Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Prep > Crim Law/Pro > Flashcards

Crim Law/Pro Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Specific intent

A

occurs when D intends the act and also intends the resulting harm

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Specific intent crimes

A

Burglary, robbery, assault, murder, attempt, conspiracy, theft crimes, solicitation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Malice

A

is established when D has a reckless disregard of a high risk of harm to human life

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

General Intent

A

occurs when D intends the act but not necessarily the resulting harm

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

General intent crimes

A

battery, rape, false imprisonment, kidnapping, involuntary manslaughter, and depraved heart

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Strict Liability Crimes

A

Statutory rape, selling liquor to minors, bigamy, statutes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Model Penal Code

A

Purposely: Consciously engaging in certain conduct will cause a certain result

Knowingly: Knowing that engaging in certain conduct will very likely cause a particular result

Recklessly: Consciously disregarding a substantial and unjustifiable risk of harm to others

Criminal negligence: failure to be aware of a substantial and unjustifiable risk

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Transferred Intent

A

exists if D intends a harmful result to a particular person, and, in trying to carry out that intent, causes a similar harmful result to another person, her intent will be transferred from the intended person to the one actually harmed.

**Does not apply to attempt crimes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Concurrence

A

AR must occur at the same time D has the requisite mens rea

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Causation

A

Ds acts must have been the actual (but for) and proximate (foreseeable) cause of the harm

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Battery

A

(1) an unlawful application of force
(2) to the person of another
(3) results in either bodily injury OR an offensive touching

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Assault

A

3 theories - attempted battery, assault, aggravated assault

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Assault

A

(1) D intentionally
(2) Places victim in reasonable apprehension
(3) of an imminent bodily harm
(4) with the victim’s person

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Aggravated assault

A

(1) elements of assault; plus
(2) used deadly weapon
(3) with the intent to maim, rape, or murder

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Rape

A

(1) Sexual intercourse
(2) by a man
(3) with a woman not his wife
(4) without her consent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

False Imprisonment

A

(1) the unlawful confinement
(2) of a person
(3) without his valid consent

*note: merges with kidnapping

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Kidnapping

A

(1) confinement
(2) of the victim
(3) by moving or concealing the victim

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Homicide intro

A

At common law, the term homicide is used to describe three different types of unlawful killings: murder, voluntary manslaughter, and involuntary manslaughter

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Common law murder

A

murder is the unlawful killing of a human being with malice aforethought. Malice aforethought exists when there is either: (1) an intent to kill, (2) an intent to inflict serious bodily harm, (3) reckless indifference to unjustifiably high risk to human life, (4) an intent to commit an inherently dangerous felony that results in a killing (felony murder).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

First-degree murder

A

occurs when D perpetrates a killing (1) with premeditation and deliberation or (2) a murder committed during the commission of an enumerated felony which are BARRK (burglary, arson, rape, robbery, kidnapping)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Premeditation and deliberation

A

A premeditated and deliberate killing occurs when D takes the time to reflect on the idea of killing and makes the decision to kill while in a cool, dispassionate state of mind; premeditation can occur in seconds

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Second-degree murder

A

is (1) all other killings that do not qualify as first-degree murder, usually common law murders and (2) murder during the commission of a non-enumerated felony.

*NOTE: Intent to inflict great bodily harm murder or depraved heart murder are, at most, second degree murder.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Felony Murder

A

Any death caused during the commission of, or in the attempt to commit, an inherently dangerous felony, is felony murder

To convict D of felony murder:

(1) D must be guilty of the underlying inherently dangerous felony
- Inherently dangerous felonies: BARRK
- Minority Rule: Includes non-dangerous felonies committed in a dangerous manner.
- TIP: analyze first whether D is guilty of underlying felony

(2) The felony must be distinct from the killing itself (independent felonious intent)

(3) The death must have been the foreseeable result of the felony, and

(4) The death must have occurred during the perpetration of the felony and not after D reached a place of safety.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Exceptions to liability for felony murder

A

(1) Redline Rule: Felons are not liable for the deaths of co-felons that occur during the commission of the crime if the death was caused by the victim or the police attempting to prevent escape of further criminal activity.

(2) Agency Theory: D is not liable for felony murder when an innocent party is killed unless the death is caused by D or co-felon.

