Crim Law/Pro

Question 1

ACTUS REUS?

Answer 1

guilty act

• voluntary act that causes an unlawful result,
• omission to act where ∆ under duty to act, or
• vicarious liability

IMPOSED DUTIES: (1) Statutory, (2) Contractual, (3) Relationship, (4) Voluntary undertaking to rescue that is abandoned & (5) Failing to help after creating the risk of peril

Question 2

MENS REA?

Answer 2

guilty mind; ∆‘s state of mind at time of commission of the crime; Concurrence in time b/w act & requisite mental state: is necessary, but mental state should also actuate, or put into a action, the act or omission.

• PURPOSELY: conscious objective to engage in conduct or cause result
• KNOWINGLY: knows nature &/or result of his conduct
• INTENTIONALLY: desires/sub’l certain acts cause criminal results
• WILLFULLY: encompasses concepts “intentionally” & “purposely,” & used to imply evil purpose in crimes involving moral turpitude
• CRIMINAL RECKLESSNESS: consciously disregards subs’l & unjustifiable risk mat’l element exists or will result from conduct
• CRIMINAL NEGLIGENCE: ∆’s conduct creates create high degree of risk or death or serious injury beyond tort standard of ordinary negligence

Question 3

Specific intent?

Answer 3

desires his conduct result in a particular outcome [unless result is inherently impossible] OR expects (substantially certainty) that purposeful act result in a particular act, even though he does not necessarily want a particular result

• Attempt
• Solicitation
• Conspiracy
• Larceny
• False pretense
• Embezzlement
• Forgery
• Burglary
• Assault
• Robbery
• Intent to kill murder
• Voluntary manslaughter

Question 4

General intent?

Answer 4

commission of an unlawful act [negligence/ recklessness]

• Battery
• Rape
• Kidnapping
• False imprisonment
• Involuntary manslaughter
• Depraved hard murder

Question 5

Malice?

Answer 5

acts intentionally/reckless disregard of an obvious or known risk that the particular harmful result will occur

• Common law murderArson
• Arson

Question 6

Strict liability crimes?

Answer 6

culpability imposed for committing a prohibited act

• Regulatory offense
• Public welfare offenses
• Morality crimes
• Selling liquor to minors

Question 7

Homicide?

Answer 7

killing of a human being caused by another human being

Question 8

Murder?

Answer 8

unlawful killing of a human being with malice aforethought

Question 9

Mens rea for murder falls into what 4 distinct types of malice?

Answer 9

1. Intent to kill: “Deadly weapons doctrine”: inference of intent to kill raised through intent’l use of an instrument, judging from manner of use, is calculated to produce death or serious bodily injury.
2. Intent to cause serious bodily harm: significant but non-fatal injury. [often 2nd-degree murder]
3. Depraved heart murder: extreme recklessness murder; unintentional killing resulting from conduct involving a wanton indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury
4. Felony-murder: killing proximately caused during commission or attempted commission of a serious or inherently dangerous felony. Felony ends: when felon has reached a place of temporary safety [not in process of fleeing]

Question 10

First-degree murder?

Answer 10

intent to kill murder committed with premeditation & deliberation, felony murder and murder accomplished by lying in wait, poison, terrorism or torture

1. PREMEDITATED: reasonable time for premeditation & some evidence of reflection in order to distinguish first-degree murders from “spur-of-the-moment-killings”
2. DELIBERATE: undisturbed by hot blood
3. If murderer does any reflection or premeditation, even if REFLECTION CURSORY & BRIEF, may be guilty of 1st-degree murder.
4. VOLUNTARY INTOXICATION – but still sober enough to form intent to kill – may be able to avoid liability for 1st-degree murder by proof that intoxication precluded him from acting w/ premeditation or deliberation.

Question 11

Second-degree murder?

Answer 11

murder that does not meet the requisite elements of 1st-degree murder [often just intent to kill w/o req. felony]

Question 12

Voluntary Manslaughter?

Answer 12

intentional killing mitigated by adequate provocation or other circumstances negating malice aforethought. [HEAT-OF-PASSION KILLING]

• Adequate provocation - such that a RPP would lose self-control
• Time b/w heat-of-passion & fatal act must not allow a RPP for cool reflection, if so then its not voluntary manslaughter.

Question 13

Involuntary Manslaughter?

Answer 13

unintentional killing resulting w/o malice /aforethought caused either by recklessness or criminal negligence or during commission or attempted commission of an unlawful act

• Criminal negligence: e.g., mishandling loaded weapon or dangerous operation of a vehicle, including driving while intoxicated
• Misdemeanor-manslaughter: unintentional killing that occurs during the commission or attempted commission of a misdemeanor that is malum is se or of a felony that is not of the inherently dangerous type required for felony murder is classified as involuntarty manslaughter under the M.M. rule.

Question 14

Battery?

Answer 14

intentional or reckless unlawful application of force to the person of the victim

• General intent crime: 1) recklessly, 2) negligently or 3) w/ knowledge that his act (omission) will result in criminal liability
• Battery elevated to aggravated status, when:

(1) ∆ causing victim serious bodily injury; (2) ∆ using deadly weapon to commit the battery; or (3) ∆ battering a woman, child, or law enforcement officer.
* Defenses: (1) consent, (2) self-defense or (3) to prevent someone from committing crime

Question 15

Assault

Answer 15

attempting to commit a battery; OR

intentionaly causing victim to fear immediate battery

• Aggravated: (1) ∆ commits an assault w/ a dangerous weapon; (2) ∆ acts w/ intent to rape or murder victim; or (3) special types of particularly vulnerable victims.
• Not defense: lack ability to follow through [unloaded gun] or that victim was unaware
• Conditional threat: generally insufficient, unless accompanied by an overt act to accomplish threat
• Reasonable Apprehension - RPP would expect imminent bodily harm & victim MUST BE AWARE.

