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Rocking the Bar Exam > Crim Law & Pro > Flashcards

Crim Law & Pro Flashcards

1
Q

jurisdiction of federal government

A

power to criminal and prosecute crimes that

  • occur anywhere in the US
  • occur on ships and planes
  • committed by US nationals abroad
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2
Q

jurisdiction of states

A

can only punish crimes with some connection to the state

  • crime that occurs in whole or in part inside the state
  • conduct outside the state that involves an attempt to commit a crime inside the state
  • conspiracy to commit a crime if an overt act occurred w/in the state
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3
Q

actus reus

what are the requirements for actus reus

A
  • no thought crimes
  1. must be some physical act in the world (including speech)
  2. act must be voluntary (willed by the defendant, not involuntary act, need to have the motor control to do it, not necessarily want to do it)
  3. failure to act can be sufficient (ex. failure to comply with statutory duty, special relationship b/t D and victim, voluntarily assuming a duty of care that is cast aside, D causes a danger and fails to mitigate harm to the victim)
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4
Q

mens rea / common law

categories of intent

A
  1. specific intent
  2. malice
  3. general intent
  4. strict liability
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5
Q

mens rea / common law

specific intent

A

D committed the actus reus for the very purpose of causing the result that the law criminalizes

applies to FIAT crimes

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6
Q

specific intent crimes under common law (list)

common law

A

FIAT

  1. First-degree murder
  2. Inchoate crimes - Conspiracy, Attempt, Solicitation (CATS)
  3. Assault with attempt to commit battery
  4. Theft offenses - larceny, embezzlement, burglary, robbery, forgery
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7
Q

mens rea / common law

malice

common law

A

D acts in reckless disregard of a high degree of harm, D realizes the risk and acts anyway

Arson and Murder

“I AM certain there are two malice crimes”

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8
Q

mens rea / common law

general intent

common law

A
  • catch-all
  • requires an intent to perform an act that is unlawful
  • do NOT need to know that the act is unlawful
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9
Q

mens rea / MPC

general intent crimes

MPC

A

knowingly, recklessly, or negligently

ex. battery, kidnapping, rape, false imprisonment

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10
Q

mens rea / MPC

specific intent crimes

MPC

A

purposely

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11
Q

mens rea / common law

strict liability

common law

A
  • no state of mind requirement
  • D must merely have committed the act
  • statutory / regulatory offenses + moral offenses

moral offenses like statutory rape - doesn’t matter if you thought the victim was 18+

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12
Q

tip

“with the intent to”

what type of mens rea category is this?

A

specific intent

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13
Q

tip

“knowingly or recklessly”

what type of mens rea category is this

A

general intent

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14
Q

tip

what type of mens rea category is it if there’s no mens rea language

A

maybe strict liability

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15
Q

MPC

A

Model Penal Code

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16
Q

mens rea / MPC

hierarchy of mental states

MPC

A
  1. purpose (highest level of culpability)
  2. knowledge
  3. recklessness
  4. negligence

+ strict liability

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17
Q

mens rea / MPC

if no mens rea language, what is the default the prosecutor must prove?

MPC

A

recklessness

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18
Q

mens rea / MPC

purposely

MPC

A

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

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19
Q

mens rea / MPC

knowingly (or willfully)

MPC

A

D is aware that
1. their conduct is of the nature required to commit the crime
AND
2. the result is practically certain to occur from this conduct

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20
Q

mens rea / MPC

recklessly

MPC

A

D acts with a conscious disregard of a substantial and unjustifiable risk that
constitutes a gross deviation from the standard of conduct of a law-abiding person

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21
Q

mens rea / MPC

negligently

MPC

A

D should be aware of a substantial and unjustifiable risk
and acts in a way that grossly deviates from the standard of care of a reasonable person in the same situation

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22
Q

mens rea

transferred intent doctrine

A
  • only applies to competed crimes, not attempted
  • when D has the requisite mens rea for committing a crime against Victim A, but actually commits the crime against Victim B
  • law transfers the intent from A to B
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23
Q

vicarious liability

A
  • holds a person or entity (like a corporation) liable for an actus reus committed by someone else
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24
Q

merger

general info about merger doctrine

A
  • D can be convicted of 1+ crime arising out of the same act
  • D cannot be convicted of 2 crimes when those crimes merge into one
  • two categories - lesser-included offenses + merger of an inchoate and a completed offense
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25
Q

merger

lesser-included offenses

A

an offense in which each of its elements appears in another offense, but the other offense has something additional

can’t be convicted of both, but can be tried for both

like if offense 1 requires circle and square and offense 2 requires circle, square, triangle –> offense 1 is lesser-included offense, D can be convicted of #2 but not #1 b/c #1 merges into #2

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26
Q

merger / lesser-included offenses

if there are two separate victims, can you merge?

A

nope, crimes against each victim do not merge

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27
Q

merger / inchoate crimes

attempt

A

D who actually completes a crime CANNOT also be convicted of attempting that crime

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28
Q

merger / inchoate crimes

solicitation

A

merges into the completed offense

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29
Q

merger / inchoate crimes

do conspiracy and a completed substantive offense merge?

A

nope! D can be convicted of both conspiracy to commit a crime + crime itself

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30
Q

rule for children to be convicted of crimes (common law)

common law

A
  • under age 7: NEVER capable of committing a crime
  • 7 - 14: rebuttably presumed to be incapable
  • 14+: can be charged as adults
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31
Q

principals, accomplices, aiders, abettors

principals

A

D whose acts or omissions form the actus reus of the crime
can be more than one principal to a particular crime

“who committed the actus reus that gives rise to the offense?”

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32
Q

principals, accomplices, aiders, abettors

accomplices

A
  • theory for holding people other than the principal responsible for the crime committed by the principal
  • same degree of responsibility as the principal
  • assist principal before or during the commission of a crime
  • must act with the intent of assisting the principal to commit the crime
  • EXCEPTION: person protected by statute can’t be an accomplice in violating the statute (ex. victim of statutory rape)
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33
Q

principals, accomplices, aiders, abettors

are bystanders accomplices?

A

no, even approving bystanders

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34
Q

principals, accomplices, aiders, abettors

what is an accomplice liable for?

A

both the planned crime + any other foreseeable crimes that occur in the course of the criminal act

crimes that are the natural and probable consequnece of their conduct

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35
Q

principals, accomplices, aiders, abettors

can an accomplice be criminally liable if the principal can’t be convicted?

A

yes, accomplice can be criminally liable EVEN IF they can’t be principal or if the principal can’t be convicted

NOTE: this is the modern view. Under common law, accomplice can only be convicted if principal was convicted (PQs Set 3, Crim Law)

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36
Q

principals, accomplices, aiders, abettors

accessories after the fact

A

people who assist the D AFTER the crime has been committed

ex. obstruction of justice, harboring a fugitive

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37
Q

principals, accomplices, aiders, abettors

aiders and abettors

A

idv who aid or abet a D to commit a crime may also be guilty of the separate crime of conspiracy IF
there was an agreement to commit the crime + overt act was taken in furtherance of that agreement

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38
Q

principals, accomplices, aiders, abettors

mental state of accomplices - majority / MPC approach

MPC

A

accomplice (1) must act with the purpose of promoting or facilitating the commission of the offense
AND
(2) must intend that their acts will assist or encourage the criminal conduct

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39
Q

principals, accomplices, aiders, abettors

mental state of accomplices - minority approach

A

accomplice is liable IF they intentionally or knowingly aids or causes another person to commit an offense

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40
Q

principals, accomplices, aiders, abettors

mental state of accomplices - criminal facilitation (under majority rule)

A

person who is NOT guilty of the substantive crime (b/c lacks intent) may still be guilty of the lesser offense of criminal facilitation for simply assisting

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41
Q

negating mens rea

categories for negating mens rea

A
  1. mistake
  2. insanity
  3. intoxication
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42
Q

negating mens rea / mistake

what is mistake (generally)?

