Crim (Law & Pro)

Question 1

Elements of a Crime
(Overview)

MED

Answer 1

In order to be guilty of a crime, the prosecution must prove that the defendant is guilty of all elements of the crime beyond a reasonable doubt.

Elements:
* Physical act (actus reus)
* mental state (mens rea)
* causation (actual and proximate cause)
* concurrence (mental state and physical act occur at the same time)

Question 2

Physical Act - Actus Reus
(Elements of a Crime)

MED

Answer 2

The physical act of the defendant must be voluntary.

Failure to act, is not criminal unless:
* defendant had legal duty to act
* defendant had knowledge of facts concerning duty to act AND
* it was reasonably possible for defendant to act

Duties to act: contractual, parent-child relationship, voluntary (e.g. police officer), statute creating duty, where defendant creates the danger.

Question 3

Causation
(Elements of a Crime)

HIGH

Answer 3

Causation requires both: Actual causation (“but for”) AND proximate cause (“foreseeable” or “natural and probable consequence”).

Question 4

Superseding Intervening Cause
(Elements of a Crime - Causation)

HIGH

Answer 4

A superseding intervening cause is a third party’s act that breaks the chain of causation. Breaking the chain cuts off defendant’s liablity.

Intervening force must be:
* independent of defendant’s wrongful conduct AND
* was not foreseeable (so out of ordinary it is unfair to hold defendant criminally responsible

Question 5

Simultaneous Acts Rule
(Elements of a Crime - Causation)

HIGH

Answer 5

A person’s act will still be the proximatecause of a resulting injury if his wrongful conduct created a condition of peril (even if later negligent events combined to cause the injury, so lon gas later events are foreseeable).

A defendant’s wrongful act that accelerates death is still the legal cause of death, even if person was going to die eventualy.

Question 6

Mental State (Mens Rea)
Common Law

HIGH

Answer 6

Four mental state categories:

• Specific Intent - intent or desire to engage in the conduct or cause a certain result
• General Intent - awareness of acting a certain way
• Malice - reckless disregard of a known risk that harm may occur
• Strict Liability - no mental state required; just that certain act occured

Question 7

Mental State (Mens Rea)
Model Penal Code

HIGH

Answer 7

Categories of intent:
* Purposefully - conscious objective to engage in the conduct or cause a certain result
* knowingly - aware that their conduct is of a particular nature or will cause a certain result to occur
* recklessly - if consciously disregards a substantial and unjustifiable risk that certain result would occur AND the action is a gross deviation from how a reasonable person would act
* criminal negligence - if should have been aware of a substantial and unjusifiable risk AND failure to perceive risk is a gross deviation from what a resoanble person would observe in similar circumstances

Note: Voluntary intoxication does not excuse recklessness

Question 8

Murder - Common Law
(Homicide)

HIGH

Answer 8

Murder is the unlawful killing of a person with malice aforethought.

Malice aforethought is established upon a showing of:
* intent to kill
* intent to inflict great bodily injury
* a reckless disregard of an extreme risk to human life (depraved heart murder)
* intent to commit an inherently dangerous felony (under felony murder rule)

Murder may be reduced to voluntary manslaugther if there was adequate provocation.

Question 9

Felony Murder Rule
(Homicide)

HIGH

Answer 9

If a person commits or attempts to commit a dangerous felony, and during the commission or attempted commission of that felony, a death occurs, the defendant can be charged with murder.

The death does not need to be intentional, but must be a direct result of the felony, and the felony must be inherently dangerous to human life.

Felonies: Murder, manslaughter, rape, robbery, arson, kidnapping, battery, burglary. (Look to statute)

Question 10

Second Degree Murder

HIGH

Answer 10

Elements:
* unlawful killing
* of a person
* with malice aforethought

Question 11

First Degree Murder

HIGH

Answer 11

Elements:
* willful killing (i.e. specific intent to kill)
* deliberate- acting wit ha cool mind that is capable of reflection AND
* premeditated - had time to think about in advance

Question 12

Murder - Model Penal Code
(Homicide)

HIGH

Answer 12

Murder is a:
* killing of a person
* commited purposely or knowingly OR recklessly under circumstances manifesting an extreme indifference to value of human life

Note: Reckless driving alone does not constitute depraved heart murder unless combined with other aggravating factors.