Question 16

Mayhem

Answer 16

intent to maim or do bodily injury accompanied by an act that either:

• Dismembers
• Disables his use of some bodily part that was useful in fighting
• Disfigures

Question 17

False Imprisonment

Answer 17

intentional, unlawful confinement of one person by another

• fully confined; do not need to search for escape routes

Question 18

Kidnapping

Answer 18

unlawful

restraint of a person’s liberty

by force or show of force

so as to send victim to another location or conceal him

• Aggravated: ransom, children, to further other felonies

Question 19

Rape

Answer 19

act of unlawful sexual intercourse by a male person with a female person w/o her consent.

[general intent]

• only penetration required, not emission
• Mere threats may constitute rape, b/c force is not required
• modern trend is to require actual consent of the victim; however, consent is determined objectively from the observable circumstances. A victim’s subjective lack of consent will not suffice if the objective circumstances suggest that consent existed.

Question 20

Bigamy

Incest

Answer 20

• Bigamy: marriage by one individual to more than one other person
• Incest: sexual relations b/w individuals who are closely related to one another. The degree of relationship required varies by state

Question 21

Receiving Stolen Property?

FENCE?

Answer 21

receiving of stolen property known to be stolen with the intent to permanently deprive the owner

a party that deals in stolen property.

Question 22

Larceny

Answer 22

[specific intent]

• taking and
• carrying away
• tangible personal property
• of another
• w/ intent to permanently deprive owner thereof
• abandoned property cannot be taken away, but lost or mislaid can
• No intent: If, at time of taking, ∆ intends to return property to victim UNCONDITIONALLY & W/IN A REASONABLE TIME [may be proven w/ pawn slip]
• DOCTRINE OF CONTINUING TRESPASS: one who takes property of another intending to use it temporarily before restoring it unconditionally to its owner may nevertheless be guilty of larceny if he later changes his mind & decides not to return property after all
• ∆ intends to replace or pay for property at later time: such intent may negate intent to permanently deprive if PROPERTY IS EASILY REPLACEABLE
• ∆ at time of taking has GF BELIEF that ∆ entitled to possession: there is no intent to permanently deprive, even if belief is incorrect & unreasonable

Question 23

Embezzlement?

Answer 23

• fraudulent conversion or misappropriation
• of the property of another
• of one who is already in lawful possession
• Conversion: action toward property that seriously interferes w/ rights of owner
• Specific fraudulent intent required may be negated by a claim of right
• ∆ who converts property but intends to later substitute it for equivalent property: is still guilty
• not getting if received by mis-delivery
• will not overlap with larceny cause already in lawful possession

Question 24

Larceny by Trick?

Answer 24

∆ obtains possession of personal property of another by means of a representation or promise that he knows is false at time he takes possession

• ∆’s fraud is used to cause the victim to convey possession, not title, as in false pretenses.
• Doctrine of “continuing trespass”: applicable

Question 25

Obtaining Property by False Pretenses

Answer 25

• a false representation of a present or past material fact by ∆
• which causes the victim to pass title to his property
• to the ∆
• who knows the representation is false
• and intends thereby to defraud.

Question 26

Bad Checks?

Credit Card Fraud?

Answer 26

• BC: ∆’s knowledge of no-account or insufficient funds checks given w/ the intent to defraud
  
  • obtains title by stolen or unauthorized credit card
• CCF: Obtaining property by means of stolen or unauthorized credit card use [statutory crime]
  
  • obtains title by stolen or unauthorized credit card

Question 27

Robbery

Answer 27

felony consisting of all elements of larceny, & 2 additional elements:

1. Taking must be from: person or presence of person [area w/in their control]
2. Accomplished by:
   
   • force or violence (use of force must be: contemporaneous w/ taking) OR
   • intimidation or the threat of violence (threat must actually cause fear in victim at time of taking)

Question 28

Extortion

Answer 28

[blackmail] - obtaining the property of another by use of threats of future harm to the victim or his property

Question 29

Forgery?

Answer 29

fraudulent making [or alteration] of a false writing with an apparent legal significance w/ the intent to make wrongful use of the forged document

• Alteration must be material (change legal meaning or effect of doc) to qualify the action as an element of forgery.

Question 30

Burglary

Answer 30

1. Breaking AND
   • slightest enlarging of an opening
   • Constructive Breaking: via fraud, deception or threat of force
2. Entering
   • Breaking to exit: insufficient
   • Any portion of body inside structure
   • Insertion of a tool is insufficient to facilitate the entering, it must be part of a person
3. Of the dwelling house of another (any structure)
4. With the intent to commit a felony or larceny therein.

