt of stolen property.

Question 96

Requirements for a valid confession

Answer 96

Knowing (waiver of Miranda rights) and intelligent. Not coerced.

Question 97

Requirements for Proper Execution of a Warrant

Answer 97

1. Without unreasonable delay
2. After announcement (unless officers or evidence would be endangered)
3. Person or place searched or seized within scope of warrant

Question 98

Right to speedy trial

Answer 98

The Sixth Amendment right to a speedy trial does not attach until the defendant has been arrested or charged.

• Pre-arrest delays do not violate this standard, nor do they violate general due process requirements unless they were in bad faith and prejudice the defendant. Otherwise, the only limitation on pre-arrest delay would be the statute of limitations for the particular crime.

Question 99

Searching for the suspect in 3d party’s home

Answer 99

Absent exigent circumstances, the police executing an arrest warrant may not search for the subject of the warrant in the home of a third party without first obtaining a separate search warrant for the home.

• If the police do execute an arrest warrant at the home of a third party without obtaining a search warrant for the home, the arrest is still valid but evidence of any crime found in the home cannot be used against the owner of the home because it is the fruit of an unconstitutional search.
• A person can be arrested at the home of a third party, but the police generally cannot enter the third party’s home without consent unless they have a search warrant for the home

Question 100

Self defense

Answer 100

Right to self defense depends on the IMMEDIACY of the harm

Question 101

Self defense with non-deadly force

Answer 101

Necessary to avoid imminent injury or to retain property

Question 102

Solicitation

Answer 102

Solicitation of another to commit a crime

• Specific intent that person solicited commit the crime
• No overt act other than the solicitation
• Merges into substantive offense
• Withdrawal is not generally a defense

Question 103

Specific Intent Crimes

Answer 103

Intent to engage in the proscribed conduct. Subjective test.

“Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts”
1. Solicitation

2. Conspiracy
3. Attempt
4. First Degree Premeditated Murder
5. Assault
6. Larceny
7. Embezzlement
8. False Pretenses
9. Robbery
10. Burglary
11. Forgery

Question 104

Standing for 4th Amendment Claim

Answer 104

To raise a Fourth Amendment claim of an unreasonable search or seizure, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized.

• It is not enough merely that someone has an expectation of privacy in the place searched…
• The Supreme Court has imposed a standing requirement so that a person can complain about an evidentiary search or seizure only if it violates her own REASONABLE expectations of privacy. The Court has held that a person has a reasonable expectation of privacy any time
  1. She owned or had a right to possession of the place searched
  2. The place searched was in fact her own home, whether or not she owned or had a right to possession of it
  3. She was an overnight guest of the owner of the place searched

Question 105

Stipulation of ownership

Answer 105

Defendant has the right to testify and stipulate to facts at a suppression hearing without her testimony or stipulation being admitted against her at trial on the issue of guilt.

• Allows a defendant to assert a possessory or ownership interest in illegally seized evidence just for purposes of invoking the exclusionary rule; if she fails to have the evidence excluded, she may still deny possession or ownership at trial.

Question 106

Strict liability offense

Answer 106

If the crime is in the administrative, regulatory, or morality area and there are no adverbs in the statute such as “knowingly,” “willfully,” or “intentionally”

• Conscious commission of the proscribed act
  1. Statutory rape
  2. Selling alcohol to minors
  3. Bigamy (some jxns)

Question 107

Transferred intent

Answer 107

Intend the HARM that is actually caused, but to a different VICTIM

• Usually found guilty of two crimes
  1. Completed crime against the actual victim
  2. Attempt against the intended victim

Question 108

Violation of Knock and Announce

Answer 108

Whether or not the “knock and announce rule” was violated will not affect admissibility; the exclusionary rule will not apply to evidence resulting from a search violating that rule.

Question 109

Voluntary Intoxication

Answer 109

Voluntary, intentional taking of a substance known to be intoxicating

• Voluntary intoxication is not a defense to crimes requiring malice, recklessness, or negligence.
• For crimes that require recklessness, a person who would have been aware of the risk had he not been intoxicated acts recklessly w/r/t the risk
• Defense is not available if defendant purposely becomes intoxicated in order to establish the defense

* Defense to specific intent crimes if intoxication prevents formation of required intent

Question 110

Voluntary Manslaughter

Answer 110

Voluntary manslaughter is a killing committed under the duress of an adequate provocation, and it requires

1. A provocation sufficient to arouse the sudden and intense passion in the mind of an ordinary person such as to cause him to lose self-control;
2. The defendant to be in fact provoked;
   - Includes being subjected to a serious battery or a threat of deadly force
3. An insufficient time to cool off; and
4. The defendant did not in fact cool off.

* Occurs only as to the person who provoked the defendant; would not justify the killing of a third party.

* Reduces killing from murder to manslaugther

Question 111

Warrantless Search Exceptions

Answer 111

1. Incident to constitutional arrest
2. Automobile search
3. Plain view
4. Consent
5. Stop and Frisk
6. Hot pursuit, exigent circumstances, evanescent evidence, emergency aid

Question 112

Arrest warrant v. search warrant

Answer 112

Arrest warrant does not give the right to search someone else’s home.

Question 113

What if a warrant is ultimately found to not have probable cause?

Answer 113

Evidence obtained by the police in reasonable reliance on a facially valid warrant may be used by the prosecution

• Must be in good faith

Question 114

When do police need an arrest warrant?

Answer 114

Arrest warrants are usually required only for arrests made in the person’s home.

• Police generally do not need to obtain a warrant before arresting a person in a public place, even if they have time to get a warrant, as long as the arrest is based on probable cause.

Question 115

When does the right to speedy trial attach?

Answer 115

Only after defendant has been arrested or charged.

Question 116

When will a search warrant issued based on an affidavit be invalid?

Answer 116

1. False statement was included in the affidavit by the affiant
2. The affiant intentionally or recklessly included the false statement and
3. The false statement was material to finding the probable cause

* Very restrictive, must meet all 3 requirements. Rarely successfully challeneged.

Question 117

When will an intervening act shield defendant from liability?

Answer 117

Mere coincidence or unforseeable; if so, will be deemed to be the cause of death

Question 118

Withdrawal from conspiracy

Answer 118

* Withdrawal is not a defense to a charge of conspiracy

• A conspiracy is complete as soon as an agreement is made and an overt act is committed
• By withdrawing, a person may limit her liability for subsequent acts of the other members of the conspiracy

Common law: not a defense; requires

1. Affirmative act, notifying all members of conspiracy of intent to withdraw,
2. Notification must be done in a timely fashion so they have the opportunity to withdraw as well

MPC: defense. Must attempt to THWART/thwart the crime.