Crim Law BLL

Question 1

Manslaughter - Intent relationship

Answer 1

Intent has nothing to do with Manslaughter. Thus, voluntary intoxication is not a defense to Manslaughter.

Question 2

5th Amendment

Answer 2

privilege against self-incrimination protects against government-coerced confessions

D must assert right to silence or right to counsel for questioning to stop
b. Only governs compelled testimonial evidence (not physical). Body, voice sample, lineup, handwriting not protected
line up - should not be overly suggestive.

Voluntariness: For a self-incriminating statement (such as D s admission) to be admissible it must be free and voluntary as determined by totality of circumstances (not motivated by police coercion or official pressure). a statement is not considered involuntary when it is the result of mental disease

5th amendment protection only applies to an individual, not a company
5th amendment protection only applies to an the statements, not business records

Question 3

5th Amendment right - Ways to eliminate privilege against self-incrimination and compel answers

Answer 3

Use and derivative immunity: testimony and derived evidence can’t be used against immunized D

Transactional immunity: complete protection from prosecution for self-incriminating testimony

Extinguish by waiver: D waives privilege against self-incrimination and takes the stand

Question 4

5th Amendment - Miranda Warning

Answer 4

Must be given before any custodial interrogation. For D’s statement to be admissible under 5A privilege against self-incrimination, D must have been reasonably informed of his right to remain silent, anything said can be used against him in court, and right to an attorney’s presence (and if he cannot afford an attorney, one will be provided, if he wants). No exceptions even for minor crimes
No miranda rights if it’s a voluntary statement.
i. custody = reasonable person in PO’s presence feels he is not free to leave or end the encounter. A traffic detention is non-custodial in nature
ii. Interrogation = reasonable PO knows/should know he is reasonably likely to elicit incriminating response
1. Routine questioning (e.g., booking, probation interview) is not considered interrogation
2. Miranda forbids coercion, not strategic deception: Warning not required when suspect is unaware he is speaking to a police informant and gives voluntary stmt
iii. The only result of Miranda violation (failure to give warning before custodial interrogation) is inadmissibility in case in chief. OK to use to impeach credibility.
v. Waiver: D must show knowing, voluntary, intelligent waiver
vi. Invocation: D may terminate interrogation any time by unambiguously invoking right to silence or counsel
1. Police may reinitiate Qs after right to silence, on unrelated crime after some time and re-Mirandizing
2. Re-initiation after right to counsel only if D reinitiates.
3. Public safety EXCEPTION: Warnings need not be given if necessary for public safety (e.g., info about bomb that could go off in public)

Question 5

ineffective assistance of counsel

Answer 5

6A right to counsel includes the right to effective counsel. Effective assistance is generally presumed. To claim ineffective assistance, D must show deficient performance + actual prejudice

i. Deficient performance: Show particular acts/omissions reasonably competent practitioner would not make
ii. Actual prejudice: Reasonable probability that the result would have been different but for errors
iv. It is a 6A violation to represent more than one D, when a conflict of interest jeopardizes rights of any co-D or adversely affects the attorney’s performance (burden on D to show the conflict’s adverse effect)

Question 6

Accomplice liability

Answer 6

Accomplice liability: D is liable as an accomplice if he aided or encouraged (or omitted action with duty to act) the principal’s commission of a crime, with intent to encourage the principal commit the crime
- specific intent
If the crime isn’t completed, accomplice is only guilty of accomplice liability
i. Examples: Selling ordinary goods at higher price for buyer’s criminal purpose may imply intent to aid. Mere presence w/o “aiding and abetting” is insufficient, but saying “kill him” is sufficient encouragement
ii. An accomplice is liable to same extent as principal for the crime counseled and for any other crimes by the principal that were probable or foreseeable (objectively natural consequences of the crime assisted)

DEFENSE: Withdrawal
1. CL: Withdraw w/ timely notice to principal + nullify prior assistance → can cut off future liability
2. MPC: 1) Render prior assistance ineffective, 2) provide police with timely warning, or 3) make a proper effort to prevent the perpetrator from committing the crime

Question 7

An accessory before the fact

Answer 7

aids or abets but is not present at the commission of criminal act

Question 8

An accessory after the fact

Answer 8

Felony completed
Knowledge of the completed crime
Aid to avoid arrest or conviction