Question 13

Voluntary Manslaughter - Common Law
(Homicide)

HIGH

Answer 13

Voluntary manslaughter is:
* an intentional killing of a person
* without malice aforethought (there was an adequate provocation)

Adquate provocation is established if:
* the defendant was provoked
* a reasonable person would have been provoked
* there was not enough time to cool off before the killing

Adequate provocation found: adultery, mutual combat, serious assault/injury to a friend/relative, unlawful arrest.

Note: Adequate provocation reduced murder charge to voluntary manslaughter.

Note: Words alone not sufficient for adequate provocation

Question 14

Involuntary Manslaughter - Common Law
(Homicide)

HIGH

Answer 14

Involuntary manslaughter is:
* an unintentional killing of a person
* committed recklessly (conscious disregard of an unreasonable risk of death or serious bodily injury)
* during the commission of a misdemeanor (misdemeanor-murder rule)
* during a non-dangerous felon
* criminal negligence (some jurisdictions) - (i) defendant knew or should’ve known that conduct had high or unreasonable risk of death and (ii) actions were a gross deviation from reasonable person behavior

Question 15

Manslaughter - Model Penal Code
(Homicide)

HIGH

Answer 15

Under the MPC, manslaugther is:
* a killing of a person
* commited recklessly OR
* which would otherwise be murder but is committed under the influence of extreme mental or emotional disturbance

Note: MPC does not distinguish between voluntary and involuntary manslaughter

Question 16

Larceny

HIGH

Answer 16

Larceny is:
* the trespassory taking (taking with no belief of a legal right)
* carrying away (of property)
* with the intent to permanently deprive the owner of the property (must have intent at time of taking the property)

Larceny by trick occurs when one obtains possession but not title of the personal property of another by trick or decemption.

Question 17

False Pretences

HIGH

Answer 17

False pretences occurs when one:
* obtains title
* to personal property of another
* through a known false statement of material fact
* with intent to defraud

Note: Opinion or puffery not enough to be false pretenses.

Question 18

Embezzlement

HIGH

Answer 18

Embezzlement is:
* the fraudulent or wrongful
* conversion
* of personal property of another
* by a person with lawful possession of the property

Note: Intent to permanently deprive the lawful owner of the property is required.

Question 19

Receing Stolen Property

HIGH

Answer 19

Receiving stolen property is a crime when a person:
* receives possession of stolen property
* who knows the property is stolen at the time of receiving it
* with intent to permanently deprive the owner of the property

Question 20

Criminal Possession of Stolen Property

HIGH

Answer 20

Occurs when a person:
* possesses property
* that they know or reasonably should know is stolen
* with intent to either (i) benefit) or (ii) impede the recovery by an owner.

Modern View: knowledge that properyt is stolen can be inferred from circumstances.

Minority view: actual proof of subjectie knowledge is required.

Question 21

Burglary

HIGH

Answer 21

Burglary is:
* the breaking and entering
* of a dwelling
* of another
* at night
* for the purpose of committing a felony inside

Most jurisdictions have extended burglary to include any structure at any time.

Question 22

Rape - Common Law

MED

Answer 22

Rape is:
* the unlawful sexual intercourse
* of a woman by a man (not her husband)
* without her consent

Modern view: marital rape included; gender is irrelevant.

Consent does not exist when:
* actual force is used
* threats of immediate great bodily harm are used
* victim is incapable of consenting (drunk, unconscious or medical condition)
* defendant fraudelently caused victim to believe the act is not intercourse

Note: Rape is a general intent crime and slightest penetration completes crime.

