Crim Law/Pro

Question 1

Searches

Answer 1

Under the Fourth Amendment, a person is granted protection from unreasonable government searches. A search occurs when government conduct violates a person’s reasonable expectation of privacy. A warrantless search performed by the government that violates a reasonable expectation of privacy is unlawful.

Question 2

Places where one has a reasonable expectation of privacy

Answer 2

homes, hotel rooms, offices, backyard of home, luggage

Question 3

Places where there is not a reasonable expectation of privacy

Answer 3

public streets, open fields, garbage on the street, abandoned property, anything visible from public airspace, anything that can be seen inside one’s home from public space

Question 4

Warrant exceptions

Answer 4

Someone ESCAPES from the warrant requirement:

(1) exigent circumstances
(2) search incident to lawful arrest
(3) consent
(4) automobiles
(5) plain view
(6) evidence obtained from administrative searches
(7) Stop and frisk

OR CHEAP ASS

consent, hot pursuit, evanescent evidence, plain view, automobile, search incident to lawful arrest, and stop and frisk!

Question 5

Warrant requirements

Answer 5

(1) issued by a neutral magistrate; (2) based on probable cause; (3) describes the place and property to be searched with particularity

**if warrant fails these requirements, warrant is invalid and the recovered items will be excluded from the prosecutor’s case-in-chief

Question 6

Exigent Circumstanes

Answer 6

Law enforcement officers may conduct a search without warrant if: (1) the officers are in “hot pursuit” or immediate danger; OR (2) the evidence would spoil or disappear in the time it would take to obtain a warrant

Question 7

Search Incident to a Lawful Arrest

Answer 7

Law enforcement officers may conduct a search without a warrant if the search occurs at the time that a lawful arrest is made. The scope of the search is limited to objects within the reach of the arrestee.

Question 8

Consent

Answer 8

Can conduct a search without a warrant if a person consents to a search; officers do NOT have to inform the subject that she has the right to refuse to consent to the search.

A third party with apparent authority can consent to search. However, officers cannot search over a present occupant’s objection.

Question 9

Automobiles

Answer 9

May conduct a search without a warrant if they have probable cause to believe that an automobile contains contraband or evidence of a crime. They can search the parts of the vehicle and containers inside, which could reasonably contain the items for which there is probable cause.

Question 10

Plain View

Answer 10

May seize evidence without a warrant if: (1) officers are legally on the premises; (2) evidence is observed in plain view; AND (3) there is probable cause to believe the items are evidence of a crime or contraband

Question 11

Evidence Obtained from Administrative Searches

Answer 11

Law enforcement officers do NOT need search warrants to conduct administrative searches if the search is both: (1) reasonable; and (2) conducted pursuant to established police agency procedures that are designed to meet legitimate objectives while limiting the discretion of the officer (e.g. airplane boarding, borders, etc.)

Question 12

Stop and Frisk Terry

Answer 12

can stop an individual when the officer has a reasonable suspicion, based on articulable facts to believe that the subject is or is about to be engaged in criminal activity.

During a Terry stop, an officer can frisk for weapons but is limited to plain feel. If frisk for weapons reveals objects whose shape makes identity obvious, officer may seize those objects.

Question 13

In order to arrest a person

Answer 13

officer needs probable cause (witnesses commission or a person tells him). Individual may be arrested with or without an arrest warrant, but the warrant authorizes law enforcement officers to enter a home to arrest the individual.

Question 14

5th Amendment

Answer 14

Provides that no person shall be compelled in any criminal case to be a witness against himself.

Question 15

Custodial Interrogations

Answer 15

Under Miranda, any incriminating statement obtained as a result of custodial interrogation may NOT be used against the suspect at a subsequent trial UNLESS the police informed the suspect of his Miranda rights.

Question 16

Custodial

Answer 16

A person in custody when he reasonably believes that he is NOT free to leave

Question 17

Interrogation

Answer 17

A person is subject to an interrogation when the police know or should know that their words or actions are likely to elicit an incriminating response.