Question 31

Arson

Answer 31

malicious burning of any structure of another

• burning: Mere blackening not enough, but charring is sufficient

Question 32

INCHOATE CRIMES:

Attempt

Answer 32

1. Specific intent to bring about a criminal result, and
2. Significant overt act in furtherance of that intent

• must go beyond mere act in preparation & go toward perpetration, such as a “proximity” test: how close in time & physical distance ∆ was to carrying out actual event. Crimes endangering others more distance allowed.
• “Equivocality” test: actions could have no other purpose
• Defenses:
  • Abandonment: voluntary [true change of heart, not quitting b/c difficult] & completely [∆ not merely postponing]
  • Legal impossibility: ∆’s actions do not constitute a crime
  • Factual impossibility: not defense to attempt [shooting into an empty house]

Question 33

INCHOATE CRIMES:

Solicitation

Answer 33

enticing, advising, inciting, inducing, urging, or otherwise encouraging another to commit a crime

• Must intend solicitee perform criminal acts [specific intent].
• Offense complete at the time: solicitation is made
• Solicitation charge will merge into the completed offense and will likely merge into the conspiracy
• Defenses: voluntary intoxication & unreasonable mistake of facts [Don’t have to be able to do crime solicited (impossibility) merely need ∆ to believe its possible.

Question 34

INCHOATE CRIMES:

Conspiracy

Answer 34

an agreement b/w 2+ persons to commit a crime

1. Must be an actual agreement to commit a crime
   
   • not feigned agreement [like w/ an under cover cop]
2. Overt act [act in furtherance of agreement]
   
   • Need not be criminal/unlawful & only 1 party to conspiracy need to commit it for them all to be liable
     * Defenses: (1) Withdrawal, but must timely communicate it to all other co-conspirators and affirmative act to thwart conspiracy – if he doesn’t thwart it but gives notice it cuts his liability for further crimes; OR (2) impossibility: is not a defense
     * Only 2 conspirators, acquittal of 1 conspirator: results in acquittal of other co-conspirator [bc takes at least 2 ppl & only 1 left]

Question 35

INCHOATE CRIMES:

Wharton Rule

Answer 35

crimes where 2+ people are necessary for commission of the offense, then can’t have conspiracy. Unless it involves an additional person not essential to the crime. [statutory rape, gambling, adultery]

Question 36

INCHOATE CRIMES:

Pinkerton Doctrine

Answer 36

each co-conspirator is liable for the crimes of all the other co-conspirators where the crimes were both:

1. foreseeable outgrowth of the conspiracy, and
2. committed in furtherance of the conspiratorial goal

Question 37

INCHOATE CRIMES:

single vs. multiple conspiracies

Answer 37

• CHAIN relationship: several crimes committed under one large scheme where each member generally knows of other parties’ participation & community of interest exists, 1 single conspiracy.
• WHEEL-AND-SPOKE relationship: one common member enters into agreements to commit a series of independent crimes w/ different individuals, multiples conspiracies exist.

Question 38

Accomplice

Answer 38

person who actively participates in commission of a crime, even if they take no part in actual criminal offense

• Must act with the INTENT of assisting the principal to commit the crime
• Bystanders, even approving ones, are not accomplices
• Liable for both the planned crime and any other crimes that occur in the course of the criminal act, as long as they are foreseeable
• Ex: A bunch of people sees a bar fight and they are applauding, laughing, and yelling, “Go for it!” These people may be liable as accomplices.

Question 39

Principal in the First Degree

vs.

Principal in the Second Degree

Answer 39

1. actual perpetrator who performs the criminal act w/ the requisite mental state. (May be more than one person)
2. one present at the scene of the felony & aids, abets, or encourages commission of the crime w/ requisite intent.

punished to same extent as the perpetrator

Question 40

Accessory Before the Fact

vs.

Accessory After the Fact

Answer 40

one who aids, abets, counsels or other wise encourages the commission of a felony but is not present at the scene; May be punished same degree as principal w/in scope of conspiracy

vs.

1. Completed felony must have been committed;
2. Knew of commission of the felony; &
3. Given aid to the felon to hinder felon’s apprehension, conviction, or punishment.

Question 41

DEFENSES:

Insanity?

4 tests for insanity?

Answer 41

∆ insane at time of his criminal act,

no criminal liability will be imposed

1. M’Naghten test
2. Irresistible impulse test
3. Durham (New Hampshire/Product) Rule
4. Model Penal Code test

Question 42

DEFENSES:

Insanity:

M’Naghten test

Answer 42

∆ relieved of criminal responsibility if at time of the commission of act he was laboring under such a defect of reason from a disease of the mind as not to know the nature & quality of his act

• Disease of mind: all mental abnormalities, but psychopathic

Question 43

DEFENSES:

Insanity:

Irresistible impulse test

Answer 43

∆ not criminally responsible if he had a mental disease that kept him from controlling his conduct

Question 44

DEFENSES:

Insanity:

Durham (New Hampshire/Product) Rule

Answer 44

∆ not criminally responsible if his unlawful act was product of mental disease or defect (meaning it would not have been committed “but for” the defect or disease).

Question 45

DEFENSES:

Insanity:

Model Penal Code test

Answer 45

∆ not criminally responsible if at time of conduct,

as a result of mental disease or defect,

he lacked substantial capacity

to appreciate the criminality (wrongfulness)

of his conduct or

to conform his conduct to the requirements of law.

Question 46

DEFENSES:

Intoxication:

Voluntary vs. Involuntary

Answer 46

• Voluntary: possible defense to only specific intent crime, if it negates requisite mental state
• Involuntary: Can be a valid defense to general intent, specific intent, and malice crimes when it negates the mens rea necessary for those crimes.