A

D will claim that some mistake (about facts or law) negates their mens rea SO they cannot be convicted of a crime for which there are mens rea + actus reus elements

mistakes of law + mistakes of fact

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43
Q

negating mens rea / mistake

mistake of law

A
  • mistakes about what the law forbids and permits
  • ignorance of the law is NOT an excuse
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44
Q

negating mens rea / mistake

mistakes of law - what are the potential exceptions?

A
  1. reliance on high-level govt interpretation
  2. lack of notice
  3. mistake of law that goes to an element of a specific-intent crime (only for FIAT crimes)

relying on your lawyer’s advice is NOT within these exceptions

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45
Q

tip

mistakes of fact - how to tackle

A

first determine whether the crime is a specific intent crime (FIAT), general intent crime, or strict liability crime

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46
Q

negating mens rea / mistake

mistake of fact - rule for strict liability crimes

A

mistake of fact is NEVER a defense to SL crimes
must be a voluntary act
D’s state of mind is irrelevant

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47
Q

negating mens rea / mistake

mistake of fact - rule for general intent crimes

A

defense ONLY IF mistake is reasonable + goes to criminal intent

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48
Q

negating mens rea / mistake

mistake of fact - rule for specific intent crimes (FIAT)

A

are a defense whether the mistake is reasonable or unreasonable
question is whether the D held the mistaken belief

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49
Q

negating mens rea / insanity

list of tests for insanity

A
  1. M’Naghten test
  2. Irresistible impulse test
  3. Durham rule
  4. MPC
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50
Q

negating mens rea / insanity

M’Naghten test

A

D either did not know the nature of the act OR did not know the act was wrong B/C OF mental disease or defect

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51
Q

negating mens rea / insanity

irresistible impulse test

A

D has a mental disease or defect that prevents D from controlling themself

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52
Q

negating mens rea / insanity

Durham rule

A

D would not have committed the crime BUT FOR having a mental disease or defect

D friendly so rarely used

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53
Q

negating mens rea / insanity

MPC

A

due to a mental disease or defect, D did not have substantial capacity to appreciate the wrongfulness of their actions OR to confirm their conduct to the law

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54
Q

negating mens rea / insanity

majority rule for burdens

A
  • D has the burden of proving insanity either by a preponderance of the evidence OR clear and convincing evidence.
  • some juris require D to intro evidence of insanity THEN burden of persuasion shifts to prosecution to prove sanity beyond a reasonable doubt
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55
Q

negating mens rea / intoxication

what substances are covered?

A

alcohol, drugs, and medications

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56
Q

negating mens rea / intoxication

involuntary intoxication - elements

A

occurs when a person

  1. doesn’t realize they received an intoxicating substance
  2. is coerced into ingesting a substance OR
  3. has an unexcited or unanticipated reaction to prescription medication
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57
Q

negating mens rea / intoxication

involuntary intoxication - what type of crimes can involuntary intoxication be a defense for?

A
  • general intent
  • specific intent
  • malice crimes when it negates the mens rea necessary for the crime
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58
Q

negating mens rea / intoxication

voluntary intoxication - elements

A

person intentionally ingests the substance, knowing that it is an intoxicant

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59
Q

inchoate crimes / conspiracy

common law elements of conspiracy

common law

A
  1. agreement
  2. b/t 2+ people
  3. to commit an unlawful act
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60
Q

inchoate crimes / conspiracy

elements of conspiracy under federal law, MPC, majority states

MPC

A
  1. agreement
  2. b/t 2+ people
  3. to commit an unlawful act
  4. performance of an overt act in furtherance of the conspiracy

MPC doesn’t require overt act if conspiratorial crime is felony 1st or 2nd

#4 is difference from common law

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61
Q

inchoate crimes / conspiracy

MPC conspiracy

MPC

A

ONLY D must actually agree to commit the unlawful act (so undercover agents can be the other people)

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62
Q

inchoate crimes / conspiracy

what is needed for the agreement?

A
  • explicit or implicit
  • simply knowing a crime is going to occur and doing nothing does NOT turn bystander into co-conspirator (lacks agreement)
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63
Q

inchoate crimes / conspiracy

what is needed for the purpose of the conspiracy?

A
  • must be an unlawful act
  • if conspirators agree to do something that is not a crime, then it’s not conspiracy
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64
Q

inchoate crimes / conspiracy

what is required for the overt act?

A

can be lawful or unlawful as long as it furthers the conspiracy

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65
Q

inchoate crimes / conspiracy

what is the scope of conspiracy under common law?

common law

A

each co-conspirator can be convicted of both
(1) conspiracy AND (2) all substantive crimes committed by any other conspirator acting in furtherance of the conspiracy

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66
Q

inchoate crimes / conspiracy

what are the two theories for the relationship of co-conspirators?

A
  1. chain conspiracy
    co-conspirators are engaged in an enterprise consisting of many steps, each participant is liable for substantive crimes of their co-conspirators
    ex. everyone on the supply chain of a drug ring is liable
  2. spoke-hub conspiracy
    involves many people dealing with a central hub, participants are NOT liable for substantive crimes of co-conspirators
    each spoke is treated as separate agreement rather than one large general agreement
    ex. pawn shop operating as a fence, each robber is not responsible for goods of the other robbers
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67
Q

inchoate crimes / conspiracy

how do you withdraw from a conspiracy in common law?

common law

A

impossible to withdraw b/c crime is complete the moment the agreement is made

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68
Q

inchoate crimes / conspiracy

how do you withdraw from a conspiracy under federal law and MPC?

MPC

A

conspirator can withdraw prior to the commission of any overt act by communicating her intention to withdraw to all other conspirators OR by informing law enforcement

after an overt act, conspirator can withdraw only by helping to thwart the success of a conspiracy

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69
Q

inchoate crimes / conspiracy

how can a D limit their liability for substantive crimes if they can’t withdraw from a conspiracy (federal law + MPC)?

MPC

A

informing other conspirators of the withdrawal OR
timely advising legal authorities

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70
Q

inchoate crimes / attempt

what is required for attempt (elements)?

A
  1. specific intent to commit a particular criminal act
    AND
  2. substantial step towards perpetrating the crime

specific intent crime even when completed offense is only a general intent crime

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71
Q

inchoate crimes / attempt

what defenses can be used for attempt?

A

defenses for specific intent crimes apply
certain defenses (voluntary intoxication, unreasonable mistake of fact) are available EVEN IF they wouldn’t be available had the crime been completed

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72
Q

inchoate crimes / attempt

can attempt be merged?

A
  • attempt merges into a completed offense
  • CANNOT be convicted of both attempted murder + murder of the same person in the same episode
  • CAN be convicted of conspiracy to commit murder + murder
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73
Q

inchoate crimes / solicitation

what is required for solicitation?

A

occurs when an individual intentionally invites, requests, or commands another person to commit a crime

the ask is the crime

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74
Q

inchoate crimes / solicitation

what happens if the person agrees to the solicitation?

A

it’s conspiracy instead

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75
Q

inchoate crimes / solicitation

what happens if the person commits the offense?

A

solicitation merges into the completed offense

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76
Q

homicide

general definition of homicide

A

killings of a living human being by another human being

animals don’t count
victim can’t be dead already
suicide is not, but assisting someone can be

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77
Q

homicide

what causation is needed for homicide?

A

must be a causal relationship b/t D’s actions and what happened to victim

actual causation - victim wouldn’t have died but for what D did
AND
proximate causation - D’s act is a foreseeable cause of victim’s death / death is the natural and probable result of the conduct

independent actions by 3p are not a foreseeable cause

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78
Q

homicide

is consent a defense to homicide?

A

nope

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79
Q

tip

what is the default type of homicide on MBE if question doesn’t specify?

A

common law murder

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80
Q

homicide

what are the types of homicide?