Miranda does NOT protect against volunteered statements that are not the product of interrogation

Question 18

Miranda waiver

Answer 18

A defendant may knowingly and voluntarily waive his Miranda rights. The burden is on the government to demonstrate by a preponderance of the evidence that the waiver was made knowingly and voluntraily

Question 19

Invocation of Right to remain silent

Answer 19

Party being questioned affirmatively invokes her right to remain silent OR after a substantial period of time, police can go back to the suspect, give Miranda warnings again, and seek to interrogate her further

Question 20

Invocation of right to counsel

Answer 20

The interrogation cannot resume until the lawyer is present, the suspect reinitiates the interrogation, or 14 days have passed since the suspect was released from custody

Question 21

Miranda violations

Answer 21

A statement obtained in violation of Miranda is inadmissible in the prosecution’s case-in-chief, BUT can be admitted to impeach the defendant. Evidence obtained from a voluntary statement taken in violation of Miranda is admissible.

Question 22

When do you not have to give Miranda warnings?

Answer 22

(1) when the public’s safety is at risk; (2) when the suspect being questioned is not aware that the interrogator is a police officer; OR (3) if the questioning is biographical for routine booking purposes.

Question 23

Harmless Error Rule

Answer 23

If evidence in violation of Miranda is admitted at trial, a guilty verdict will be upheld if the prosecution can prove beyond a reasonable doubt that the error was harmless because the defendant would have been convicted even without the tainted evidence.

Question 24

Voluntary nature of confession?

Answer 24

5th Amendment protects against government compulsion of involuntary statements. Statements are involuntary only if the police coerced the defendant into making the statements. Totality of the circumstances include: (1) length of interrogation; (2) time and location where it took place; (3) police tactics used; and (4) the character of the person being interrogated (experience, state of health, education level, etc.).

Question 25

Consequence of involuntarily obtained statement?

Answer 25

An involuntarily obtained statement is NOT admissible against a defendant for substantive purposes or for impeachment purposes. Evidence obtained from an involuntary statement is fruit of the poisonous tree and is presumptively inadmissible.

Question 26

6th Amendment Right to Counsel

Answer 26

Guarantees a criminal defendant "the assistance of counsel for his defense." Right automatically attaches once formal adversarial judicial proceedings have commenced. One right has attached, any attempts to deliberately elicit a statement from him in the absence of his attorney violates 6A. 6A right to counsel is offense-specific, meaning that it only applies to the offense that the defendant has been formally charged with. The police are free to question the defendant about unrelated offenses without his attorney present. 6A right to counsel is in effect once it automatically attaches UNLESS the defendant voluntarily, knowingly, and intelligently waives the right. Defendant must understand the nature of the right being waived and the consequences of waiving it.

Question 27

Photo Arrays

Answer 27

Neither the defendant nor his attorney has the right to be present, but the police must turn over the photo array to the defendant

Question 28

Pre-Indictment Lineups

Answer 28

Defendant does NOT have a 6A right to have counsel present during a pre-indictment lineup.

Question 29

Post-Indictment Lineup

Answer 29

The defendant has a 6A right to have counsel present during a post-indictment lineup. If that right is violated, then evidence that the witness identified the defendant at the lineup MUST be excluded

Question 30

LIneup impermissibly suggestive?

Answer 30

Court can exclude the evidence of it. However, the witness is permitted to identify the defendant in court if the prosecution can establish by clear and convincing evidence that the witness would have identified the defendant even without a suggestive lineup.