Question 47

DEFENSES:

Justification

Answer 47

if justified, no crime has been committed, notwithstanding what might otherwise be a criminal result

Question 48

DEFENSES:

Justification:

Self-Defense

Answer 48

∆ has actual reasonable belief he’s in imminent danger of unlawful bodily harm, he may use reasonably necessary [proportional] force to prevent the harm. [Inapplicable to an INITIAL AGGRESSOR]

• Deadly force [threatens death or serious bodily harm] only in response to an attack that threatens death or great bodily injury
  
  • Require retreat if feasible before use of DF, if:
    
    • (1) it can be done safely
    • (2) ∆ not in his own home, auto or workplace
• Aggressor [one creates reasonable threat of harm or commits crime against victim] may regain right to self-defense, if:
  
  • upon complete withdrawal perceived by other party, OR
  • escalation of force by the victim of the initial aggression

Question 49

DEFENSES:

Justification:

Defense of 3rd Person

Answer 49

DF lawful if 3rd party would have be justified in using such force

Based on reasonableness of ∆ ‘s belief that 3rd person was being unlawfully attacked

Question 50

DEFENSES:

Justification:

Defense of Property

Answer 50

Reasonable non-deadly force justified in defending one’s property from: theft, destruction or trespass where ∆ has reasonable belief that property is in immediate danger & no greater force than necessary is used

• DF may never be used to merely defend property. Unless, ∆ reasonably believes entry made or attempted in his dwelling by one intending to commit a felony therein.

Question 51

DEFENSES:

Justification:

Necessity

Answer 51

to avoid imminent injury resulting from natural (non-human) forces

or

where an individual reasonably believes that his criminal conduct is necessary to avoid greater harm that would result from compliance with the law

Not applicable where ∆ created the perilous situation.

Question 52

DEFENSES:

Justification:

Duress

Answer 52

justifies criminal conduct where ∆ reasonably believe that the only way to avoid unlawful bodily harm or imminent death is to engage in unlawful conduct. (caused by human forces rather than nature)

• Duress, or coercion, is not available as a defense to murder

Question 53

Criminal Procedure:

4th Amendment

Answer 53

protects people and their papers, houses, and effects from UNREASONABLE SEARCHES AND SEIZURES, and requires particularized, as opposed to general, warrants that are supported by probable cause

• Analysis
  
  1. Was there a search/seizure?
  2. Was it reasonable? (probable cause or reasonable suspicion or exception)
  3. Remedy –Exclusionary Rule

Question 54

Criminal Procedure:

5th Amendment

Answer 54

requires that no person be denied their life, liberty, or property WITHOUT DUE PROCESS OF LAW, and nor shall any person be subject for same offense BE TWICE PUT IN JEOPARDY of life or limb; grants each person a privilege AGAINST COMPELLED SELF-INCRIMINATION.

Question 55

Criminal Procedure:

6th Amendment

Answer 55

requires, in relevant part, that in all criminal prosecutions, the accused has a RIGHT TO COUNSEL TO ASSIST IN HIS/HER DEFENSE.

Question 56

Exclusionary Rule

Answer 56

All evidence seized, whether directly or indirectly, in violation of 4th amendment is inadmissible/excluded in a criminal proceeding; thus, it’s fruit of the poisonous tree

Question 57

Exclusionary Rule Exception

Answer 57

1. INDEPENDENT SOURCE: evidence obtained from a source independent of illegality
2. INEVITABLE DISCOVERY: evidence would have been discovered regardless of illegality
3. Inapplicable to MIRANDA VIOLATIONS
4. Inapplicable to evidence for use of IMPEACHMENT
5. Evidence obtained pursuant to invalid warrant & reasonable well trained officer would have believed [GOOD FAITH] said warrant was valid [facially valid] [single act of negligence, but not gross or systematic negligence]

Question 58

∆ must have ________ to raise a 4th Amendment claim.

Answer 58

standing [victim of search/seizure]

Question 59

4th Amendment applies only to ________ conduct

Answer 59

government

• If an actor must be an agent of the federal, state, or local gov’t OR acting pursuant to an official gov’t policy, then 4th amendment is applicable

Question 60

Probable Cause

Answer 60

Reasonably trustworthy info.

w/in officer’s knowledge

sufficient to warrant a reasonable man to believe

that “a crime has been or is being committed.”

• Authority to arrest/custody, conduct personal/prop search & use of deadly force[needs both PC & Necessity]

Question 61

Seizure

Answer 61

totality of the circumstances

leave a reasonable person believing he was not free to leave the situation.

• Stop (RS )
• Custody/Arrest (PC}
• unlawful ARREST result in lawsuits or fruit of poisonous tree, not dismissal of charges

Question 62

Warrant

Answer 62

judicial authorization for police action supported by sworn affidavits or testimony based on up to date testimony

1. PC; and
2. shall particularly describe/state:
   
   • (i) persons, places, or things to be searched or seized;
   • (ii) What evidence is expected to be found.

• Scope of search is limited to: named persons or named places
• Arrest warrant not required before making an arrest in a public place, but is if arresting someone in their own home
• Search warrant for a premises carries with it: implicit authority to detain occupants on premises during search, but not to search the persons of people on the premises
• May only destroy prop if reasonably necessary to execute warrant
• Improper to issue a warrant, even if PC, if intrusion is unreasonable.

Question 63

Police may seize these at anytime without a warrant?

Answer 63

• Contraband
• Fruits of a crime
• Instrumentality of a crime
• Elements of a crime

Question 64

Warrant based on an informant’s tip, relevant factors:

Answer 64

1. credible information
2. reliable informant
3. police corroboration
4. declaration against interest

An informant generally need not reveal his identity.

Question 65

∆ may challenge the affidavit upon which a warrant was issued by:

Answer 65

1. substantial showing that affidavit contained false statements;
2. statements were made intentionally, knowingly, or in reckless disregard for the truth; and
3. magistrate’s finding of probable cause would not have been made w/o the false statements.