Question 23

Rape - Model Penal Code

MED

Answer 23

Under the MPC, a male who has sexual intercourse with a femalee (not his wife) is guilty of rape if:
* he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping
* he has substantially impaired her power to consent by secretly druggin gher
* the female is unconscious OR
* the female is less than 10 years old

Under MPC, deviate sexeual intercourse has the same elements above but is gender enutral.

Question 24

Statory Rape

MED

Answer 24

Statory rape is:
* the unlawful sexual intercourse
* with a person
* under the age of consent (as defined by statute) regardless of whether against the victim’s will.

Statutory rape is a strict liability crime (no intent required), and a mistake of fact as to person’s age is not a defense.

Question 25

Kidnapping

MED

Answer 25

Common Law: Kidnapping is the confing, restraining or moving of a person without the authority of law.

MPC: A person is guilty of kinapping when they abduct another person for one of the following purposes:
* his intent to compel a third person to pay ransom
* to faciliate the commission of a felony
* to inflict bodily injury or terrorize the victim OR
* to inteferewit hthe performance of any governmental or political function

Question 26

Arson

MED

Answer 26

Arson is the:
* malicious (intentional or reckless)
* burning
* of a dwelling
* of another

Majority: Inludes damage caused by explosives; dwellings include businesses and cars

Common Law: Cannot be convicted of arson when burning own home; instead, misdemeanor house burning

Question 27

Criminal Possession of an Item

MED

Answer 27

Criminal possession normally involves:
* the unlawful possession of an item (weapon or controlled substance)
* with knowledge of the possession AND
* knowledge of what the item is.

Note: For drug possession, knowledge usually doesn’t extend to amount or weight of the substance.

Question 28

Attempt
(Inchoate Crimes)

MED

Answer 28

A person is guilty of attempt if the person:
* had the specific intent to commit a crime AND
* took an overt act sufficiently beyond mere preparation.

Majority and MPC: Require that the overt act be a “substantial step” toward completion of crime.

Minority: Requires that the over ac be “proximate” t othe crime.

Attempt merges with underlying crime: A person cannot be covicted for attempt AND the crime itself

Question 29

Abandonment/Withdrawal as Defense to Attempt

MED

Answer 29

Majority: In most jurisdictions, abandonment or withdrawal is not a defense to attempt once the person has taken a substantial step toward completion of the crime.

Minority and MPC: Abandonment before completion of the crime is an affirmatie defense if:
* defendant voluntarily renounces criminal purpose AND
* completely abandons the effort to commit the crime or otherwise prevents its commission.

Question 30

Conspiracy

MED

Answer 30

Conspiracy requires:
* an express or implied agreement between two or more people
* intent to enter into the agreement (specific intent)
* intent to pursue an unlawful objective (MPC and modern trend - only one party has to meet; common law - all parties have to meet) AND
* commission of an overt act in furtherance of the unlawful objective

Note: Overt act does not have t obe criminal in nature.

Note: Co-conspirators are liable for both the conspiracy AND all foreseeable crimes commited by other co-conspirators in furtherance of the unlawful objective. (i.e. does not merge - can be committed of conspiracy and crime)

Note: Withdrawal is not a defense to conspiracy but is a defense for crimes committed by co-conspirators after the withdrawal.

Question 31

Solicitation

MED

Answer 31

A person is guilty of solicitation if:
* they request another person to commit a crime
* with specific intent that the crime be committed AND
* the other person receives the request

Solicitation merges with the substantive offense.

No defenses once solicitation is complete.

Minority and MPC: Recognize renunciation - requires defendant to (i) voluntarily and completely renounce the soliciation AND prevent the commission of the crime.

Ex: Solicitation merges with murder (cannot be convicted of solicitation and murder).

Question 32

Accomplice Liability

MED

Answer 32

An accomplice:
* aids, abets or facilitates the commission of a crime AND
* has dual intent - (i) intent to assist the primary party and (ii) intent that the crime is committed

Accomplices are liable for all crimes assisted AND all foreseeable crimes committed by the main principal. (Accomplice can be convicted, even if primary actor is acquitted).