Question 31

Exclusionary Rule

Answer 31

Evidence obtained in violation of defendant's 4th, 5th, or 6th Amendment rights is inadmissible in a criminal case. All evidence obtained as a result of the constitutional violation is inadmissible as fruit of the poisonous tree. Do not apply to Miranda violations, only to 4th, 5th, and 6th Amendment violations

Question 32

Exclusionary Rule does not apply

Answer 32

(1) police had an independent source for the evidence that was distinct from the original illegal source; (2) discovery of the evidence was inevitable; (3) there is attenuation in the causal chain, such that intervening events and the passage of time can remove the taint; OR (4) the police relied in good faith on either: (i) existing law that was later declared unconstitutional; OR (ii) a warrant that, while facially valid, is later found to be defective

Question 33

Guilty plea

Answer 33

A guilty plea waives the various trial rights that a defendant would otherwise have

Question 34

Guilty plea to be valid

Answer 34

(1) inform the defendant of his rights (including jury trial) and ensures the defendant understands those rights; (2) inform the defendant of possible sentences (3) make sure there is a factual basis for the plea; (4) determine that the plea did not result from force, threats, or improper promises; AND (5) make sure that defendant understands the immigration consequences of pleading guilty

Question 35

Burden of proof

Answer 35

The prosecution MUST prove every element of a crime beyond a reasonable doubt in order to obtain conviction of the defendant. However, the government can shift the burden of proof to the defendant in regard to affirmative defenses argued by the defendant

Question 36

Double jeopardy

Answer 36

Ensures that the defendant is protected against: (1) prosecution for the same offense after acquittal; (2) prosecution for the same offense after conviction; and (3) multiple prosecutions or punishments for the same offense. Two distinct crimes do NOT constitute the "same offense" for double jeopardy purposes if each crime requires proof of a fact which the other does not.

Question 37

Essential Elements of a Crime

Answer 37

(1) physical act; (2) mens rea; (3) causation; (4) concurrence

Question 38

Specific Intent

Answer 38

Requires that the crime be committed with a specific intent or objective. The existence of specific intent cannot be conclusively imputed from the mere doing of an act, but the manner in which the crime was committed may provide evidence of intent

Question 39

Specific Intent Crimes

Answer 39

Students can always fake a laugh, even for ridiculous bar facts!

Question 40

Malice

Answer 40

The intent necessary for malice crimes require a reckless disregard of an obvious or high risk that the particular harmful result will occur. Defenses to specific intent crimes do NOT apply to malice

Question 41

Malice intent?

Answer 41

common law murder and arson

Question 42

General intent

Answer 42

Catch-all category of intent that requires the defendant to intend to commit an act that is prohibited by law

Question 43

Strict liability

Answer 43

statutory rape, selling liquor to minors, and bigamy

Question 44

Purposely

Answer 44

conscious objective is to engage in the conduct or to cause a certain result

Question 45

Knowingly or willfully

Answer 45

A defendant acts knowingly or willingly when the defendant is aware that his conduct is of the nature required by the crime or the circumstances required by the crime exist

Question 46

Recklessly

Answer 46

conscious disregard of substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct. a gross deviation from the standard of conduct of a law-abiding person

Question 47

negligently

Answer 47

defendant fails to perceive a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct. gross deviation from the standard of conduct of a reasonable person in the same situation

Question 48

Common Law Murder

Answer 48

Unlawful killing of a human being with malice aforethought. Malice aforethought exists if there are NO facts reducing the killing to voluntary manslaughter or excusing it and it was committed with one of the following states of mind: (1) intent to kill; (2) intent to inflict great bodily injury; (3) reckless indifference to an unjustifiably high risk to human life; OR (4) intent to commit a felony

Question 49

Voluntary Manslaughter

Answer 49

A killing that would be murder BUT FOR the existence of adequate provocation

Question 50

What is adequate provocation

Answer 50

(1) would arouse sudden and intense passion in the mind of an ordinary person, causing him to lose self-control AND (2) not sufficient time between the provocation and the killing for passions of a reasonable person to cool off

Question 51

Involuntary manslaughter

Answer 51

Unintentional killing committed: (1) with criminal negligence; OR (2) during an unlawful act

Question 52

Felony muder

Answer 52

Any death caused in the commission of, or in an attempt to commit, a felony is murder. Limitations: (1) defendant must have committed or attempted to commit the underlying felony; (2) felony must be distinct from the killing itself; (3) death must have been a foreseeable result of the felony; AND (4) death must have been caused before the defendant's immediate flight from when the felony ended