Question 9

Burglary

Answer 9

Common law
Breaking and entering of the dwelling house of another at nighttime with intent to commit a felony therein
i. breaking: Even a slight application of force is considered “breaking” (e.g., slightly opening a window)
ii. Constructive breaking: Gaining entry by means of a fraud, misrepresentation of identity, or threat
1. Breaking into a subarea (e.g., closet) counts, but breaking to get out is NOT a breaking
Not a breaking: a wide-open door/window
Not a dwelling of another: office, store, or your own home
iii. Placing a body part (or inanimate extension) inside structure to do the felony qualifies as “entering”
iv. Intent to commit felony must be present at time of entry. Later-acquired intent not sufficient.
Felony does NOT HAVE TO be actually committed.

v. Modernly, expanded to include all kinds of structures (including cars) at any time (including daytime)

Question 10

Larceny

Answer 10

(1) Trespassory (without consent) (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with the intent to permanently (or for an unreasonable length of time) deprive the owner

1. personal property - Realty and fixtures (e.g., crops) cannot be the subject of larceny, unless severed (harvested crops). Gas & electricity considered personal property
   Intent to permanently deprive required at the time of taking (second thought은 irrelevant하다. 슬쩍했다가 나중에 withdraw»> no applicable 혹은 나중에 permission을 받은것도 irrelevant하다)

NOT subject to larceny: Abandoned property (because no deprivation of owner), EXCEPT…
a. Lost property, if finder intends to permanently deprive its owner and knows, or has reason to believe he can learn, the owner’s identity at moment of possession
b. Misdelivered property, if recipient realizes mistake and decides to steal at time of delivery
Wrongfully obtained services do not give rise to larceny

DEFENSES
a. Intent to return: D takes property with intent to return unconditionally w/in reasonable time, UNLESS D changes his mind and decides not to return it (“continuing trespass”)
b. Claim of right: D takes property as repayment of debt
c. Mistake: If honest mistake. Such mistake may be unreasonable

Question 11

Inchoate crime (attempt)

Answer 11

An intent to commit the crime + an act beyond mere preparation in furtherance of that intent
i. Requires a significant, overt act more than mere preparation
(MPC: “substantial step”)&raquo_space; you actually do something, not just 떠드는거말고
ii. DEFENSES
Legal impossibility: Attempt to do a legal act that was thought to be a crime but is no crime

NOT a defense: Factual impossibility (crime cannot be completed because of physical or factual condition unknown), Withdraw after substantial step (시도하다가 관두는거 불가)

Merger - merges into the completed crime
cannot be guilty of both attempt and the underlying crime

Question 12

6A - right to a fair trial

Answer 12

The Sixth Amendment guarantees an accused person a fair trial. That right includes the right to an impartial jury, which is a jury free from unfair influences. A violation of this protection occurs if a jury or any of its members is pressured or influenced in a way that could impair their judgment.
Judges, who, in jury instructions, generally instruct on standards of proof and applicable law, may not instruct the jury regarding which verdict to return.

Question 13

Receiving stolen property

Answer 13

D (1) receives possession of stolen personal property, where (2) Δ knew or believed it was stolen by another, with (3) the intent to deprive the owner of his interest in the property

May infer knowledge or belief from abnormally low price
Once police intercepts stolen property, it loses its character as stolen property, but D may be guilty of attempted receipt of stolen property if he intended to receive it, believing it was stolen

Question 14

Is the situation where the D did not seek the medical treatment while stabbed foreseeable?

Answer 14

For a homicide conviction, the defendant’s act must have been the proximate cause of the death of a victim. A proximate cause is an act that produces foreseeable consequences. It is foreseeable that an injured person may refuse to get medical attention, and a victim’s refusal to seek medical attention will not break the chain of causation.

Whether an intervening act is sufficient to break the chain of causality in a homicide case rests on the foreseeability of the intervening act. A defendant will be held criminally responsible for the foreseeable consequences of his actions; however, if an unforeseeable act intervenes, a defendant will not be deemed responsible for the death.

Question 15

Rule 43. Defendant’s Presence

Answer 15

a) When Required. the defendant must be present at:

(1) the initial appearance, the initial arraignment, and the plea;
(2) every trial stage, including jury impanelment and the return of the verdict; and
(3) sentencing.

(b) When Not Required. A defendant need not be present

(1) Organizational Defendant. The defendant is an organization represented by counsel who is present.

(2) Misdemeanor Offense. The offense is punishable by fine or by imprisonment for not more than one year, or both

(3) Conference or Hearing on a Legal Question.

(4) Sentence Correction.

(c) Waiving Continued Presence.