A
  1. first degree murder
  2. common law murder
  3. manslaughter
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81
Q

homicide / first degree murder

what is required for first degree murder?

A
  • specific intent crime
  • deliberate and premeditated murder OR
  • a killing that results during the commission of an inherently dangerous felony

felony murder is frequently classified as M1

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82
Q

homicide / common law murder

definition of common law murder

A

unlawful killing of another human being committed with malice aforethought
lawful killing of another is not murder (ex. state execution)

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83
Q

homicide / common law murder

what are the types of malice?

A
  1. intent to kill - D acted with desire that the victim end up dead, intent need not be premeditated
  2. intent to inflict serious bodily harm - D intended to hurt the victim badly and victim died
  3. abandoned or malignant heart or depraved heart - D acted with cavalier disregard for human life and death resulted
    D must realize their conduct is really risky, but doesn’t need intent regarding outcome of actions
    majority + MPC: D must actually realize there is danger
    minority: reasonable person would have recognized the danger
  4. felony - death occurred during the commission or attempted commission of a dangerous felony (BARRK felonies)
    dangerous felony must be independent of killing itself
    can involve someone who resists the felony
    includes when bystander is killed during a felony
    can include 3p killed by resistor or police (majority uses agency theory - D is only responsible for crimes of D’s agents)
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84
Q

homicide / common law murder

with felony murder: what happens if a co-felon is killed by a resistor or a police officer?

A

majority: D is not guilty of felony murder
minority: D might be guilty of felony murder

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85
Q

tip

what are the dangerous felonies?

A

BARRK

  • burglary
  • arson
  • robbery
  • rape
  • kidnapping
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86
Q

homicide / common law murder

what if there is a death caused by another felony (not a BARRK felony) - is that common law murder?

A

nope, misdemeanor manslaughter

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87
Q

homicide / manslaughter

definition of manslaughter

A

all unlawful killings of another human being that are not M1 or common law murder (catch-all)
voluntary + involuntary manslaughter

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88
Q

homicide / manslaughter

voluntary manslaughter

A
  • occurs when a D intends to kill the victim, but mens rea is less blameworthy than murder
  • acted in heat of passion or under extreme emotional disturbance
  • test: is this situation one in which most people would act w/o thinking and w/o time to cool off?

ex. walking in to your spouse in bed with someone else (not hearing about it)

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89
Q

homicide / manslaughter

involuntary manslaughter

A
  • criminally negligent killing OR killing someone while committing someone other than those covered by felony murder (BARRK)
  • D who engages in a criminally negligent conduct and causes a death
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90
Q

property crimes

list the property crimes

A
  1. larceny
  2. robbery
  3. burglary
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91
Q

property crimes / larceny

list elements of larceny

common law

A
  1. taking any movement of property
  2. another person’s property tangible personal property only
  3. without their consent (trespassory) AND
    consent must be real (not by a trick)
    D has burden of proving there was consent
  4. with the intent to deprive them of it permanently
    borrowing is not larceny

specific intent crime (part of theft)

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92
Q

property crimes / larceny

is it larceny if the property was destroyed in your care?

A

no if you intended to give it back

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93
Q

property crimes / larceny (variation)

embezzlement

common law

A

D starts out with victim’s consent to have the property BUT commits embezzlement by converting the property to their own use

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94
Q

property crimes / larceny (variation)

false pretenses

common law

A

D obtains title to someone else’s property through an act of deception

mens rea: with the specific intent to defraud (intent to steal)

PQs Set 3, Crim Law

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95
Q

property crimes / larceny

MPC requirements for larceny, embezzlement, and false pretenses

MPC

A

treated as single statutory crime of theft that includes tangible and intangible property

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96
Q

property crimes / robbery

elements of robbery

common law

A

robbery = larceny + assault

  1. taking
  2. another person’s property
  3. without their consent
  4. with intent to deprive them of it permanently
  5. taking occurs from victim’s person or in their presence
  6. either by violence or putting victim in fear of imminent physical harm
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97
Q

property crimes / robbery (variation)

extortion

common law

A

involves threats of fixture harm (including non-physical harm)

majority: threat alone is sufficient
minority: threat + actually obtaining the property

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98
Q

property crimes / burglary

common law burglary requirements

common law

A
  1. breaking and
  2. entering
  3. the dwelling (structure regulars lived in)
  4. of another (can’t burgle yourself)
  5. at night
  6. with specific intent to commit a felony once inside (usually larceny)
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99
Q

property crimes / burglary

modern law burglary requirements

A
  1. breaking and
  2. entering
  3. the property (can include commercial buildings)
  4. of another
  5. at any time
  6. with specific intent to commit a felony once inside
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100
Q

property crimes / burglary

what is needed for the elements of breaking and entering?

A

breaking can involve pushing open or smashing a door or window, or obtaining entry by fraud or threat
entering involves breaking the plane of the dwelling

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101
Q

battery

elements of battery

A
  1. unlawful (consent is a complete defense)
  2. application of force
  3. to another person
  4. that causes bodily harm OR an offensive touching

general intent crime
doesn’t require actual physical contact b/t D and victim

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102
Q

assault

what are the types of assault?

A
  1. attempted battery
  2. fear of harm
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103
Q

assault

attempted battery

A
  • if D has taken a substantial step toward completing a battery but fails
  • specific attempt crime b/c attempt
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104
Q

assault

fear of harm

A
  • intentionally placing another in reasonable apprehension of imminent harmful or offensive contact
  • general intent crime

PQs Set 2 Crim Law

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105
Q

rape

elements of common law rape

A
  1. unlawful
  2. sexual intercourse
  3. with a female
  4. against her will by force or threat of force
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106
Q

rape

elements of modern rape statutes (generally)

A
  1. unlawful
  2. sexual intercourse
  3. with anyone (gender neutral)
  4. without their consent (no force requirement)
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107
Q

rape

is rape a general intent or specific intent crime? what defenses are available?

A
  • general intent
  • voluntary intoxication CANNOT be a defense
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108
Q

rape

statutory rape

A
  • strict liability offense
  • ignorance or mistake about victim’s age is not a defense
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109
Q

kidnapping

A
  1. unlawful
  2. confinement of another person
  3. against that person’s will
  4. either by moving or hiding the victim
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110
Q

arson

arson - basic elements

common law

A
  1. malicious
    intent to act in a way that will cause burning or is substantially likely to do so
  2. burning
  3. of another person’s
  4. dwelling
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111
Q

arson

what is required for “burning” under common law + modern statutes?

A

common law - had to be a burning (fire) not just explosion or smoke damage
required to damage structure of building not just contents

modern - arson even if no damage to structure or fire caused by explosion

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112
Q

arson

what is required for “another person” under common law + modern statutes?

A

common law - can’t torch your own home

modern - it’s still arson if it’s your home (insurance fraud concerns)

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113
Q

arson

what is required for “dwelling” under common law + modern statutes?

A

common law - had to be a dwelling, not another structure

modern - commercial buildings count

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114
Q

perjury

A

willful act of falsely promising to tell the truth (verbally or in writing) about material matters

  1. person must know what they are saying is false
  2. person must intend to say something that is false AND
  3. falsity must go to a material matter
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115
Q

subornation of perjury

A

person persuades someone else to commit perjury

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116
Q

bribery

common law

A

corrupt payment of something of value for purposes of influencing an official in the discharge of their official duties

117
Q

bribery

modern

A

allows a bribery charge even if person being bribed is not a public official
offering a bribe + receiving one are both felonies
can be convicted of bribery even if person could not “be bribed”

118
Q

defenses

list the defenses

A
  1. intoxication
  2. insanity
  3. mistake of fact
  4. self defense
  5. defense of others
  6. defense of property
  7. duress
  8. necessity
119
Q

defenses

intoxication - what type of crimes can use this as a defense?