Question 53

Cause in fact murder

Answer 53

A defendant's conduct is the cause-in-fact of the victim's death if the death would not have occurred but for the defendant's conduct

Question 54

proximate cause murder

Answer 54

A defendant's murder is the proximate cause of the victim's death if the death is a natural and probable consequence of defendant's conduct. Superseding events break the chain of proximate causation, but a third party's negligent medical care and the victim's refusal of medical treatment for religious reasons are both foreseeable risks--thus, defendant remains liable

Question 55

Battery

Answer 55

(1) unlawful (2) application of force (3) to the person of another; (4) that results in bodily harm or offensive contact

Question 56

Assault

Answer 56

2 kinds! It is either (1) an attempt to commit a battery; OR (2) intentionally placing another in apprehension of imminent bodily harm

Question 57

False Imprisonment

Answer 57

(1) unlawful; (2) confinement of a person; (3) without valid consent.

Question 58

Kidnapping

Answer 58

Unlawful confinement of a person that involves either: (1) some movement of the victim; OR (2) hiding the victim

Question 59

Larceny

Answer 59

(taking) (carrying away)(the personal property of another) (by trespass) (with intent to permanently deprive)

Question 60

Embezzlement

Answer 60

(fraudulent conversion) (of the personal property of another) (by a person in a lawful possession of that property)

Question 61

False pretenses

Answer 61

(obtaining title) (to the personal property of another) (by an intentional false representation) (of a material past or present fact) (with intent to defraud)

Question 62

Larceny by trick

Answer 62

When the defendant obtains possession or custody (NOT title) of the victim's property by the misrepresentation. Otherwise, false pretenses and larceny by trick operate in the same manner

Question 63

Robbery

Answer 63

(taking and carrying away) (of the personal property of another) (from the other's person or presence) (by threat of force) (with the intent to permanently deprive)

Question 64

Receipt of stolen property

Answer 64

(receiving possession and control) (of stolen personal property) (known to have been obtained in an unlawful manner) (by another person) (with the intent to permanently deprive the owner of the property)

Question 65

common law burglary

Answer 65

(a breaking) (and entry) (of the dwelling of another) (at night) (with the intent to commit a felony therein)

Question 66

Arson

Answer 66

(malicious) (burning) (of the dwelling of another)

Question 67

Attempt

Answer 67

(1) the specific intent to perpetrate a crime; and (2) an overt act beyond mere preparation that falls short of completing the crime **most states require the "substantial step"

Question 68

Withdrawal from attempt

Answer 68

Under the common law, abandonment or withdrawal is NOT a defense to attempt. Under MPC, a fully voluntary and complete abandonment is a valid defense

Question 69

Solicitation

Answer 69

(1) requesting another to commit a crime (2) with the intent that they do it

Question 70

Solicitation withdrawal

Answer 70

In most jurisdictions, it is NOT a defense that the solicitor renounces or withdraws the solicitation. MPC recognizes renunciation as a defense if the defendant prevents the commission of the crime

Question 71

Conspiracy

Answer 71

(1) agreement between two or more persons (2) to accomplish a criminal objective (3) with the intent to enter into the agreement AND (4) with the intent to commit the criminal objective. Overt act now required mostly.

Question 72

Termination of conspiracy

Answer 72

Upon completion of the criminal objective

Question 73

Pinkerton liability!

Answer 73

A conspirator may be held liable for crimes committed by their conspirators if the crimes were (1) committed in furtherance of the criminal objective; AND (2) foreseeable.

Question 74

Withdrawal from conspiracy

Answer 74

Withdrawal may be a defense to crimes committed in furtherance of the conspiracy, but conspiracy is NOT a defense to the conspiracy itself UNLESS the conspirator: (1) performs an affirmative act that notifies all members of the conspiracy of her withdrawal; (2) gives notice in time for the members to abandon their plans; AND (3) attempts to neutralize her assistance if she provided any as an accomplice.

Question 75

Accomplice liability

Answer 75

liable for all crimes the principal committed AND all other crimes that were a probable or foreseeable result if the accomplice: (1) aids, abets, or facilitates the commission of a crime committed by the principal; (2) with the intent that the crime be committed.

Question 76

Withdrawal accomplice

Answer 76

Withdrawal is a valid defense to accomplice liability if the accomplice withdraws his involvement BEFORE the crime becomes unstoppable. Repudiation is sufficient withdrawal for mere encouragement. If the accomplice's involvement went beyond mere encouragement, then the accomplice must attempt to neutralize his assistance for the withdrawal to be sufficient

Question 77

Accessory after the fact

Answer 77

An accessory after the face is a person who aids another to escape knowing that he has committed a felony. He is only liable for the less serious offense of being an accessory after the fact

Question 78

M'Naghten Rule

Answer 78

Did not know nature and quality of act or difference between right and wrong

Question 79

Irresistible Impulse

Answer 79

lacked capacity to control impulses or to confirm his conduct to requirement of the law

Question 80

MPC

Answer 80

appreciate the wrongfulness of the unlawful act or conform his conduct to the requirements of the law

Question 81

Durham

Answer 81

but for mental illness

Question 82

self defense with nondeadly force

Answer 82

A person without fault may use nondeadly force in self defense if she (1) is confronted with unlawful force AND (2) reasonably believes it is necessary to protect herself from the imminent use of unlawful force upon herself

Question 83

self defense with deadly force

Answer 83

A person without fault may use deadly force in self defense if she (1) is confronted with unlawful force; AND (2) reasonably believes that she is threatened with imminent death or great bodily harm

Question 84

duty to retreat

Answer 84

In a minority of jurisdictions, a person must retreat before using deadly force if the victim can safely do so UNLESS: (1) attack occurs in the victim's own home; (2) attack occurs while the victim is making a lawful arrest; OR (3) assailant is in the process of robbing the victim

Question 85

Imperfect self-defense

Answer 85

McSweeney type ish you feel me. Can reduce a murder charge to voluntary manslaughter if the defendant kills another based on an honest but unreasonable belief that the use of deadly fore was necessary to prevent death or serious bodily harm.

Question 86

Defense of others

Answer 86

A defendant may defend others with force he reasonably believes that the person assisted has the legal right to use force in her own defense. Only some courts allow imperfect self-defense to be applied to situations where the defendant was defending another person

Question 87

duress defense

Answer 87

available if the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon him or a family member if he did not commit the crime

Question 88

mistake or ignorance of fact as defense

Answer 88

Mistake of fact is a defense that shows the defendant lacked the state of mind required for the crime. Specific intent crime: the mistake need NOT have been reasonable. Malice and general intent crimes: mistake MUST have been reasonable. Mistake of fact is irrelevant if the crime imposes strict liability

Question 89

Public School Searches

Answer 89

A warrant or probable cause is not required for public school officials to search public school students or their possessions; only reasonable grounds for the search are necessary. A school search will be held to be reasonable only if: (1) it offers a moderate chance of finding evidence of wrongdoing; (2) the measures adopted to carry out the search are reasonably related to the objectives of the search; and (3) the search is not excessively intrusive in light of the age and sex of the student and nature of the infraction

Question 90

Double jeopardy exceptions permitting retrial

Answer 90

(1) first trial ends in a hung jury; (2) when a manifest necessity arose that required the original trial to be aborted; (3) state may retry a defendant who has successfully appealed a conviction unless the ground for reversal was insufficient evidence to support a guilty verdict. In this case, retrial is permitted when reversal is based on the weight rather than the sufficiency of the evidence. However, on retrial, a defendant may not be tried for a greater offense than that for which they were convicted; (4) charges reinstated after breach of plea bargain; (5) if the defendant could have been tried for multiple charges in a single trial, but the defendant elects to have the offenses tried separately, jeopardy does not attach to the first trial for the other charges