(3) Proximate Cause Theory: D will be liable if an innocent party is killed by the victim or the police.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Voluntary Manslaughter

A

Is an intentional killing that is mitigated from murder because there is adequate provocation or heat of passion

Adequate Provocation:
(1) sudden and intense passion: There is a provocation that would arouse sudden and intense passion in the mind of a reasonable person.
(2) Provocation: D was in fact provoked

(3) Cooling off period: There was no cooling off period between the provocation and the killing (cooling off can occur in mere seconds), and

(4) No cooling off: D did not in fact cool off

At common law, adequate provocation could be established by showing the victim had committed a serious battery against D

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Involuntary manslaughter

A

is a killing committed with criminal negligence or during the commission of an unlawful act

Criminal negligence: is found when D’s conduct is a gross deviation from the standard of care of a reasonable person.

Misdemeanor-manslaughter: is a killing that occurs as a result of or during a misdemeanor or felony that is not sufficient for felony murder.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Larceny

A

(1) unlawful taking
(2) and carrying away
(3) of tangible personal property from possession of another
(4) with the intent to permanently deprive the victim of possession

*NOTE: Mens rea must exist at the time of actus reus
*Exception: Continuous trespass: if initial taking is wrongful and D later forms intent to steal, taking will continue in time until D later formed the intent to steal

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Larceny by Trick

A

(1) unlawful taking
(2) and carrying away
(3) of tangible personal property from possession of another
(4) with the intent to permanently deprive the victim of possession
(5) with the victim’s consent obtained by misrepresentation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Embezzlement

A

(1) the fraudulent
(2) conversion
(3) of another’s personal property
(4) by one in lawful possession of that property

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

False Pretenses

A

(1) obtaining title
(2) to personal property of another
(3) by the intentional false statement
(4) of a past or existing fact
(5) with the intent to defraud

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Receiving Stolen Property

A

(1) receiving possession and control
(2) of stolen personal property
(3) known to have been obtained in a manner constituting a criminal offense
(4) by another person
(5) with the intent to permanently deprive owner of his interest

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Robbery

A

*tip it’s larceny + force

(1) the unlawful taking
(2) and carrying away
(3) of tangible personal property from possession of another
(4) with the intent to permanently deprive the victim of possession
(5) by force or threat of force

*NOTE: threats of future bodily harm or later non-bodily harm are not sufficient for robeber

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Extortion

A

(1) obtaining property
(2) by means of threats to do harm or expose information

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Burglary

A

(1) the breaking and entering
**Modernly: just entering is sufficient

(2) At night
**Common law: entry had to occur at night
**Modernly: most states have eliminated nighttime requirement

(3) into the dwelling house of another
**Common law: the structure had to be the dwelling house of another
**Modernly: Most states protect all structures (residential, industrial, commercial, etc.)

(4) With the intent to commit a felony therein
**Note: the intent to commit a felony must exist at the time the entry occurs; a later-formed intent to steal (after entry) does not qualify

**TIP: must also analyze the felony committed therein (ie larceny, rape, kidnapping, battery, etc.)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

Arson

A

(1) the burning or charring
(2) of a dwelling house of another
**common law: the structure had to be the dwelling house of another
**modernly: most states protect all structures
(3) with malice (intent to burn or acted with extreme or wanton disregard)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

Forgery

A

(1) the making or altering
(2) of a writing with apparent legal significance
(3) so that it represents something that it is not
(4) with the intent to defraud

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

Uttering a forged instrument

A

(1) offering as genuine
(2) an instrument that may be the subject of forgery and is false
(3) with the intent to defraud

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

Accomplice liability

A

Principal
(1) one who, with the intent to commit the crime
(2) directly commits or causes the crime to occur through an agent
(3) the principal is liable for the crimes he committed, solicited, conspired to commit, and those that the accomplice assisted, counseled, or encouraged

Accomplice
(1) one who, with the intent to commit the crime
(2) aids, counsels or encourages the principal
(3) silent approval or mere presence is not sufficient
(4) also liable for other foreseeable crimes committed by the principal.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

Accessory before the fact

A

(1) one who provides assistance
(2) before the crime is committed
(3) but is not actually present during the crime
**Note: accessory before the fact will still be convicted of the main crime

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

Accessory after the fact

A

(1) one who provides assistance
(2) after the crime has been committed
(3) to help the principal escape or avoid arrest
**Majority rule: An accessory after the fact is not liable for crimes committed by the principal, but is liable for obstruction of justice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