A
  • specific intent crimes - voluntary or involuntary intoxication available as a defense IF D could not maintain the state of mind necessary for the offense
  • general intent crimes - only voluntary intoxication

not valid defense if D got drunk to commit the crime

120
Q

defenses

insanity (basic definition)

A

D is unable to confirm their conduct to the law b/c of a mental defect or disease

121
Q

defenses

mistakes of fact - what type of crimes can use this as a defense?

A
  • general intent crimes - ONLY reasonable mistakes of fact
  • specific intent crimes - ALL mistakes of fact
122
Q

defenses

self-defense - what types of force can you use?

A
  • deadly force - intended or likely to cause death or serious injury
    only if reasonably believes that deadly force will be used against him OR (MPC) reasonably believes that the crime will result in serious bodily injury
    doctrine of retreat
  • non-deadly force
    allows if reasonably fears imminent unlawful harm
123
Q

defenses

for self-defense, what are the rules for the doctrine of retreat? (when is retreat required)

A
  • majority: retreat is not required even if entitled to use deadly force
  • minority: must retreat rather than using deadly force if safe to do so
  • retreat is NEVER required when employing deadly force in your own home
124
Q

defenses

defense to others

A

idv has same right to defend others against criminal that they have to defend themself

125
Q

defenses

defense to property

A

right to use ONLY non-deadly force to protect property

booby traps or spring guns to protect your property –> not appropriate use of force

126
Q

defenses

duress

A

D claims they
1. committed a crime only b/c they were threatened by 3p AND
2. reasonably believed that hte only way to avoid death or injury to himself or others was to commit the crime

must be a threat of death or serious bodily harm (not just mere injury)

defense for all crimes except intentional murder

127
Q

defenses

necessity

A

available in response to natural forces (choice was lesser of two evils)

128
Q

basic principles

who do constitutional protections apply to (like whose actions)?

A

govt only

EXCEPT
private persons acting as govt agents
defense counsel (public + private) for purposes of 6th Amendment for effective assistance of counsel

129
Q

arrests + seizures

what can a police officer do if the encounter is NOT to the level of a seizure?

A

can approach anyone in a public place
no real contract on what they can/can’t do or what they can discover

130
Q

arrests + seizures

what is a seizure

A
  • occurs when an officer, by means of physical force or show or authority, intentionally terminates or restrains a person’s freedom of movement
  • whether a reasonable person would feel free to disregard the officer
131
Q

arrests + seizures

types of seizures (list)

A
  • stop and frisk / Terry stop
  • traffic stops
  • arrests
  • warrants
  • warrantless arrests
  • searches incident to arrest
132
Q

arrests + seizures

stop and frisk / Terry stop - definition

A
  • officer stops an individual when officer has reasonable suspicion based on articulable facts to believe suspect is or about to be engaged in criminal behavior
  • officer’s reasonable mistake of law can give rise to reasonable suspicion
133
Q

hierarchy of burdens (in general)

A
  • beyond a reasonable doubt –> conviction
  • probable cause (more likely than not) –> arrest
  • reasonable suspicion –> stop
134
Q

arrests + seizures

stop and frisk / Terry stop - can officer pat down detainee for weapons and evidence?

A

only weapons, not evidence
if pat down reveals objects whose shape makes their identity obvious, officer can seize

135
Q

arrests + seizures

stop and frisk / Terry stop - can officer make an arrest?

A

if probable cause develops during a Terry stop, officer can make an arrest

136
Q

arrests + seizures

stop and frisk / Terry stop - what are the consequences of a stop that is NOT based on adequate suspicion?

A
  • if initial stop is unlawful but officer develops basis for a lawful arrest during stop –> evidence seized can be used at trial
  • if initial stop is unlawful + no basis for making a lawful arrest –> evidence cannot be used
137
Q

arrests + seizures

arrests

A
  • must be probable cause to believe that the idv has committed a crime
  • can be w/ or w/o arrest warrant
138
Q

arrests + seizures

traffic stops

A
  • officers must have reasonable suspicion to stop a car
  • once lawful stop, officers may pat down an occupant for weapons IF they have reasonable suspicion that person has a weapon
  • do not need reasonable suspicion at a checkpoint (stop everyone)
139
Q

arrests + seizures

pretext arrest

A

as long as police have probable cause to believe an individual committed a crime, it’s irrelevant whether officer stopped that person for the crime for which there is probable cause or another crime

allowed under 4th but probs an Equal Protection issue

140
Q

if three co-conspirators, can only one be guilty of conspiracy at the same trial?

PQs Set 2, Crim Law

A

no, need consistency in verdicts returned by single jury
conspirator cannot be convicted if ALL other co-conspirators are acquitted at the same trial

141
Q

can conspirator be criminally liable for any foreseeable crimes by co-conspirator?

PQs Set 2, Crim Law

A

Yes, Pinkerton Rule

conspirator is criminally liable for any foreseeable crimes committed by a co-conspirator acting in furtherance of the conspiracy

142
Q

arrests + seizures

arrest warrants

A

authorizes an officer to arrest a particular person

  1. must be issued by a neutral and detached magistrate
  2. must be based on finding of probable case to believe that they committed a particular crime AND
  3. name the person and ID the offense
143
Q

arrests + seizures

warrants - what happens once a warrant is issued?

A
  • allows officers to enter an idv’s home to arrest them
  • does NOT allow them to enter 3p’s home or business
  • need to have a search warrant to search the premises for the idv
144
Q

arrests + seizures

without an arrest warrant, when can an officer arrest someone inside a dwelling?

A

only if

  • there are exigent circumstances OR
  • there is consent to enter
145
Q

arrests + seizures

warrantless arrests - when can these occur?

A

can arrest idv w/o warrant in public place for crime committed in officer’s presence OR based on probable cause to believe idv committed a felony (only a felony)

146
Q

arrests + seizures

does an illegal arrest prevent prosecution for the crime?

A

no, but might result in exclusion of evidence discovered during the event

illegal arrest = no probable cause

147
Q

arrests + seizures

during a lawful arrest, what type of search can officer do?

A

can make a contemporaneous search of person + immediately surrounding area to
* protect officers from weapons or other danger
* prevent destruction or concealment of evidence

148
Q

arrests + seizures

what happens to evidence discovered and seized during search incident to lawful arrest?

A

can be used against person arrested

149
Q

arrests + seizures

in a search incident to arrest that occurs on the street, where can officer search?

A

suspect + their wingspan (immediate surrounding area)

150
Q

arrests + seizures

in a search incident to arrest that occurs at home, where can officer search?

A

suspect + immediate arrest area

can also do a protective sweep for people

151
Q

arrests + seizures

in a search incident to arrest that occurs in a car, where can officer search?

A

passenger compartment of vehicle as long as suspect still has access to vehicle at the time
can’t start searching the car once suspect is in the back of the squad car b/c no longer a threat to officers and no longer risk of destruction of evidence
(but can search car if it is reasonable that evidence of the offense of arrest might be found in the vehicle)

152
Q

arrests + seizures

rule for searching cellphones during an arrest

A

may seize the phone but can’t search for digital info
need a search warrant to search a phone

153
Q

searches

elements of a search

A

when (1) govt conduct violates a (2) reasonable expectation of privacy

154
Q

searches

what is needed for “govt conduct”?

A
  • physical intrusion upon private property
  • can occur without a physical intrusion
  • using some types of technology (ex. thermal imaging device) can constitute a search
155
Q

searches

where do we have / not have “reasonable expectation of privacy”?

A

do have:

  • houses
  • hotel rooms
  • offices
  • luggage
  • curtilage (yard)
  • cars but limited

don’t have:

  • public streets
  • open fields (even private property)
  • garbage cans on the street
  • abandoned property
  • prison cells
156
Q

tip

what to focus on with searches

A
  • who is claiming the search
  • who holds the reasonable expectation of privacy

gov’t actions are valid UNLESS D has a reasonable expectation of privacy
only govt actions

157
Q

searches

requirements for search warrant

A
  1. must be issued by neutral magistrate
  2. must be based on probable cause to believe that the items sought are fruits, instrumentalities, or evidence of crime
  3. must describe the property and place to be searched with particularity

ex. bank robbery –> loot is fruit of the crime, gun is instrumentality, bloody shirt robber wore is evidence

158
Q

searches

when is a search warrant required?