Defense: Withdrawal is a defence and is valid only if accomplice withdraws involvement before crime becomes unstoppable. Can be accomplished by (i) repudiating the encouragement given or (ii) neutralizing the assitance.

Question 33

Duress
(Defense)

MED

Answer 33

Excuses a defendant’s conduct if it was the result of:
* a threat of imminent death or serious bodily injury
* to the defendant or another AND
* defedant reasonbaly believed he was unable to avoid the harm by non-criminal conduct

Duressis not a defense to intentional killings.

Question 34

Insanity - M’Naghten
(Defenses)

HIGH

Answer 34

Elements:
* a mental disease or defect that
* resulted in the defendant being (i) unable to know the wrongfulness of his conduct or (ii) unable to understand the nature and quality of his acts.

Some states define “wrongful” as a legal wrong (act was criminal) and others define wrongful as morally wrong (an act condemned by society).

Question 35

Insanity - Model Penal Code
(Defenses)

HIGH

Answer 35

Elements:
* as a result of a mental disease or defect, defendant was
* unable to appreciate the criminality of their conduct OR
* unable to conform their actions to the law

Question 36

Insanity - Irresistible Impulse Test
(Defenses)

HIG H

Answer 36

The defendant’s mental illness made him:
* unable to control his actions OR
* unable to conform his actions to the law

Question 37

Insanity - Durham Test
(Defense)

HIGH

Answer 37

Defendant must show that their unlawful conduct was the product of mental illness.

Question 38

Self-Defense
(Defenses)

HIGH

Answer 38

Non-Deadly Force: Justified when:
* defendnat reasonably believes
* that he is in imminent danger of being harmed AND
* the amount of force used is proportional to the physical harm threatened

Deadly Force: Justified when defendant kills another:
* based on a reasonable belief
* that he was in imminent danger of being killed or suffering great bodily injury AND
* use of deadly force was necessary to defend against danger

Minority: Duty to retreat before deadly force may be used. Defendant must show (i) there was no opportunity to retreat or (ii) retreat could not have been accomplished safely; no duty to retreat in home.

Note: Original aggresor may only use force in self-defense if: (i) they withdraw from altercation and communicate such intent or (ii) other person suddenly escalates the figh with deadly force and withdrawal is not possible.

Question 39

Defense of Others
(Defenses)

HIGH

Answer 39

Steps in Shoes Rule: Defendant steps into shoes of person being attacked and may use force if person being attacked and could have actedd in self-defense.

Reasonable-Appearance Rule: Defendant can use force if he reasonably (but mistakenly ) believed the person being attacked had the right to act in self-defense.

Question 40

Imperfect Self-Defense
(Defenses)

HIGH

Answer 40

Imperfect self-defense is a mitigating defense to murder that can reduce a murder charge to voluntary manslaughter.

Elements:
* Defendant kills another based on a good faith belief that
* they were in imminent danger of being killed or suffering great bodily injury AND
* use of deadly force was necessary to defend against danger BUT
* at least one of those three beliefs was unreasonable

Note: Only some courts allow for defense of others.

Question 41

Intoxication
(Defense)

MED

Answer 41

Voluntary Intoxication: Only a defense to specific intent crimes if it negates the state of mind rquired to commit the offence.

Involuntary intoxication:

Question 42

Mistake of Fact or law.
(Defenses)

MED

Answer 42

Mistake of Fact: is a defense to a crime if it negates the state of mind required for the offense.
* For specific intent crimes, the mistake of fact may be unreasonable. For all others, must be reasonable.

Mistake of Law: Not a defense to a crime.

Question 42

Protection from Unlawful Search and Seizures
(Fourth Amendment)

MED

Answer 42

Under 4th amendment, people are granted protection from unlawful government searches and seizures (does not apply to action by private individuals).

To assert protection, challengerm ust have a reasonable expectation of privacy regarding the item or place searched.

No reasonable expectation of privacy in:
* paint from one’s car
* person’s bank account records
* anything visible from public airspace
* garbage left of curb
* sound of one’s voice
* odors from one’s property
* one’s handwriting AND
* anything that can be seen in or across areas outside one’s home.

Note: SCOTUS has extended to permit an overnight guest to challenge a warrantless search in a home in which they are staying.

Question 42

Arrests
(4th Amendment)

HIGH

Answer 42

For an arrest to be proper, police officer must have probable cause.

Probable cause exits when:
* officer has trustworthy facts or knowledge
* sufficient to warrant a reasonable perso nto believe
* that the person committed a crime.

Officer does not need firsthand knowledge to have probable cause.

If arrest conducted in a public space, probable cause is all that is required; warrant required if at their home.

Question 43

Police FRI; Stop and Inquire

MED

Answer 43

RFI: Police may make a RFI anytime except on a whim.

Stop and Inquire (brief detention for questioning): Officer may stop and inquire if officer
* has reasonable articulable suspicion
* that criminal activity is afoot

Question 43

Stop and Frisk

MED

Answer 43

Police officer may stop and frisk a person if officer:
* has reasonable articulable suspicion
* that criminal acitivty is afoot AND
* that the person has a weapon

Plain Feel Doctrine: Officer may only seize items he or she reasonably believes is contraband or a weapon during the frisk.

Reasonable Suspicion is defined as level of knowledge sufficient to cause a prudent and cautious person under the circumstances to believe that criminal activity is at hand.

Question 44

Valid Search/Warrant
(4th Amendment)

HIGH

Answer 44

A police officer will need a warrant to conduct a search and to seize items, unless a valid exception applies.

For a warrant to be valid:
* there must have been probable cause (reliable info that it is likely that evidence of illegality will be found at the location)
* warrant must state with particularity the place to be searched and the items to be seized AND
* it must be issued by a neutral and detached magistrate.

Question 45

Evidence Obtained w/o Warrant

HIGH

Answer 45

Evidence obtained without a valid warrant should be excluded unless it falls under th exeptions that permit a warrantless search and seizure.

Warrant exceptions are:
* plaint view doctrine
* exigent circumstances (immediate action is necessary)
* a search incident to arrest
* consent
* inventory searches
* stop and frisk
* where SCOTUS has concluded there is a special need

Question 46

Plain View Doctrine
(Warrant Exception)

HIGH

Answer 46

Police may seize evidence withou warrant if:
* it is observed in plain view (with any of the five senses)
* from a place the officer is lawfully permitted to be AND
* probable cause exists to believe that the items are evidence of a crime or contraband

Question 47

Exigent Circumstances
(Warrant Exception)

MED

Answer 47

Exigent circumstances exist if:
* evidence would dissipate or disappear in time it would take to obtain a warrant
* its necessary to prevent the imminent destruction of evidence
* police are in hot pursuit of a felon and evidence is in plain view OR
* emergency aid exception applies (to render emergency assitance to an injured person or to protect person form imminent injury

Note: Entry int oa dwelling based on exigent circumstances requires a serious offense

Question 48

Automobile Exception
(Warrant Exception)

MED

Answer 48

A warrantless search of a car is permitted where police have probable cause that either contraband or evidence of a crime will be found in vehicle.

Police can search entire vehicle and any containers that may reasonably contain the items for which there is probable cause.

Note: In order to search a vehicle after a traffic stop, police officer would need to acquire probable cause prior to searching the vehicle.

Question 49

Search Incident to Arrest
(Warrant Exception)

MED

Answer 49

A police officer making a lawful arrest may conduct a contemporaneous warrantless search of:
* suspect’s person
* area within suspect’s immediate control (wingspan)
* closets and other spaces immediately adjoining the place of arrest (if arrest made at home)
* entire interior or passenger compartment of vehicle if (i) officer has reason t obelieve that evidence relivant to the offense/crime arrested for might e discovered OR (ii) the arrested person is unsecured and could gain access to the vehicle at the time of the search (if arrest made in car)

Question 50

Consent
(Warrant Exception)

MEd

Answer 50

Consent is an exception to the warrant requirement if it is given freely, voluntarily and intelligently.

A third person with possessory rights of the property may consent to a search, but that person must have authority.

When two or more people share common authority over the residence or premises, any one of them amy consent to a lawful search, but officerm ay onl y search common areas and private areas of person providing consent.

Question 51

Inventory Search
(Warrant Exception)

MED

Answer 51

A valid inventory search (search to protect contents) must be:
* reasonable AND
* conducted pursuant to established police agency procedures

Question 52

Coerced Confessions

(14th Amendment - Due Process)

MED

Answer 52

IF a confession is the product of police coercion that overbears the suspect’s free will, then confession is inadmissible.

Police may use coercive conduct (including lying) unless the coercion overcomes the defendant’s free will.

When determining whether confession overcame a person’s free will, courts consider:
* characteristics of the interrogation (length and tactics used)
* characteristics of the individual (age and experience)

Question 53

Privilege Against Self Incrimination
(5th amendment)

HIGH

Answer 53

A person has a right to not incriminate onself and must be given Miranda warnings during a custodial interrogation.

Custody: A person is in custody when they reasonably beliebve they are not free to leave.

Interrogation: When police knew or should have known that their conduct was likely to elicit an incriminating response.

Miranda rights only protect communicative or testimonial statements or acts. Testimonial means the communication relates to a factual assertion or discloses information.

Note: Pre-trail identifications (lineups, photo identifications, blood tests, finger prints, etc) are not testimonial and are not protected by 5th amendment. A suspect in custody after an arrest cannot refuse participation in a lineup.

Question 54

Miranda Warnings
(5th amendment)

HIGH

Answer 54

Miranda warnings inform suspects that:
* they have the right to remain silent
* anything htey say can be used against them in court
* they have the right to talk to an attorne yand have one present when they are questioned AND
* if they cannot afford an attorney, one will be provided to them.

Note: Police need only reasonably convey these rights to a suspect.

Note: Suspect can waive Miranda warnings (voluntarily and knowingly).

Question 55

Public Safety Exception to Miranda Warnings

HIGH

Answer 55

Limited interrogation without Miranda warnings is allowed when police officers ask questions reasonably prompted by a concern for public safety or the safety of the officer.

Question 56

Invoking Miranda Rights

HIGH

Answer 56

When invoking a Miranda right, communication must be clear and unambiguous.

Right to Silence: Once the right to remain silent is invoked, the police may later question the subject. Defendant’s silence cannot be commented on by prosecution or used to incriminate at trial.

Right to Counsel: Once invoked, policem ust stop questioning the suspect on any crime until suspect has spoken with an attorney.
* Custodial interrogation may be reinitiatied if suspect: (i) has been readvised of miranda rights (2) has provided a knowing and voluntary waiver, (3) either a counsel is present, the suspect initiates the communication or at least 14 days have passed since suspect was released from custody.

Question 57

Right to Counsel
(6th Amendment)

MED

Answer 57

The accused has the right to counsel in all criminal prosecutions that carry a substantial risk of jail time (over one year).

Right to counsel attaches once formal adversarial judicial proceedings have been comenced (formal charge, preliminary hearing, indictment or arraignment).

Offense-Specific: right to counsel only applies to the offenses the defendant has formally been charged with and does not prevent police form questiioning defendant about unrelated offenses without an attorney

Question 58

Right to Effective Counsel
(6th amendment)

MED

Answer 58

The 6th amendment also includes the right to have effective assistance of counsel, which includes the effective aid in the preparation and trial of the case.

In order to prove ineffective assitance of counsel, defendant must show that:
* counsel’s performance was deficient AND
* but for counsel’s errors, the result of the trial would have been different

If found, verdictm ust be reversed and defendant is entitled to new trial.

Question 59

Line-Ups
(14th Amendment - Due Process)

MED

Answer 59

When a line-up is unnecessarily suggestive resulting in a substantial likelihood of misidentification, the due process clause is violated (if violated, identification is inadmissible at trial).

Absent improper police influence, an out of court identification is admissible (even if it’s suggestie or conducive to misidentification).

An in-court identification is admissible at trial when:
* the witness identified the defendant in-court based on the witness’ previous knowledge
* which is trustworthy AND
* was obtained by the witness in a previous transaction (usually during the crime).

Question 60

Right to Counsel During Line-Up

MED

Answer 60

A person has a right to counsel during a post-charge lineup, but not a pre-charge lineup because the right to counsel has not yet attached (not yet formally charged with a crime).

Question 61

Right to a Jury Trial
(6th amendment)

MED

Answer 61

A criminal defendant is guaranteed th eright to a jury trial for serious offfenses (imprisonment greater than six months).

A minimum of six jurors is required and verdictm ust be unanimous.

Question 62

Competence to Stand Trial

MED

Answer 62

A defendant is competent to stand trial if they:
* have sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding (must be able to assist in preparing his defense) AND
* has a rational and factual understanding of hte proceedings against them

Note: Defendant can’t be tried (at least until later date) if deemed incompetent.

Note: If there is doubt to defendant’s competency, there must be a hearing; burden on court to assess.

Question 63

Double Jeopardy
(5th Amendment)

MED

Answer 63

Double jeopardy prevents a defendant from being prosecuted twice for the same offense.

Blockburger test: if each crime requires proof of a fact which the other does not then they are two distinc crimes.

Jeopardy attaches once jury is sworn.

Exceptions:
* first trial ends in hung jury
* manifest necessity exists to end original trial OR
* when original trial is terminated at defendant’s request and its not for an acquittal on the merits

A final judgment on a lesser included offense bars prosecution of a greater offense on the same facts unless the greater offense:
* did not exist at the time of the trial OR
* was not discovered despite due diligence

Question 64

Burden of Proof

HIGH

Answer 64

Prosecution must prove every element of a crime beyond a reasonable doubt.

State may require that affirmatie defenses are proved by the defendant (ex insanity or self-defense)

Note: Rebuttable or irrebutable presumptions shifting burden of proof to the defendant violate due process clause.

Question 65

Harmless Error Rule

MED

Answer 65

Even if evidence in violation of the defendant’s constitutional rights was improperly admitted at trial, a guilty verdict will stand on appeal if prosecution vcan prove that the error was harmless because defendant would hae been convicted even without tainted evidence.

Question 66

Exclusionary Rule

HIGH

Answer 66

Evidence obtained in violation of a defendant’s 4-6th amendment rights is inadmissible in a criminal case.

All derviative evidence is also inadmissible under the fruit of the poisonous tree doctrine.

Exception: exclusionary rule does not apply if
* it is shown that the police had an independent source for the secondary evidence (i.e. a legal source seperate from the illegal source)
* the discovery of the evidence would have been inevitable regardless of the illegality OR
* the police relied in good fatih on a defective search warrant

Question 67

Exceptions to Exclusionary Rule - Miranda

HIGH

Answer 67

• failure to give Miranda warnings doe snot require suppression of the physical evidencefound because of the statements (as long as statements are voluntary)
• subsequent statments made after Miranda warnings are admissible
• statments obtained in violation of a suspect’s Miranda rights are inadmissible in the prosecution’s case-in-chief but may be used to impeach a defendnat on cross

Question 68

Forgery

Low

Answer 68

Forgery is:
* creating or altering
* a document with purported legal significance
* to be false
* with the intent to defraud

Question 69

Exculpatory Material - Brady Violation

MBE

Answer 69

The government has a duty to disclose exculpatory material to the defendant.

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

A Brady violation is grounds for reversal or an ew trial if the defendant can prove that:
* evidence was favorable because it is impeaching or exculpatory AND
* prejudice resulted, meaning earlier disclosure of hte evidnece would have created a reasonable probability of a different outcome.