Attempt

A

(1) one who commits a substantial step toward an act
(2) with an intent to commit a crime
(3) that falls short of completing the crime, is guilty of attempt

**Specific Intent: D must have the specific intent to commit the target crime
**Substantial Step: Mere preparation is not enough, D must come dangerously close to completing the intended crime

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

Solicitation

A

(1) D incites, counsels, advises or requests another
(2) To commit a crime
(3) With the intent that the crime be committed
*Note: Solicitation merges with conspiracy once agreement is made

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

Merger

A

Solicitation and Attempt merge into the actual crime, so D may be tried for both but not punished for both

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

Conspiracy

A

(1) an agreement between 2 or more persons
(2) with an intent to enter into the agreement with an unlawful objective
**Majority Rule: requires all conspirators actually agree to commit to unlawful objective
**Minority Rule: known as unilateral theory - requires only one guilty mind for a conspiracy if he believed the other party was actually agreeing to commit the unlawful purpose.
**Wharton’s Rule
(3) Where D commits an overt act in furtherance of the objective
**Pinkerton: D is liable for the target offense and other crimes committed by co-conspirators in furtherance of the conspiracy that were foreseeable
**Note: Target crime does not merge with conspiracy so D can be convicted of both

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

Self Defense

A

An individual who is without fault may use such force as reasonably appears necessary to protect herself from the imminent use of unlawful force upon herself

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

Deadly Force

A

May be used only if:
(1) D is without fault
(2) Threatened with imminent death or great bodily harm
**Majority: No duty to retreat before deadly force is used.
**Minority: D must retreat before using deadly force if he can safely retreat or there is a reasonable means of escape available
**Exception: D need not retreat if: (i) he is in his home, or (ii) he is making a lawful arrest

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

D is the initial aggressor:

A

D cannot assert self defense UNLESS:
(1) D-initial aggressor withdraws (clearly communicates his intent to stop fighting)
(2) D initially used non-deadly force and victim escalated with deadly force

*majority and minority retreat rules apply

48
Q

Imperfect self defense

A

If D acted unreasonably but in good faith, that he (or another) had a right to use deadly force in response to an attack.
**Note: D’s crime if a homicide will be mitigated from murder to voluntary manslaughter

49
Q

Defense of others

A

it must reasonably appear that the person being attacked would have had a right to use reasonable force to defend herself and D must use reasonable force

50
Q

Defense of property

A

non-deadly force may be used to defend property in one’s possession from unlawful interference, deadly force may never be used in defense of property
**Exception: Deadly force can be used to protect occupants of home from violent intruder or if intruder intends to commit a felony inside

51
Q

Insanity

A

Cluster all 4:
*M’Naghten Rule
*Irresistible Impulse Test
*MPC Substantial Capacity
*Durham

52
Q

M’Naghten

A

(1) D had a disease of the mind
(2) that caused a defect of reason
(3) Such that he lacked the ability at the time of his actions to either:
(I) know the wrongfulness of his actions, or
(II) understand the nature and quality of his acts

53
Q

Irresistible impulse test

A

D as a result of mental defect, was unable to control his conduct or conform his conduct to the law

54
Q

MPC Substantial Capacity test

A

(1) D lacked substantial capacity either to
(i) appreciate wrongfulness of his conduct, or (ii) to conform his conduct to the requirements of the law

55
Q

Durham

A

D is not guilty if his crime was the conduct of a mental disease or defect
*abolished but still discuss, just have to show causation

56
Q

Diminished capacity

A

some states recognize this defense if D had a mental defect short of insanity that prevented him from forming the mental state required for the crime to be charged
**Some states allow only for specific intent crimes

57
Q

Intoxication

A

If D is intoxicated (alcohol, illegal or legal drugs, etc.) at the time of the crime, the intoxication may excuse criminal liability if it negates an element of the crime

*Voluntary Intoxication: D voluntarily and knowingly consumes a substance known to be intoxicating (defense to specific intent crimes, not a defense to strict liability crimes)

*Involuntary Intoxication: D involuntarily or unknowingly ingests an intoxicating substance; D involuntarily takes the intoxicating substance if he is made to do so under duress; D unknowingly takes an intoxicating substance if he is not aware of its intoxicating nature
**defense to all crimes

58
Q

Entrapment

A

D will not have liability for a crime because:
(1) The criminal design originated by government official or police, and
(2) D was not predisposed to commit the crime before the government contacted D