A

generally govt needs search warrant to conduct a search if there is a reasonable expectation of privacy

159
Q

searches

if warrant doesn’t meet requirements, what happens?

A
  • warrant is invalid
  • items seized pursuant to the warrant are excluded from prosecution’s case in chief
160
Q

searches

what is required for wiretapping?

A
  • constitutes a search
  • must have probable cause + warrant
  • need to specifically ID whose convos are to be intercepted, include an end date, perform minimization
161
Q

searches / warrant exceptions

list major exceptions to warrant requirement

A

ESCAPES from the warrant requirement

Exigent circumstances
Search incident to arrest
Consent
Automobiles
Plain view
Evidence obtained from administrative searches
Stop and frisk

162
Q

searches / warrant exceptions

exigent circumstances

A
  • if officers are in hot pursuit or there is an immediate danger, may conduct a search w/o a warrant
  • officers are entitled to secure premises while they obtain a warrant, but sometimes not sufficient
  • does not apply if police created the exigency
  • need warrant for DUI blood draw absent exigent circumstances
163
Q

searches / warrant exceptions

search incident to lawful arrest

A

if arrest is lawful, search warrant is unnecessary to search the person being arrested and wingspan (immediate surrounding area) for weapons or evidence

164
Q

searches / warrant exceptions

consent

A

don’t need warrant if D consents to a search
officer can engage in outright deception

3p consent - officer cannot search over objection of present occupant, but can search if other occupant consents when suspect is not present

165
Q

searches / warrant exceptions

automobiles

A

if police have probable cause to believe car contains contraband, can search those parts of the vehicle that might contain contraband even without an arrest

ex. can’t search the money holder for a machine gun (obvi too small to hold the gun)

166
Q

searches / warrant exceptions

plain view

A

if police are legally present, can seize any item in plain view or plain smell, even if that item wasn’t named in the warrant

167
Q

searches / warrant exceptions

evidence obtained from administrative search

A

don’t need search warrant for administrative searches

  1. administrative warrants (ex. health inspection of building)
  2. warrantless administrative searches (ex. airplane boarding areas, international borders, stu in public schools)
168
Q

searches / warrant exceptions

stop and frisk

A

Terry stops merely require reasonable suspicion
may conduct limited frisk for weapons

169
Q

interrogations / 5th Amend

5th Amendment

A

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

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself , nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use, without just compensation.”

170
Q

interrogations / 5th Amend

scope of privilege

A
  • applies to natural persons (not corporations or unions)
  • applies to testimonial evidence, not physical evidence
  • applies to testimony that would be a link in chain leading to prosecution or conviction
  • if given immunity, can’t continue to refuse to answer
171
Q

interrogations / 5th Amend

statements by an idv

A
  • must be made by idv to the govt
  • statements made as result of custodial interrogation are inadmissible UNLESS accompanied by procedural safeguards (Miranda warnings)
172
Q

interrogations / 5th Amend

what is a custodial interrogation?

A

custodial
person being questioned has been arrested or is otherwise not free to leave
if not in custody, no warning is required

interrogation
official asking questions or engaging or words or conduct that police know/should know will elicit a response
does not include volunteered statements or routine booking questions

173
Q

interrogations / 5th Amend

Miranda warnings - timing + requirements

A

before conducting custodial interrogations

  1. you have right to remain silent
  2. any statement you make may be used against you in court
  3. you have right to consult an atty and have atty present during questioning
  4. right to have atty appointed if you can’t afford one
  5. must ask whether D understands the rights

no magic words

174
Q

interrogations / 5th Amend

when must police cease questioning?

A
  1. invoking right to remain silent
    must be affirmatively invoked (have to say you don’t want to talk, can’t just be silent)
    can resume interrogation after substantial period of time and give Miranda warnings again
  2. invoking right to counsel
    must be affirmatively invoked
    all must questioning must stop until lawyer is present OR D affirmatively initiates contact with police
    police can’t question D again
    police don’t have to tell D that lawyer is trying to reach them
    “I think I should talk to somebody” isn’t enough
175
Q

interrogations / 5th Amend

Public Safety Exception

A

when public safety is at risk, police don’t have to give Miranda warnings

176
Q

interrogations / 5th Amend

interrogation tactics - what’s allowed?

A
  • confessions must be voluntary
  • statements obtained by threats are inadmissible (even after Miranda)
  • confessions can be product of deceit
177
Q

interrogations / 5th Amend

consequences of 5th violations - statements obtained involuntarily

A

NEVER admissible against D
whether to overturn conviction - harmless error standard

evidence obtained as result of involuntary statement is fruit of poisonous tree is presumptively inadmissible

178
Q

interrogations / 5th Amend

consequences of 5th violations - statements in violation of Miranda

A

inadmissible in prosecution’s case in chief, BUT may be admissible to impeach witness to challenge credibility
evidence obtained as result of voluntary statement taken in violation of Miranda is admissible

179
Q

6th Amend

right to counsel

A

explicitly provides criminal defendant with “assistance of counsel for his defense”

180
Q

5th Miranda vs. 6th Right to Counsel

how do you invoke each?

A

5th: must be affirmatively invoked by D

6th: auto attaches once there has been an indictment, info, or other formal charges
exists unless D knowingly and intelligently waives

181
Q

5th Miranda vs. 6th Right to Counsel

what charges does each apply to?

A

5th: applies to custodial interrogation for ANY charge, but not to non-custodial interrogation

6th: ONLY applies to offense for which D has actually been charged (including any lesser-included offenses)
doesn’t apply to unrelated charges - D can be questioned still
applies whether you’re in custody or not

182
Q

6th Amend / right to counsel

what type of prosecutions does it apply to?

A

applies to all felony prosecutions + any misdemeanor prosecutors for which jail time or suspended jail sentence is imposed

183
Q

6th Amend / right to counsel

what stages of prosecution does it apply/not apply to?

A

applies to all critical stages of the prosecution

critical stages
* evidentiary hearings
* post-indictment lineups
* post-indictment interrogations
* all parts of trial process

non-critical stages
* investigative lineups (pre-indictment)
* witnesses looking at photo arrays
* discretionary appeals and post-conviction proceedings

184
Q

6th Amend / identification procedures

what are the kinds of identification procedures (how victims and witnesses ID the person)?

A
  • photo arrays
  • pre-indictment lineups
  • post-indictment
185
Q

6th Amend / identification procedures

in which identification procedures does D have right to counsel?

A
  • photo arrays - neither D nor atty have right to be present, but police must turn over array to D
  • pre-indictment lineups - D has no right to counsel
  • post-indictment lineups - D has right to counsel present
    if right is violated, evidence that witness ID’d D at lineup must be excluded
186
Q

6th Amend / identification procedures

is lineup evidence at trial admissible?

A

If D moves to suppress evidence that a witness picked the D out of lineup, court will consider whether the lineup was impermissibly suggestive
if so, court can exclude the testimony

187
Q

6th Amend / identification procedures

is an in-court identification admissible?

A

prosecution must establish by clear and convincing evidence that witness would have ID’d the D even without the suggestive lineup

like pointing to the D at trial “that’s the guy”

188
Q

tip

how to address questions about identification

A
  1. was the identification before or after the indictment?
  2. was the lineup or photo array impermissibly suggestive
189
Q

exclusionary rule

what is the exclusionary rule (in general)?

A

illegally obtained evidence (physical evidence obtained by illegal search OR statement from illegal interrogation) is inadmissible at criminal trial of person whose rights were violated to prove their guilt
applies at trial, not pretrial proceedings (like grand jury)
evidence obtained in violation of 4th, 5th, or 6th

applies to states through 14th

190
Q

exclusionary rule

what standing is needed?