(1) In General. A defendant who was initially present at trial, or who had pleaded guilty or nolo contendere, waives the right to be present u

Question 16

Valid warrant - Generally

Answer 16

A search/seizure must be made with a valid W, which must be (1) issued by neutral, detached magistrate, (2) based on probable cause, and (3) described with particularity the place to be searched or item/person to be seized (4) police cannot exceed the scope of the warrant

1. Probable Cause can be based on an informant’s tip, which must meet the totality of the circumstances test: practical, common-sense considerations May be based on an anonymous tip
2. police must show recent facts, not hunches or “known for.”
   - To attack inaccuracies in a facially valid warrant, Δ must show material false statements made intentionally or recklessly
   ii. Scope: Reasonably necessary to discover items. Must be executed w/o unreasonable delay
3. Search of premises/car excludes the people present (mere presence doctrine), unless to be arrested (search incident)
   iii. Knock and announce rule: Police must give notice and wait a reasonable time before entering to execute W, except when there is RS that announcing will lead to destruction of evidence, endanger officers, or be futile
   iv. Good faith EXCEPTION to invalid W: Evidence or person seized via a facially valid (particular) but defective Warrant is admissible if a reasonably well-trained police acted in good faith thinking that the W was valid

Plain view
- police can seize what is in plain view while during a lawful search
- 코카인을 찾다가 대마를 발견&raquo_space; OKAY
- Warrant에 따라서 코카인을 찾고서, 더 찾아봐서 대마를 발견&raquo_space; NOt okay

Illegal Search
- Illegal search does not mean the dismissal of indictment

Question 17

Protective Sweep

Answer 17

(at home when executing arrest warrant): ONLY If police has reasonable suspicion of danger/attack from others in the home, (for SAFETY Reason) may sweep spaces where another person might be hiding (e.g., not drawers)

Question 18

Pretrial identifications

Answer 18

In post-indictment lineup or showup, right to counsel at all times he is visible to witnesses
i. Due process (5A/14A) applies to all pretrial IDs: Any lineup, showup, or photo ID is inadmissible as denying due process if it was unnecessarily suggestive + there is substantial likelihood of misidentification
1. Consider what’s “suggestive”
a. EXCEPTIONS: necessary under circumstances (e.g., lineup is impractical because witness is near death), or ID is reliable based on a TOTC assessment
ii. Remedy: Results of pretrial ID is per se inadmissible at trial, BUT the prosecution would still be able to prevail on a motion to suppress the testimony if it could show that the in-court identification is reliable independent. Otherwise suppress

Question 19

Conspiracy

Answer 19

Common law
- two guilty minds
- specific intends to commit crime
- agreement (전날 악수만 해도 agreement 가능)

MPC
- one guilty mind
- the police can set you up

Co-conspirator’s liability
A co-conspirator is liable for all crimes committed in furtherance of conspiracy (뜬금없는 추가범죄면 not liable)
- Does not merge into the underlying crime

Withdrawl
- cannot withdraw from the conspiracy itself
- can withdraw from other crimes by timely noticing (before it happens)

Question 20

Automobile stop

Answer 20

(1) 아무 이상이 없는데 그냥 세움&raquo_space; illegal search and seizure
(2) traffic violation (speeding ticket)
-police cannot search the car, only issue the ticket unless some evidence of other crimes. During a stop for traffic violation, police cannot search the car, glove box, or trunk. (운전자, 동승자 모두 차 밖으로 나오게 하는것 가능)
(3) probable cause
police may search the entire car if probable cause the car is carrying contraband

Question 21

Duty to retreat - applicable to the use of deadly force

Answer 21

Under the “retreat” doctrine, a non-aggressor has the duty to retreat from a threatening situation if he can do so with complete safety. A duty to retreat generally means that you can’t resort to deadly force in self-defense if you can safely avoid the risk of harm or death (by walking away, for example). If that’s not an option, you would be authorized to use deadly force in self-defense. A person has no duty to retreat unless he intends to use deadly force

Question 22

Assault

Answer 22

Intent to commit a battery
Intent to place another in reasonable apprehension of imminent bodily harm or offensive contact
Words alone are not enough (some conduct is needed)

Question 23

duty to disclose exculpatory material

Answer 23

The untimely disclosure of evidence favorable to the defense (including impeachment information), whether willful or inadvertent, is unconstitutional under the Due Process Clause.

Such a Brady violation is grounds for reversal or a new trial if the defendant can prove that: (i) the evidence was favorable because it is impeaching or exculpatory; and (ii) prejudice resulted, meaning earlier disclosure of the evidence would have created a reasonable probability of a different outcome. Strickler v. Greene, 527 U.S. 263 (1999).

Question 24

Felony murder applies where there is a killing during the course of a violent felony. If the killing is foreseeable from the illegal actions, then an accomplice can be convicted of felony murder. In other words, if a death is caused in the course of a conspiracy to commit a felony, all members of the conspiracy are liable for murder if the death was caused in furtherance of the conspiracy and was a foreseeable consequence.

Question 25

The Eighth Amendment - disproportionate penalty

Answer 25

prohibits the imposition of a penalty that is grossly disproportionate to the seriousness of the offense committed. The death penalty may not be imposed as a punishment for felony murder upon an accomplice who “did not take or attempt or intend to take life, or intend that lethal force be employed.” Enmund v. Florida, 458 U.S. 782 (1982). However, an accomplice to felony murder may be given the death penalty, even if he did not kill or intend to kill, if he participated in a major way in the underlying felony that resulted in murder and acted with reckless indifference to the value of human life. Tison v. Arizona, 481 U.S. 137 (1987).

Question 26

A warrant is required to collect extensive historical site-location data from a cell-phone provider. Carpenter v. United States, 138 S. Ct. 2206 (2018). Here, the data sought was one year’s worth of site-location information, which clearly falls within the rule of Carpenter. In addition, Carpenter rejected the use of a subpoena to circumvent this warrant requirement. Thus, the police’s collection of the extensive cell-phone data was a violation of the Fourth Amendment.

Answer 26

While it is true that there is no reasonable expectation of privacy in information shared with a third party, the Court in Carpenter v. United States, 138 S. Ct. 2206 (2018) specifically rejected this principle with regard to historical cell-phone site-location data.

Question 27

The scope of cross examination

Answer 27

Cross-examination should be limited to the (1) subject matter of the direct examination and (2) matters affecting credibility;

Leading questions are generally prohibited on direct examination of witnesses. However, an exception to this rule is when the witness is “unfriendly” or adverse. The opposing party in a lawsuit will almost always be deemed to be unfriendly and therefore open to leading questions. See Fed. R. Evid. 611(c).

Question 28

The Fourth Amendment protects people from unreasonable searches and seizures by the state. Thus, if a private citizen, acting on her own volition, absent any encouragement or aid from the government, conducts an unconsenting search of another private citizen, it is not an illegal search within the meaning of the Fourth Amendment. Any evidence that is uncovered and turned over to the police is thus admissible in court. However, if a private citizen acted on behalf of the government, a court will likely exclude any fruits of the illegal search just as if a state actor had seized it.

Question 29

To meet the “force” element of robbery, any amount of force to overcome resistance is sufficient.
The timing of when the force is used is not part of the analysis.

Answer 29

Here, the man pushed the woman out of the way to get away, meeting the element of force. This use of force makes his crime robbery and not merely larceny.

Question 30

The girlfriend is a member of the protected class that the law was designed to protect. She was the victim here, and that is true even if she voluntarily engaged in sexual intercourse with her 18-year-old boyfriend. This is the very type of scenario that gave rise to statutory rape laws in the first place. Further, because victims cannot be convicted of participating in the crimes that victimize them, the girlfriend cannot be a conspirator to statutory rape. Because common law conspiracy requires an agreement between two or more people and the girlfriend could not be a conspirator to this crime, the boyfriend’s conspiracy conviction should be reversed.

Question 31

Using a non-testifying co-defendant’s inculpatory statement against the accused at trial presumably violates the accused’s Sixth Amendment right to confrontation. In co-defendant confession cases, the Confrontation Clause requires that an original defendant be given the opportunity to cross-examine a co-defendant whose confession is being used against the original defendant.

Answer 31

The cellmate’s testimony should not be admitted over the second defendant’s objection because a limiting instruction would not be sufficient to protect the second defendant’s constitutional right to confrontation. The first defendant made a confession regarding his guilt and the guilt of the second defendant. However, the first defendant himself is not testifying, which prevents the second defendant from having the opportunity to confront him on it. The Confrontation Clause requires that a defendant (here, the second defendant) be given an opportunity to cross-examine a co-defendant (here, the first defendant) whose confession is being used against him. The limiting instruction would not preclude a constitutional violation if this confession were introduced without the opportunity for confrontation.

Question 32

attempted murder requires the specific intent to kill because one cannot attempt to commit an unintentional result. Based on the given facts, the defendant did not have the intent to kill when he accelerated his car toward his co-worker in order to scare him, and therefore, cannot be convicted of attempted murder.

Answer 32

Murder는 4개

attempt murder의 intent는 only intent to kill

Question 33

Although FRE 704(b) prohibits an expert from testifying that a criminal defendant had or did not have the requisite mental state to commit the crime charged, that rule is applicable to criminal cases only. There is no absolute bar to such testimony in a civil case such as this