59
Q

Legal Impossibility

A

Occurs when Ds acts or intention to act would not actually be a crime under any circumstances.
*Attempt: D will not be guilty of attempt even though he firmly believed his goal was criminal

60
Q

Factual impossibility

A

Occurs when Ds acts would constitute a crime if the facts were as D believed them to be
**Attempt: D can still be charged with attempt (ie attempt to receive stolen property)

61
Q

Mistake of fact

A

Occurs when D makes a reasonable mistake of fact or is ignorant of a fact that negates the required mental state of the crime
*specific intent crimes: any mistake will suffice
*general intent crimes: only a reasonably mistake will suffice, based on subjective standard
*strict liability crimes: never a defense

62
Q

Mistake of law

A

occurs when there is reasonable reliance on a statute or judicial decision or Ds mistake caused him to lack specific intent to commit the crime

63
Q

Infancy

A

Common law rules apply
*under age 7: no crim liability

64
Q

Necessity

A

D reasonably believes that his conduct was necessary to avoid some harm to society that would exceed the harm by the conduct

65
Q

Duress

A

D’s conduct is excused if the crime is committed under the threat of imminent death or great bodily harm to him or a member of his family; defense can be used for all crimes except homicide

66
Q

Use of force to effectuate arrest for police officer

A

A police officer may use deadly force to apprehend a fleeing felon only if threatens bodily harm or deadly force in his escape; reasonable mistake is allowed.

67
Q

Use of force to effectuate arrest for private person

A

a PP may use deadly person only if the person harmed was actually guilty of the offense; a private person may use non-deadly force to make an arrest if they have reasonable grounds to believe the person committed the crime; reasonable mistake is NOT allowed.

68
Q

Resisting arrest

A

non-deadly force may be used to resist an unlawful arrest by a uniformed police officer

69
Q

Consent

A

D is excused from liability when the victim consents to the force or harm inflicted.

70
Q

Withdrawal Accomplice:

A

if D withdraws from the crime before it becomes unstoppable and attempts to neutralize any assistance, he will not be liable

71
Q

Withdrawal conspiracy:

A

A D who withdraws from the conspiracy is liable only for the conspiracy but not the subsequent crimes of his co-conspirators if he: (1) notifies all co-conspirators before the crime occurs of his withdrawal, (2) give timely notice to members to abandon the plan, or (3) tries to neutralize any assistance given (ie calling the police)

72
Q

Abandonment

A

Generally, abandonment is never a defense, UNLESS: (1) it is fully voluntary (2) it is a complete abandonment

73
Q

Exclusionary rule

A

Under the exclusionary rule, any evidence in violation of D’s 4th, 5th, 6th am rights is inadmissible as evidence

74
Q

Fruit of poisonous tree doctrine

A

under doctrine, any evidence obtained from exploiting illegally obtained evidence is also inadmissible. The evidence is excluded unless it falls under an exception that breaks the causal chain between the illegal conduct and the discover of evidence.

75
Q

Exceptions to fruit of poisonous tree

A

(1) Independent Source - evidence is admissible if the prosecution can show that it was obtained from a source independent of the original illegality

(2) Inevitable Discovery - if the prosecution can show that the police would have discovered the evidence without violating D’s constitutional rights the evidence will be admissible

(3) Intervening act of free will - an intervening act of free will by D will break the causal chain between the evidence and original illegality.

76
Q

4th Amendment

A

prohibits unreasonable searches and seizures. The 4th Am applies to the states via the 14th Am. In order to bring suit for a 4th amendment violation, D must show:

77
Q

What must D show to bring 4th Am claim?

A

(1) there was gov action, (2) she has standing, (3) the gov action involved a search or seizure

78
Q

Warrant requirement

A

For a search or seizure to be valid under the 4th amendment, the police must have a valid warrant or have a valid exception to the warrant requirement

79
Q

What is a valid warrant?

A

requires a showing of: (1) a neutral and detached magistrate, (2) based on probable cause, and (3) describes with particularity the place to be searched and items to be seized

80
Q

Execution of warrant

A

Upon arrival and execution of warrant, the police must: (1) knock and announce, (2) announce their purpose, and (3) wait for a reasonable time to be admitted, unless police believe the announcement would be futile, dangerous, or D is destroying evidence.