A

violation must have been the D’s rights, NOT someone else’s

BUT
if driver of car is arrested w/o probable cause, passengers are deemed to have been seized as well + can challenge constitutionality of the stop

191
Q

exclusionary rule

does exclusionary rule apply to evidence obtained as result of initial violation?

A

yep, Fruit of the Poisonous Tree

192
Q

exclusionary rule / exceptions

list exceptions to exclusionary rule

A
  • knock and announce
  • inevitable discovery
  • independent source
  • attenuation in causal chain
  • good faith
  • negligence (half exception)
193
Q

exclusionary rule / exceptions

knock and announce

A

officers executing an arrest warrant at a residence are required to knock and announce they are police

if they fail to do so + discover evidence, that evidence does NOT have to be suppressed (if they were entitled to enter)

194
Q

exclusionary rule / exceptions

inevitable discovery

A

if evidence would have been discovered anyway through lawful means, it will be admissible

195
Q

exclusionary rule / exceptions

independent source

A

evidence discovered on basis of an independent source will be admissible

196
Q

exclusionary rule / exceptions

attenuation in the causal chain

A

intervening events + passage of time can remove the taint of the unconstitutional conduct

197
Q

exclusionary rule / exceptions

good faith

most important exception to Exclusionary Rule

A

applies to officers who violate an individual’s rights BUT have good faith reason to believe their conduct is constitutional –> allowed to use that evidence
officers who rely on an existing law that’s later unconstitutional OR warrant that is facially valid and is later found defective

can rely on a warrant UNLESS
* warrant is obtained by fraud
* warrant was facially defective
* magistrate wholly abandoned judicial role

198
Q

exclusionary rule / exceptions

negligence (kinda an exception)

A

isolated negligence by law enforcement personnel does NOT necessarily trigger this rule
police conduct must be sufficiently deliberate so that exclusion could meaningfully deter it

199
Q

tip

suppression is only an issue AFTER you conclude there has been an underlying constitutional violation

A
  1. was there an underlying cons violation?
    * 4th - was there a search? Seziure? If yes, was there probable cause?
    * 5th - was D in cusotdy? Was there an interrogation? Was the D given warnings? did he invoke his rights?
    * 6th - did right to counsel under 6th attach? Was this a critical stage?
  2. if there was a violation, does exclusionary rule apply?
  3. was there an exclsuion to the exclusionary rule that makes the evidence admissible anyway?
  4. if question is about overturning a conviction (so not about whether evidence should be suppressed), apply harmless error rule: if this evidence had not been admitted, would it make a difference to the outcome?
200
Q

pretrial procedures

initiation of charges - 5th Presentment Clause

A

all federal felony charges MUST be intiiated by indictment by grand jury unless D waives indictment
indictment requires probable cause to believe D committed the crimes charged

201
Q

pretrial procedures

initiation of charges - 5th Presentment Clause –> does this apply to states?

A

nope, has not been incorporated to states
SO states can choose whether to proceed by grand jury indictment or by info
if by info, there must be a preliminary hearing before a neutral judge to determine whether there is probable cause

202
Q

pretrial procedures / proceedings before grand jury

what type of evidence can grand jury consider?

A

can consider evidence that has been obtained illegally AND hearsay evidence in deciding whether there is probable cause

203
Q

pretrial procedures / proceedings before grand jury

what are the rules for the proceedings? Are they public? Can D testify? Does the vote have to be unanimous?

A
  • D do NOT have right to testify or call witnesses
  • witnesses don’t have right to counsel (but can leave the room to consult w/ their lawyers)
  • held in secret
  • does not have to be unanimous (majority vote)
204
Q

pretrial procedures

what is the test for competence to stand trial?

A

whether D comprehends the nature of the proceedings against him + can assist his lawyer in defending the case

if competent to stand trial, also competent to plead guilty + waive right to trial

205
Q

pretrial procedures

what happens if D pleads guilty?

A

waives various trial rights (right to put prosecution to its proof, confront and produce witnesses, trial by jury, challenge intro of evidence, appeal if conviction)

206
Q

pretrial procedures

what’s needed for guilty plea to be valid?

A

D must knowingly and intelligently waive these rights through plea allouction where judge asks questions

  • informs D of his rights and ensures that D understands
  • informs D of possible sentences
  • informs D of immigration consquences (but judge isn’t required to inform of other collateral consequences)
  • determines that plea didn’t come from force, coercion, threats, or promises
  • makes sure there is a factual basis for the plea
207
Q

pretrial procedures

can D later challenge his plea agreement (guilty plea)? What happens if they successfully reopen the case?

A

yes, if succeeds in reopening the case, proseuciton can bring charges again + reinstate any charges that were dropped
D is entitled to competent assitance from counsel in plea bargaining process

208
Q

pretrial procedures / bail

general rule for bail + limitations

A

bail is available unless D poses flight risk OR danger to the community
presumption in favor of bail
8th forbids setting of excessive bail
cts can impose pretrial release conditions on D (house arrest, avoiding certain people, reporting, etc.)

209
Q

trial process / jury

6th right to jury trial

A

D has right to jury trial for all serious offenses for which authorized punsihment is more than 6 mo

210
Q

when does 6th right to counsel attach for misdemeanors?

A

only if a sentnece of incarceration is actually imposed

211
Q

trial process / jury

jury size for federal + state courts
how many jurors need to vote in favor?

A
  • federal criminal case - 12 jurors
  • states - can use 6+ jurors
  • must be unanimous to convict
212
Q

trial process / jury

jury selection stages

A

venire (jury pool) –> petit jury (the jury that actually decides)

213
Q

trial process / jury

what is required for the jury pool / venire?

A

must represent a fair cross-section of the community from which no distinctive group is excluded

214
Q

trial process / jury

what are the ways to remove a potential juror during voir dire (selecting the petit jury)?

A
  1. for cause
    something that prevents them from being impartial and deliberating fairly
    no limit
  2. peremptory challenges
    can be made for any reason, incl hunches
    BUT can’t remove based on race or sex (Batson doctrine)
    statutory limit for each side
215
Q

trial process / jury

what is required for the actual jury?

A

needs to be impartial BUT doesn’t have to reflect a fair cross-section of the community

216
Q

trial process / speedy and public trial

when does statute of limitations begin?

A

begins to run when crime occurs
for contuining offenses, beings when the offense ends
statute of limitations give D repose

217
Q

trial process / speedy and public trial

what cons provisions protect against delay?

A
  • DP Clause protects against pre-accusation delay
  • Speedy Trial Clause of 6th protects D against delays that occur b/t time of arrest/indictment and time of tiral
218
Q

trial process / speedy and public trial

factors court looks at for Speedy Trial Clause under 6th claim

A
  1. length of delay
  2. reason for delay
  3. whether D asserted their right to a speedy trial AND
  4. risk of prejudice to D
219
Q

trial process / speedy and public trial

right to public trial

A

6th protects rights of D + 1st to have a public trial
cts have some discretion to close particular proceedings if there is a substnatial likelihood of prejudice to the D

220
Q

6th / Confrontation Clause

what does the Confrontation Clause guarantee D?