If ∆ cannot prove conditions: warrant will be upheld if there was a substantial basis to issue the warrant in the first place

Question 66

Arrest

Answer 66

• valid arrest may occur w/ or w/o a warrant.
• Generally, no warrant is required, just PC.
• Officer personally witnesses crime
• PC obtained indirectly through an informant:
  
  • 1) Informant’s tip contained specific details
  • 2) Reliability of both details and informant being confirmed prior to the moment of arrest [corroborating evidence …more than what your wearing but evidence of crime]
• Arresting officers must: knock & announce their identity before making an arrest, but failure does not trigger exclusion of evidence.
• Police may not legally search for subject of arrest warrant in 3rd party’s home, absent exigent circumstances/consent w/o 1st obtaining search warrant

Question 67

Reasonable Suspicion

Answer 67

“specific articulable facts that criminal activity is afoot” based on the totality of the circumstances

Question 68

Reasonable Suspicion:

STOP

Answer 68

• Officer by means of physical force,
• or show of authority,
• has in some way restrained the liberty of a citizen.

This seizure occurs in Fed’l law once suspect “submits” to show of authority or physical force.

Temporary and last no longer than necessary to effectuate purpose of stop.

Question 69

Reasonable Suspicion:

Stop & Frisk

Answer 69

Stop is a Seizure &

Frisk is a Search w/in 4th Amendment

• Scope: pat down of outer clothes b/c RS person armed & dangerous

Question 70

Reasonable Suspicion:

Pretextual Stops

Answer 70

a police officer stopping a driver for a traffic violation, minor or otherwise, to allow the officer to then investigate a separate and unrelated, suspected criminal offense

If officer has valid reason for a stop,

his subjective intent is inconsequential.

Question 71

Flight is not enough for _____, but is enough for _____.

Answer 71

Probable Cause

Reasonable Suspicion

Question 72

Expectation of Privacy:

Curtilage

Answer 72

area that “harbors the intimate activity associated with sanctity of a man’s home and privacies of life” to which intimate activities of home extend, which provides a reasonable expectation of privacy like the home. Items w/in curtilage are protected, such as trash cans.

Factors to consider:

1. proximity to residence,
2. enclosures,
3. activity for which it’s used,
4. measures taken to secure it from observation by passersby, etc.

Question 73

Expectation of Privacy:

Search (w/in meaning of 4th)

Answer 73

[Katz] Entrance into a place where:

1. person exhibited an actual (subjective) expectation of privacy; &
2. society recognizes expectation as (objectively) reasonable.

Question 74

Expectation of Privacy:

Standing for 4th Amendment Challenge

Answer 74

• ownership or possessory interest in premises is sufficient for standing for a 4th amend. challenge
• passenger in automobile:
  
  • standing to challenge a police stop of an automobile, BUT
  • lacks standings to challenge validity of search of vehicle
• ∆ overnight guest in another’s home: has standing to challenge a search, but those not staying over night have no standing

Question 75

Expectation of Privacy:

No Expectation of Privacy:

Answer 75

1. Open Field;
2. Trash (abandoned);
3. naked eye observations of your property from air;
4. aerial photography of a fenced in complex;
5. handwriting exemplar;
6. voice exemplar;
7. bank records;
8. pen registers (record telephone #s dialed); &
9. private conversations that include eaves droppers.

Question 76

Warrant Exceptions:

Searches Incident to a Lawful Arrest

Answer 76

purpose of protecting arresting officers &

preventing destruction of evidence

• Scope: area in suspect’s possession or under his control for weapons & evidence (“grab area” or “wingspan area”)
• Issue is PC to arrest, search is a right after that point
• Issuance of a traffic citation alone does not justify a search

Question 77

Warrant Exceptions:

Searches Incident to a Lawful Arrest:

PROTECTIVE SWEEP

Answer 77

cursory search of premises incident to an arrest & conducted to protect safety of police officer or others [w/in a dwelling]

• RS that area swept harbors individual posing possible danger
• Scope: limited to places where people might be hiding nearby [not entire home]

Question 78

Warrant Exceptions:

Automobile Exception

Answer 78

lesser expectation of privacy exists in: an automobile, boat or airplane than in one’s home, due primarily to its inherent mobility

• If PC exists to search moving or temporarily stopped vehicle, then may seize it & search even if had time to acquire warrant
• Not applicable if (1) arrested, (2) handcuffed, and (3) removed from scene
• Size of an item can affect if and how police may search for it.
  
  • Police have PC to search a container even when they don’t have PC to search the whole car.

Question 79

Warrant Exceptions:

Automobile Exception:

Parked Car

Answer 79

Parked vehicles require warrants,

b/c of decreased threat of mobility

Question 80

Warrant Exceptions:

Automobile Exception:

K9 UNIT

Answer 80

Dog sniffing for contraband is not considered a search

Question 81

Lawful stop based on RS of a criminal violation can ripen into?

Answer 81

PC sufficient for a warrantless search or

spoil and provide no grounds for further search

Question 82

Warrant Exceptions:

Inventory Search

Answer 82

police lawfully impound vehicle, which justifies routine inventory search. [Formal impoundment procedures must be followed] B/c purpose not criminal investigation, do not need PC/warrant to justify search

1. Impoundment of the vehicle was necessary;
2. Inventory of the vehicles contents necessary;
3. Reasonable in its scope; &
4. Not done as a ruse to get evidence

Question 83

Warrant Exceptions:

Administrative Searches & the Balancing Justification [Checkpoints]

Answer 83

Conducted for purposes other than traditional criminal law enforcement; thus, a legitimate administrative or regulatory purpose

Question 84

Warrant Exceptions:

Administrative Searches & the Balancing Justification [Checkpoints]:

Administrative warrant

Answer 84

generally required for administrative inspectors to search private homes or businesses, with some exceptions:

1. searches of businesses traditionally subject to extensive regulation & affect important public interests,
2. search of locked storeroom of firearms warehouse during reasonable hour, &
3. search for highly contaminated food

Question 85

Warrant Exceptions:

Administrative Searches & the Balancing Justification [Checkpoints]:

Checkpoints

Answer 85

police may stop traffic to check the vehicle registration, drivers’ licenses, or sobriety of automobile drivers, if:

1. random, and
2. based on fixed formula, [e.g., every or every other]

Checkpoints to search for information on recent local crimes are Constitutional, search for evidence of illegal drugs violates 4th amend.

Question 86

Warrant Exceptions:

Administrative Searches & the Balancing Justification [Checkpoints]:

Border Crossings

Answer 86

incident of nat’l sovereignty, customs & immigration searches, when conducted by gov’t agents in a routine manner & not particularized for a specific person or specific property: not invasion of privacy & doesnot require PC

• Vehicles at a border crossing may be stopped w/o cause for questioning, but PC is required: to fully search the vehicle
• Where a suspect refuses to submit to an X-ray by customs agents at the border: & reasonable justification for detention initially exists, the detention may continue until a bowel movement occurs

Question 87

Warrant Exceptions:

Plain View

Answer 87

officer may seize illegal property that’s clearly visible w/o a warrant

• Requirements:
  
  1. police are lawfully positioned &
  2. it’s immediately apparent that the evidence is incriminating

Question 88

Warrant Exceptions:

Plain View:

Plain Feel

Answer 88

RS needed same as S&F, & immediately apparent that item is evidence of a crime or contraband [Cannot manipulate the item]

Stop & Frisk:

• Stop is a Seizure & Frisk is s Search w/in 4th Amend.
• Scope: pat down of outer clothes b/c RS person armed & dangerous

Question 89

Warrant Exceptions:

Consent

Answer 89

• an individual may waive her 4th Amendment rights*
  1. Voluntary & intelligent (Voluntariness: based on totality of the circumstances) AND
  2. Made by a person w/ authority
• Scope of consent: You articulate your own consent. [You can say yes, then no. Where or what can be searched]

Question 90

Warrant Exceptions:

Consent:

Common authority

Answer 90

“mutual use of property by person generally having joint access or control for most purposes”

• 3rd-Party Consent: Requires actual or apparent authority to consent and may only search area of common authority
• 3P consent invalid if person against whom evidence is later admitted is present & expressly objects to search

Question 91

Warrant Exceptions:

Hot Pursuit

Answer 91

police in actual hot pursuit of a fleeing suspect to prevent imminent escape or destruction of evidence [not applicable to minor crimes]

• May enter & search private dwelling in reasonable pursuit of fleeing suspect, May conduct protective cursory sweep of house to look for other suspects
• Suspect must be aware that he is being pursued

Question 92

Warrant Exceptions:

Exigent Circumstances

Answer 92

PC that following protocol would gravely endanger lives or evidence would be lost or destroyed before a warrant could be obtained

Question 93

Four BASES TO EXCLUDE STATEMENTS AND CONFESSIONS?

Answer 93

1. Voluntariness—statement must be voluntarily made based on totality of circumstances. [Due process clause of 5th & 14th]
2. Right to Counsel—Statements made during any “critical stage” of a criminal proceeding inadmissible unless defendant afforded right to counsel [6th amendment right to counsel]
3. Miranda—Statements made during custodial interrogation are inadmissible in absence of Miranda warnings [5th amendment privilege against self-incrimination]
4. Fruits of Illegal Conduct—Even voluntary statements obtained as fruits of prior illegal searches and seizures are inadmissible. [5th amendment privilege against self-incrimination]

Question 94

STATEMENTS and CONFESSIONS:

Inadmissible Statements:

INVOLUNTARY

Answer 94

made or coerced as a result of direct or implied promises [we’ll let you go] or threats of violence

• Inadmissible Statements - Statement are inadmissible if involuntary under Due Process Clauses of the 5th and 14th Amendments.
• W**ill overborne & capacity for self determination critically impaired?
• Trickery: does not equate to coercion [we got you on tape]
• Involuntary may NOT be introduced for prosecution’s case or impeachment
  
  • If admitted at trial gov’t must prove beyond reasonable doubt that statement did not contribute to guilty plea

Question 95

STATEMENTS and CONFESSIONS:

6th Right to Counsel

Answer 95

Statements made during any “critical stage” of a criminal proceeding are inadmissible,

unless ∆ is afforded the right to counsel

• Request must be unambiguous at which time interrogation must cease & counsel musts be present at all questioning unless he waives right
• OFFENSE-SPECIFIC: may ? re: other offenses [even if factually related]
• INDIRECT & SURREPTITIOUS INTERROGATIONS: ∆ must demonstrate that police/informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.

Question 96

STATEMENTS and CONFESSIONS:

Miranda Standard

Answer 96

absolute prerequisite to “custodial interrogation,” bars use of statement in case & chief but not impeachment

• 1) right remain silent, & 2) anything said can be used in court; 3) right consult w/ atty & have atty present during questioning, & 4) if indigent, atty provided at no cost. (need all parts, not words)
• State’s burden of proving waiver voluntary, knowing, & intelligent
• Public safety Exception – real public safety issue then may forgo
• After rights are read, what happens then: (1) Invoke right to remain silent OR (2) have attorney present; OR (3) Waive rights and make a statement

Question 97

STATEMENTS and CONFESSIONS:

Miranda Standard:

SUBSEQUENT MIRANDA warnings

Answer 97

• Do not cure previous miranda-less statement, but new statements admissible.
• However, cannot use miranda-less statement to coerce new statements

Question 98

STATEMENTS and CONFESSIONS:

Miranda Standard:

CUSTODIAL POLICE INTERROGATION

Answer 98

1. questioning initiated by police
2. after in custody or deprived of freedom of action in any significant way &
3. [interrogation] Any words/action on by police should know [∆’s susceptibility] are reasonably likely to elicit incriminating response from ∆.

Question 99

STATEMENTS and CONFESSIONS:

5th amend. right against self-incrimination

Answer 99

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

Elements: (1) Compulsion by state; (2) witness against oneself; & (3) ultimate use in a criminal trial

• Not just answers statement supporting conviction under fed’l criminal statute, but if would furnish a link in the chain of evidence needed to prosecute claimant for fed’l crime
  
  • Content of communications/Testimonial in nature/Capable of true/false, not production of pre-request produced docs or physical evidence
• Judge’s discretion, but if ∆ takes stand waives privilege
• Non-∆ cannot refuse to take to take stand, must take stand & invoke privilege after each question asked.

Question 100

STATEMENTS and CONFESSIONS:

5th amend. right against self-incrimination:

Immunity

Answer 100

used to force testimony

• Transactional - (“blanket” or “total”) completely protects witness from future prosecution for crimes related to his or her testimony.
• Use/derivative use - only prevents prosecution from using witness’s own testimony or evidence derived from testimony, against him.
  
  • If evidence substantiating supposed crime is acquired independent of witness’s testimony—the witness may be prosecuted for same.

Question 101

STATEMENTS and CONFESSIONS:

5th Amendment right to counsel

Answer 101

Right to have atty present during interrogation,

once invoked no more questioning about ANY crimes, interrogation must cease until atty present

• Once counsel retained to represent ∆, gov’t can’t deny atty reasonable access to client, nor ignore request to confer w/ client prior to, if not during, interrogation. [Interest: desire to deal with police only through counsel]
• NOT OFFENSE SPECIFIC

Question 102

STATEMENTS and CONFESSIONS:

5th Amendment right to silence

Answer 102

• Once invoked, all questions cease & right must be scrupulously honored.
• OFFENSE-SPECIFIC
• Significant amt time passed, then may ask again about same crime, after a fresh set of Miranda warnings
• After 2-week period: ∆ released from custody or returned to real life/gen’l population may give fresh warnings and try again
• Merely remaining silent does not invoke this right
• Repeated Miranda warnings only needed for significant break

Question 103

STATEMENTS and CONFESSIONS:

Fruit of an illegal arrest or search

Answer 103

exclude even a voluntary statement or confession.

Question 104

GUARANTEES OF A FAIR TRIAL:

The right to counsel at trial

Answer 104

assistance of effective council. [presumed]

∆ must prove both:

1. counsel was ineffective; &
2. reasonable probability that verdict would have been not guilty had counsel been effective

• ∆ may not be imprisoned/incarcerated for an offense w/o effective council, but can be convicted
• Ex: Assistance of counsel is still effective even if atty fails to present mitigating evidence, fails to mount a case for life imprisonment, & waives final argument during sentencing of death penalty case

Question 105

GUARANTEES OF A FAIR TRIAL:

Jury Trial

Answer 105

attaches in any criminal trial where the ∆ faces a sentence of longer than 6 months

• Makeup of the Jury - ∆ right to jury selected from cross-section of community where trial taking place
• Violates equal protection to exclude prospective jurors based on race or gender

Question 106

DOUBLE JEOPARDY?

Answer 106

5th amend. right preventing undue harassment & expense by eliminating the risk of a ∆ being punished twice for the same offense

• JEOPARDY ATTACHES:
  
  • Non-jury trial: when 1st witness sworn & court begins to hear evidence
  • Jury trial: when jury is impaneled & sworn
  • Grand jury indictment does not attach jeopardy
• SAME OFFENSE: 2 crimes same if one set of facts proves both crimes OR second offense contains all elements of the 1st offense, plus additional elements, the 1st offense is a lesser-included offense of the 2nd

Question 107

DOUBLE JEOPARDY:
Separate Sovereignties Doctrine

Answer 107

double jeopardy prohibition does not prevent dual prosecution by separate sovereigns (State & Feds)

Question 109

PRE-TRIAL RIGHTS:

Right to a Speedy Trial

Answer 109

if violated then the remedy is dismissal

• Right attaches: once ∆ is “accused,” such as upon arrest or filing of charges
• Right waived: ∆ willfully delays trial by filing pretrial motions, seeking a suppression hearing, or ∆’s absence.
• Court judges violations of right to speedy trial by balancing:
  
  • (1) length of delay;
  • (2) reason for delay, &
  • (3) prejudice to ∆

Question 110

PRE-TRIAL RIGHTS:

Exculpatory Information

Answer 110

Upon request by defense, the prosecution must disclose evidence:

• favorable to the accused
• or there’s reasonable probability that it is favorable to the accused
  
  • However, the prosecution is not required to disclose this info. to a criminal ∆ prior to entering into a plea agreement w/ him

Question 111

PRE-TRIAL PROCEDURES: CHRONOLOGY FROM ARREST TO TRIAL

5th amend. right to Grand Jury Indictment

Answer 111

jury determination of whether there’s enough evidence for a trial.

• Charge involves “capital or infamous crimes” [req. if punishable by life/death]
• Post indictment can only reveal statutory irregularities or perjuring testimony
• ∆ may not confront witnesses or introduce evidence, Miranda not needed & can only talk to atty outside grand jury room

Question 112

PRE-TRIAL PROCEDURES: CHRONOLOGY FROM ARREST TO TRIAL

Bail Hearing

Answer 112

∆ entitled to an individualized hearing to determine whether bail should be granted or denied [Not a critical stage]

Question 113

PRE-TRIAL PROCEDURES: CHRONOLOGY FROM ARREST TO TRIAL

Plea Bargaining

Answer 113

If ∆ pleads guilty and thus waives a jury trial to which judge must determine if plea was voluntarily & intelligently made. [Boykinize]

Question 114

Identifications of a ∆

Answer 114

• Pre-Indictment I.D.: Due Process Standard - Any lineup, showup, or photo identification will be inadmissible as violating due process when: I.D. is unnecessarily suggestive & likely to produce an irreparable mistaken I.D.
• Factors: degree of suggestiveness, opp. To view, degree of attention, accuracy of description, level of certainty, time b/w the crime and I.D.
• If out-of-court I.D. excluded for suggestiveness/unreliability, then subsequent in-court I.D. will not be allowed, UNLESS: prosecution can clearly & convincingly show subsequent I.D. stemmed from independent, “purging” source
• Right to Counsel in Post-Indictment Lineups - attaches upon the start of adversary proceedings, to which an indictment would qualify.

Question 115

United States has the power to criminalize and to prosecute crimes that occur?

Answer 115

1. Anywhere in US territory;
2. On ships and planes; and
3. By United States nationals abroad

By contrast, the states can only punish crimes having some connection to the state.

• Whole crime or part of the crime occurred inside the state
• Conduct outside the state that involved an attempt to commit a crime inside the state
• A conspiracy to commit a crime and an overt act occurred within the

state

Question 116

4 categories of crimes that are specific intent crimes under the common law:

Answer 116

FIAT

1. First-degree murder: On the MBE, the question will expressly state if a defendant is charged with first-degree murder
2. Inchoate crimes: “CATS”—conspiracy, attempt, and solicitation
3. Assault with attempt to commit a battery
4. Theft offenses: e.g., larceny, embezzlement, forgery, burglary, and robbery

• Ex: The main reason to memorize the FIAT crimes is that there are some defenses – most notably voluntary intoxication and unreasonable mistake of fact – that are available only for specific-intent crimes.

Question 117

Mens Rea: The Common Law States of Mind:

Malice

Answer 117

The defendant acted in a reckless disregard of a high risk of harm occurring.

• 2 malice crimes:
  
  1. MURDER &
  2. ARSON
• Ex: Arson is the malicious burning of the dwelling of another. Paul is holding a Fourth of July cookout at his house. He invites his friend Lynn to the cookout. Paul is going to throw off fireworks at the party. Some of the fireworks seem to be duds, so Lynn tosses them all onto the gas grill. Some explode and catch Paul’s house on fire. Lynn is charged with arson. At trial, she argues that she didn’t want to cause Paul’s house to burn down.
• Ex: A person throws a bunch of bowling balls off an overpass to see if it’ll dent the cars below. One of the bowling balls hits a driver and kills him. That is considered a malice crime.

Question 118

Mens Rea: The Common Law States of Mind:

MERGER

Answer 118

Def can be convicted of more than one crime arising out of the same act. However, a Def cannot be convicted of Q crimes when the 2 crimes merge into 1. In that case, Def can only be convicted of one of the crimes.

Two categories of merger:

1. lesser-included offenses (offense in which each of its elements appears in another offense, but other offense has something additional); &
2. merger of an inchoate & a completed offense
   
   • EXCEPTION: conspiracy

Question 119

DEFENSES:

Mistakes of Law vs. Mistakes of Fact

Answer 119

Mistake negates mens rea

• MoL: Claims by Def that he cannot be convicted b/c he thought act was lawful; however, ignorance of the law is no excuse.
• MoF: A defense for specific intent crimes; general intent (if belief reasonable); not a defense to strict liability crim

Question 120

Withdrawal from a Conspiracy:

Answer 120

• At common law, it’s impossible to withdraw from a conspiracy, bc crime is completed the moment the agreement is made.
• Under the federal rule, 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
• Under the MPC rule, a conspirator who helps to thwart the success of a conspiracy can raise a withdrawal defense even after an overt act has occurred.
• Although a defendant who tries to withdraw may remain liable for conspiracy (e.g., because notification was not timely), that defendant will not be liable for any substantive crimes committed after his withdrawal.

Question 121

Searches Incident to Arrest?

Answer 121

• Permits contemporaneous search of person arrested & immediate area surrounding the person to: 1) Protect officer & public’s safety; & prevent destruction of evidence
• Arrest on the street: Can search the suspect and his wingspan
• Arrest at home: Can search suspect & his immediate arrest area.
• Arrest in a car: May search passenger’s compartment of a vehicle as long as the person/ suspect still has access to the vehicle at the time
  
  • Cannot arrest a suspect, cuff him, and put him in the back of a squad car and then go back and search through the car (because the suspect is not a danger to the officers anymore; he cannot access a weapon from the car; and/or evidence from the crime is likely not in the car)
• Inventory searches: When police arrest a driver and impound his car, it may be searched for inventory purposes.