81
Q

Exception to warrant requirement - search incident to lawful arrest

A

Incident to lawful arrest, police may search the suspect and any areas within her control, so long as the search is contemporaneous in time and place with the arrest. The search is limited to the area within D’s wingspan, in which D may reach to procure a weapon or destroy evidence. However, the police may do a protective sweep of the surrounding area if they have reason to believe accomplices may be present.
**search of cellphone incident to arrest is unconstitutional
** search of automobile incident to lawful arrest - police may search only if: (1) suspect is unsecured and may still gain access to interior of car, or (2) police reasonably believe that evidence of the offense for which the person was arrested may be found in the automobile

82
Q

When does an arrest occur

A

when police take a person into custody against her will for the purposes of criminal prosecution or interrogation. A valid arrest must have both probable cause and a warrant unless it’s a public arrrest.

83
Q

Probable cause

A

to arrest exists when, at time of arrest, the officers knows facts that lead a reasonable person to believe D committed the crime

84
Q

Warrant or public arrest

A

there is no warrant requirement for arrests that take place in public

85
Q

Automobile exception

A

The police may conduct a routine traffic stop if: (1) the officer has reasonable suspicion the occupants of the car have violated the law, or (2) officer has probable cause the car contains fruits or instrumentalities of a crime. The officer may only search the areas, including containers, for which they have probable cause. A traffic stop seizes the driver and passengers..

86
Q

Plain view seizure exception

A

the police may make a warrantless seizure when they: (1) are legitimately on the premises, (2) discover evidence, fruits, instrumentalities, of a crime or contraband (3) such evidence is in plain view, and (4) have probable cause to believe that the item is evidence of a crime

87
Q

Consent exception

A

the police may conduct a valid warrantless search if they have voluntary, knowing, and intelligent consent to do so. When two or more persons have an equal right to possession of property, either can consent, but if one refuses, there is no consent

88
Q

Terry Stop & Frisk

A

The police may stop a suspect without PC for arrest if they have articulable and reasonable suspicion of criminal activity. The officer may additionally frisk the suspect if she believes the suspect to be armed and dangerous. The frisk it limited to a pat down of suspect’s clothing, and the officer can seize anything that, based on plain feel, could be a weapon or contraband

89
Q

Exigent Circumstances

A

Police may: (1) in hot pursuit of fleeing felon make a warrantless search and seizure or even follow a felon into a private dwelling, and (2) make a warrantless seizure of any evidence likely to disappear before a warrant can be obtained.

90
Q

Checkpoint automobile search

A

Police may create a checkpoint to stop and search cars so long as: (1) who is being stopped and searched is random, (2) the checkpoint is for a legitimate gov purpose, (3) the search is related to violations involving automobiles

**NOTE: DUI checkpoints and contraband checkpoints (LEGAL)

91
Q

Booking search or inventory seizure

A

The police may search a suspect’s personal belongings in order to inventory them before incarcerating the suspect.

92
Q

Public school search

A

the police may conduct a warrantless search in purses and backpacks at public schools to investigate the violation of school rules. The school search is reasonable if: (1) it offers a moderate chance of finding evidence of wrongdoing, (2) method of search is reasonably related to the objective of the search, and (3) the search is not excessively intrusive

93
Q

Caretaker exception

A

The police may make a warrantless search or seizure if an officer faces an emergency that threatens the health or safety of an individual or the public

94
Q

5th Am

A

protects citizens against compulsory self-incrimination for compelled testimonial evidence. The 5th Am applies to the states via the 14th Am. To invoke the 5th, D must be subject to custodial interrogation by gov agents.

95
Q

Gov action

A

Miranda generally applies only to interrogation by the publicly paid police. It does not apply when interrogation is by an informant who D does not know is working for police.

96
Q

Custody

A

A person is in custody when she has a reasonable belief she is not free to leave

97
Q

Interrogation

A

Any words or actions by police that the police should know are reasonably likely to elicit an incriminating response from D

98
Q

Miranda warnings

A

Once D is subject to custodial interrogation, an incriminating statement is only admissible after D has been advised of miranda warnings.

Miranda:

(1) D has right to remain silent, (2) anything she says can be used against D in a court of law, (3) she has a right to an attorney, and (4) an attorney will be appointed to D if she cannot afford one

99
Q

Right to remain silent

A

IF accused asserts her 5th am right to remain silent, all questioning related to that crime must immediately stop. The police must scrupulously honor invocation

100
Q

Right to counsel

A

If accused asserts her 5th Am right to counsel, all questioning must cease regarding all crimes.