A
  1. right to confront witnesses against them (Crawford Doctrine)
  2. right to compulsory process to produce their own witnesses (Bruton Doctrine)
221
Q

6th / Confrontation Clause

Crawford Doctrine

A

if statement is testimonial, 6th bars admission IF
declarant is unavailable AND
D had no prior oppy to cross-examine the witness

if non-testimonal statement, look at rules of evidence

222
Q

6th / Confrontation Clause

Bruton Doctrine

A

D’s own statements are always admissible against him even if the D doesn’t testify at trial
if co-D, a non-testifing co-D’s statemetns are NOT admissible against the other D

223
Q

testimonial statement

A

made under circumstances which would lead a reasonable person to believe that the statemnet would be used at a later trial

224
Q

6th / Confrontation Clause

D’s right to present witnesses

A

D has right to testify on his own behalf
has right to compulsory process to obtain witnesses in his defense

225
Q

burden of proof

A

prosecution must prove every element beyond a reasonable doubt
govt can place the burden of proof for affirmative defenses on the D
affirmative defenses - insanity, self-defense, entrapment, mistake

226
Q

responsibilites of judges

A

DP Clause requires judges possess neither actual nor apparent bias

actual bias - interests that would impair judge’s impartiality

227
Q

prosecutors

duties of prosecutors

A
  1. Brady Doctrine
    must turn over all material exculpatory evidence
    including evidence that tends to show that D is not guilty of crimes charged
    evidence that would enable defnese to impeach credibility of prosecution witnesses
    evidence within control of govt (like police)
    if D pleads guilty after negotiations, prosecution is not required to turn over Brady info
  2. may not knowingly present false testimony
  3. may not contact a D oustide presence of his counsel (can’t violate 6th right to counsel)
  4. may not comment on D’s failure to testify at trial or make unfiar remarks about D to jury
    but can comment on D’s silence before Miranda attached
228
Q

prosecutors

prosecutorial misconduct

A

if it has a reasonable possibility of affecting the verdict - may require a mistrial or reversal of a conviction
subject to harmless error rule

229
Q

defense counsel

what type of counsel is required under 6th?

A

effective assistance of counsel at all critical stages of prosecution

230
Q

defense counsel

conflicts of interest - situations that may create COI

A
  • joint representation
  • prior representation of a witness
231
Q

defense counsel

what happens if there is an actual conflict?

A

judge must warn D that joint representation is a risk + give them oppy to get separate counsel
need a waiver if they don’t get separate counsel

if COI actually affects counsel’s behavior, there is a presumption of prejudice and D is not requried to show actual innocence in order to obtain a new trial

232
Q

defense counsel

effecitve assistance test

A

Strickland test - assesses whether D was denied effective assistance
1. performance - did defense counsel’s performance fall below wide range of reasonable conduct that lawyers might engage in?
2. prejudice - reasonable probability that the result would have been different if counsel performed effectively
cases that go to trial - D must show there was a reasonable probabilty that he would not have been convicted if lawyer had done a proper job
guilty pleas - D must show that he would not have pleaded guilty if lawyer had not given him bad advice or performed ineffictively

233
Q

defense counsel

what happens if it’s found that D was denied effective assistance of counsel?

A

conviction must be reversed b/c D has already shown he was prejudiced

234
Q

what is requried if D wants to be pro se?

A

if they are entitled to waive the right to counsel + represent themselves as long as they do it knowingly and voluntarily

235
Q

sentencing

list primary constitional provisions that regulate sentencing

A
  1. Cruel and Unusual Punishment of 8th
  2. Double Jeopardy of 5th
  3. Apprendi cases under 6th
236
Q

sentencing / Cruel + Unusual (8th)

rule for length of prison sentences

A

govt has free rein to authorize virtually any length sentence for virtually any crime

237
Q

sentencing / Cruel + Unusual (8th)

life sentences

A

death penalty only in cases where victim dies
can’t be imposed on D under 18 when crime was committed
can’t be imposed on D with cognitve impairment
can’t be imposed on D who are insane at time of execution

states need a bifurcated trial process, oppy to present mitigating evidence, process that sufficinetly narrows the class of death sentence eligible offenses

238
Q

sentencing / Cruel + Unusual (8th)

when does 8th Amend apply?

A

you must have been convicted of a crime

239
Q

sentencing / Double Jeopardy (5th)

what protections are under Double Jeopardy clause?

A
  1. protection against prosecution for same offense after acquittal
  2. protection against prosecution for same offense after conviction
  3. protection against multiple prosectuions or punishments for same offense
240
Q

sentencing / Double Jeopardy (5th)

what is the “same offense”?

A
  • Blockburger test: ask whether each statutory provision requires proof of an element that the other doesn’t
  • like if offense 1 requires A + B and offense 2 requires A + B + C –> can’t be convicted of both
  • offenses with diff victims are separate offenses for double jeopardy
241
Q

sentencing / Double Jeopardy (5th)

for “same offense” - what is the rule for different jurisdictions / sovereigns?

A

if two diff sovereigns have juris over the crime committed, both can try D separately
ex. state + fed govt OR two different states

242
Q

sentencing / Double Jeopardy (5th)

charged vs. punished distinction

A

D can be charged and tried for an offense + lesser-included offense at same trial
BUT can only be punished for one offense

243
Q

sentencing / Double Jeopardy (5th)

when does jeopardy attach?

A

when jury is sworn in OR first witness is sworn in (for bench trial)

244
Q

sentencing / Double Jeopardy (5th)

what happens if D is acquitted?

A

if D is acquitted, end of the case + can’t be retired by same jurisdiction for same offense, prosecution can’t appeal

245
Q

sentencing / Double Jeopardy (5th)

what happens if D is convicted?

A

if D convicted + doesn’t appeal or conviction is affirmed –> end of jeopardy, can’t be retired by same juris for same offense
if appeals and gets conviction reversed, can’t be retried UNLESS reversal was based on a finding of insufficient evidence

246
Q

sentencing / Double Jeopardy (5th)

types of mistrials

A
  • manifest necessity - D can be retried (ex. jury is deadlocked, defense counsel engaged in misconduct)
  • no manifest necessity - D cannot be retried by that juris
247
Q

sentencing / Apprendi Doctrine (6th)

what is the Apprendi Doctrine under 6th?

A

6th right to jury trial prohibits judges from enhancing sentences beyond statutory maximums based on facts other than those decided by jury beyond a resonable doubt
BUT this doesn’t apply to sentence enhancement based on prior criminal convictions (don’t need to be found by a jury)

ALSO judge is allowed to determine whether offenses are consecutive or concurrent (MBE Practice Exam #4)

248
Q

probable cause for a search warrant - what is required for an informant who provides the info for the warrant?

PQs Set 1, Crim Pro

A

if info is from a reliable, known informant –> okay for probable cause
if from an unknown informant –> police must independently verify the info

249
Q

does 5th amend privilege against self-incrimination apply to civil liability?

PQs Set 1, Crim Pro

A

nope, only criminal

250
Q

does 5th amend privilege against self-incrimination apply to corporations?

PQs Set 1, Crim Pro

A

nope, custodian of corporate records or other corporate officer can NOT refuse to produce corp docs under this privilege
even if the docs would incriminate them personally

251
Q

function of a grand jury

PQs Set 1, Crim Pro

A

merely to determine whether enough evidence exists to bring a criminal charge (not determine guilt or innocence)

252
Q

can physical evidence obtained from a non-Miranda statement admissible?

PQs Set 1, Crim Pro

A

yes as long as the statement was not coerced

253
Q

can an incriminating statement during a custodial interrogation w/o Miranda be admitted?

PQs Set 1, Crim Pro

A

nope, cannot be used against suspect at a subsequent trial

254
Q

is it a violation of double jeopardy (5th) to use a D’s prior convictions to enhance a sentence?

like a three-strikes law

PQs Set 1, Crim Pro

A

doesn’t violate double jeopardy

if it imposes a stiffer punishment for a new crime (deter repeat offenders) instead of imposing an additional punishment for the first two crimes

255
Q

Are Miranda warnings require when a suspect doesn’t know that the interrogator is a police officer (they’re undercover)?

PQs Set 2, Crim Pro

A

nope, Miranda not required.

256
Q

tip

what homicides are possible from an intentional killing vs. unintentional killing?

PQs Set 3, Crim Law

A
  • intentional killing –> first degree murder, common law murder based on intent to kill or cause bodily harm, voluntary manslaughter
  • unintentional killing –> second degree murder based on felony murder or depraved heart, involuntary manslaughter
257
Q

mens rea requirement for common law bigamy

PQs Set 3, Crim Law

A

strict liability crime so proof of the actus reus is sufficient to support a conviction

poor Sister Wives

258
Q

is an incriminating statement taken after an unlawful arrest admissible?

PQs Set 3, Crim Pro

A

only if court determines the connection b/t arrest + statement is so attenuated that the statement is considered voluntary

259
Q

for an anticipatory search warrant, how do you meet the probable cause requirement?

PQs Set 3, Crim Pro

A
  1. at time of issuance, there is probable cause to believe the triggering condition will occur AND
  2. if condition does occur, there is fair probability that contraband or evidence of crime will be found at place to be searched

anticipatory search warrant = warrant that becomes effect only upon occurrence of a triggering condition

ex. once warehouse receives a shipment of stolen goods

260
Q

does asking for a handwriting exemplar violate 4th, 5th, 6th rights?

PQs Set 3, Crim Pro

A
  • 4th - no b/c no reasonable expectation of privacy of one’s handwriting
  • 5th - no protection against self-incrimination for physical evidence (blood, urine, handwriting)
  • 6th - not a critical stage of prosecution so right to counsel doesn’t apply
261
Q

can a conviction be reversed if defendant can’t choose their attorney (non-indigent criminal defendant)?

PQs Set 3, Crim Pro

A

6th protects non-indigent criminal defendants’ right to choose attorney

erroneous denial of choice of counsel = structural error + requires automatic reversed of conviction

262
Q

Wharton Rule for conspiracy

PQs Set 4, Crim Law

A

if a crime requires two or more participants, there is no conspiracy UNLESS more parties than are necessary to complete the crime agree to commit the crime

ex. of incest - both parties agreed, so both have to commit incest for them to be charged with conspiracy to commit incest

263
Q

test to determine whether an area is part of the curtilage

if curtilage, then protected as part of reasonable expectation of privacy

PQs Set 4, Crim Pro

A

four-factor test applies
1. the proximity of the area to the home
2. whether the area is included within an enclosure surrounding the home
3. the nature of the uses to which the area is put AND
4. the steps taken by the resident to protect the area from observation by passersby

264
Q

what happens once 6th right to counsel attaches if there’s a police informant?

PQs Set 4, Crim Pro

A
  • statements that a defendant makes to a police informant are inadmissible WHEN the police intentionally create a situation likely to induce the defendant into making incriminating statements without the assistance of counsel
  • Sixth Amendment offense-specific standard, requirement for counsel to be present applies only to interrogations about the offense charged
  • Fifth Amendment protections are implicated ONLY in the context of a custodial interrogation, and NOT in the case of questioning by an undercover police officer, AS LONG AS the suspect does not know that the interrogator is a police officer
265
Q

elements of receiving stolen property

Essay 4986, Crim Law

A
  1. D must receive control of the stolen property
  2. D must know the property is stolen
    AND
  3. D must intend to permanently deprive the owner of the property
  • property unlawfully obtained through larceny, embezzlement, or false pretense
  • some jurisdiction require defendant to have actual, subjective knowledge that property had been stolen
  • others allow inference from facts that reasonable person would know
266
Q

For Miranda warnings, how do you determine if an inmate who is removed from the general population is in “custody” for purposes of Miranda?

Essay 5316, Crim Pro

A

totality of the circumstances applies
standard, objective analysis (whether reasonable person would feel free to leave)

  • consideration of language used in summoning the prisoner to the interview
  • manner in which interrogation is conducted

14 days for Miranda warnings to be valid, then need to do again

267
Q

does opening an unlocked door count as “breaking” under burglary?

UWorld

268
Q

does the exclusionary rule apply to grand jury proceedings?

UWorld

A

no

grand jury only has power to charge, not convict

269
Q

can statements taken in violation of Miranda be used at trial?

UWorld

A

yes to impeach the criminal defendant for inconsistent testimony
BUT NOT for deciding ultimate issue of guilt or innocence

270
Q

larceny by trick vs. false pretenses

MBE Practice Exam #2

A
  • false pretenses - person obtained title to the property
  • larceny by trick - obtained mere possession of property and converted it
271
Q

larceny by false pretenses

Essay 280

A
  1. obtaining title to the property
  2. of another person
  3. through the reliance of that person
  4. on a known false representation of a material past or present fact AND
  5. the representation is made with the intent to defraud
272
Q

at what point do you measure the amount of the embezzlement?

UWorld

A

value of the property at the time of conversion

273
Q

dangerous proximity test for attempt

UWorld

A

act occurs when D is so close to completing the target crime that it is essentially unstoppable

274
Q

what does immunity protect a defendant from?

MBE Practice Exam #3

A
  • does NOT protect from use in a civil suit
  • Derivative-use immunity protects a witness from the use of the witness’s own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution
275
Q

imperfect self-defense

MBE Practice Exam #3

A
  • D uses deadly force as self-defense
  • belief was unreasonable but honest
  • can reduce charge from murder to voluntary manslaughter
276
Q

adding sale sticker to something not on sale then buying it at the store

what crime is this?

MBE Practice Exam #3

A

false pretenses

false representation to get title (you have a receipt)

277
Q

how to determine if a confession was voluntary

Crim Pro MEE 282

A
  • voluntary confessions are not protected by Miranda
  • involuntary ONLY IF police coerced D into making it
  • based on totality of circumstances - conduct of police, characteristics of D, time of the statement
278
Q

how can an accomplice legally withdraw from a crime (so they’re not liable for the substantive crime)?

MBE Mixed Set

A

MUST
1. repudiate prior aid
2. do all that is possible to countermand prior assistance AND
3. do so before the chain of events is in motion and unstoppable

mere change of heart isn’t enough

279
Q

are duress and necessity a defense to murder?

UWorld

280
Q

if police have an arrest warrant, when can they use forcible entry at person’s home?

NCBE Simulated #2

A

ONLY if thought they were home at the time

“Under 4th, the arrest warrant would have authorized forcible entry only if the officers had reason to believe that the woman was at home at the time of the entry.”

this house was boarded up and looked abandoned

281
Q

witness cannot be compelled to provide potentially incriminating info unless they’re given what type of immunity?

NCBE Simulated #2

A

use and derivative-use immunity (grant the woman immunity from any future use against her of her grand jury testimony or any evidence derived from it)

not if transactional immunity (grant the woman immunity from any future prosecution for any crime she might disclose in the course of her testimony)

pulled from the question

282
Q

how to show ineffective assistance of counsel

UWorld Assessment #2

A
  1. deficient performance - atty’s representation fell below an objective professional standard of reasonableness
  2. prejudice - reasonable probability that outcome would have been different but for the deficiency
283
Q

if officer asks parolee to answer questions, does this count as custody for Miranda?

UWorld Assessment #2

A
  • parolee has general obligation to appear and answer questions truthfully when summoned by parole officer
  • parolee is NOT in custody in that situation UNLESS arrested or restrained
284
Q

do all known charges against a defendant have to be brought in the same prosecution?

UWorld Assessment #2

A

nope, not a requirement under Double Jeopardy

285
Q

grounds to dismiss an indictment

UWorld

A
  1. defective grand jury proceedings
  2. deficiencies in indictment
  3. violations of certain constitutional rights (5th double jeopardy, 6th speedy trial, and 5th/14th DP ONLY)

note how 4th violations are NOT included as a ground to dismiss indictment

286
Q

which party has the burden to establish that a D waived their Miranda rights?

MBE Practice Exam #4

A

prosecution bears the burden
by a preponderance of evidence

287
Q

use and derivative use immunity

UWorld

A

prevents govt from using self-incriminating testimonial communications + any evidence derived from them against the suspect in any way that could lead to a criminal prosecution

288
Q

transactional immunity

UWorld

A

protects the suspect from being prosecuted for any crimes associated with self-incriminating testimonial communications

Rocking the Bar Exam (16 decks)

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