*Questioning may continue once an attorney is present or suspect initiates further contact

*Assertion of the 5th am right to counsel must be clear and unambiguous

*A break in custody of 14 days ends the right to counsel protection and the police may reinitiate questioning

101
Q

WAIVER

A

To be valid, the gov must look at the totality of circumstances to determine whether a waiver of miranda rights was made voluntarily, knowingly, and intelligently. Silence is not presumed to be a waiver.

**Public safety exception: a waiver is not needed when police have reasonable concern for public’s safety and require the suspect’s cooperation in answering questions (ie gun has not been found and is lying somewhere in public area)

102
Q

Secret agent in cell

A

No 5th AM right but 6th attaches if secret agent planted during critical stages of prosecution

103
Q

Double jeopardy

A

under 5th, the accused cannot be tried for the same crime twice or for lesser-included crimes. Double jeopardy attaches to bench trials when the first witness is sworn in. If a crime has at least one additional element that must be proven, then double jeopardy does not apply

104
Q

6th Am

A

creates right to assistance of counsel at all critical stages after formal proceedings have begun. The 6th Am applies to the states via the 14th Am.

105
Q

Right to counsel

A

right applies once judicial proceedings have begun, usually when D is charged, and at all critical stages of prosecution.

*Photo lineup is not critical stage however, a post-indictment live lineup is a critical stage

106
Q

Ineffective assitance of counsel

A

effective AOc is presumed unless D can prove:

(1) specific deficient performance by counsel, and (2) but for deficiency in performance, a different result would have occurred

107
Q

Waiver of counsel

A

a 6th am waiver to D’s right to counsel must be voluntary, knowing, and intelligent. D must be competent to proceed pro se.

*REMEDY: failure to provide a lawyer during trial results in automatic reversal of conviction. However, harmless error rule applies for non-trial proceedings

108
Q

Impeachment

A

any statements obtained in violation of Ds sixth am right to counsel, while not admissible in prosecution’s case-in-chief, may be used to impeach D’s contrary testimony,

109
Q

6th Am continued

A

people have right to a fair trial, which includes right to confront witnesses, right to a speedy trial, and right to instructions if entering a guilty plea. Applies to states via the 14th am

110
Q

Right to jury trial

A

A D’s right to jury trial attaches when D is tried for an offense whose max sentence is over six months. The jury must consist of at least 6 jurors and up to 12 jurors. D has right to proportional representation of community in the jury pool but no tin her particular jury.

*6th AM requires unanimous jury verdicts to convict criminal defendants, regardless of number of jurors and that right is incorporated via the states

111
Q

Preemptory challenges

A

*Capital cases: each side has 20 preemptory challenges when gov seeks death penalty

  • other felony cases: gov has 6 and D has 10 when D is charged with a crime punishable by imprisonment of more than a year

*misdemeanor case: each side has 3 preemptory challenges when D is charged with a crime punishable by fine, imprisonment of one year or less, or both

112
Q

Right to confront witnesses:

A

if co-d confesses and implicates other co-d, 6th Am right of confrontation prohibits the use of the confession at trial, unless:
(1) portions referring to the other co-d are redacted, (2) the confessing co-d takes the stand and submits to cross-examination, or (3) confession of co-d is used to rebut the other co-d’s claims that her confession was involuntarily obtained.

113
Q

Right to confront witness - statement by witness

A

D has 6th Am right to confront witnesses against him to observe the witness’ demeanor and to have an opportunity to cross-examine the witness. D can lose this right if she is: (1) disruptive, (2) absent, (3) grand jury proceeding, or (4) public exception applies which says no violation so long as (a) an important public purpose is served, and (b) the reliability of witness is ensured.

A witness statement is excluded if: (1) declarant did not testify, (2) declarant is not available, (3) D did not have an opportunity to cross-examine, (4) statement is testimonial

114
Q

guilty pleas may be withdrawn if:

A

(1) plea was involuntary, (2) lack of jdx, (3) ineffective assistance of counsel, (4) prosecution failed to keep agreed upon plea bargain

115
Q

8th Am

A

prohibits cruel and unusual punishment. Ds punishment must be proportional to her offense. The 8th Am applies to the states via the 14th

116
Q

14th Am Due process

A

identifications that are unnecessarily suggestive and where there is substantial likelihood of misidentification violated DP

117
Q
A

Bar Prep (8 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions