Crim Law/Proc Hypo Notes - WIP

Question 1

In order to be guilty of common law burglary, one must break and enter a dwelling with:

Answer 1

The specific intent to commit a felony therein.

Question 2

The right to be free of double jeopardy for the same offense arises from ______.

Answer 2

The Fifth Amendment

Question 3

Jeopardy attaches in a jury trial when:

Answer 3

The jury is empaneled and sworn.

Question 4

What is robbery?

Answer 4

the taking and carrying away (asportation) of the personal property of another from the other’s person or presence by force or intimidation.

Question 5

If murder is committed during the commission of an armed robbery, and only the murder charge has been tried, can the D still be charged for the armed robbery later?

Answer 5

Yes, because there is no constitutional requirement that all known charges against a defendant be brought in the same prosecution.

For purposes of the Double Jeopardy clause, two crimes do not constitute the “same offense” if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes.

Question 6

What is larceny?

Answer 6

The taking and carrying away of property of another by trespass with the intent to permanently deprive the owner of the property.

Only works when the original possession was wrongful.

Question 7

Doctrine of Continuous Trespass

Answer 7

When the D wrongfully takes property without the intent to permanently deprive, but later intends to permanently deprive.

This forms the intent to steal under larceny.

Question 8

What is embezzlement?

Answer 8

The fraudulent conversion of property by a party in rightful possession.

Question 9

What is extortion?

Answer 9

Larceny plus the threat of future harm.

Question 10

What is false pretenses?

Answer 10

Victim intended to give thief the title, but thief obtained their permission under false pretenses.

Question 11

What is larceny by trick?

Answer 11

Victim intended to give the thief mere possession, but not title, and thief intends to permanently deprive the owner of the property.

Question 12

What is burglary?

Answer 12

The breaking and entering of the dwelling house of another at night with the intent to commit a felony therein.

Not burglary if the D came in through a wide open window or unlocked door, because no breaking was involved.

Question 13

What are the elements of self-defense?

Answer 13

Non-deadly force is permitted if victim reasonably believes force is about to be used on him.

Deadly force is permitted when the victim is without fault, confronted with unlawful force, and reasonably believes he is threatened with imminent deadly force or great bodily harm.

The aggressor has no right to use self-defense, but they can regain the right if they effectively withdraw and communicates that withdrawal, or the other person escalates the aggression and the initial aggressor has no chance to withdraw.

Deadly force can never be used to protect personal property, only to protect family inside the house.

Question 14

What is the imperfect self-defense doctrine?

Answer 14

If the D uses deadly force and was at fault in starting the altercation, but unreasonably but honestly believed he was justified in using deadly force, then his charge is reduced from murder to manslaughter.

Question 15

What are the elements of insanity defense?

Answer 15

M’Naughten - Doesn’t know right from wrong or understand the nature of actions.

Irresistible Impulse Test: Unable to control actions or conform conduct to the law.

Durham: But for the mental illness, defendant would not have committed the act.

MPC Test: Combination of M’Naughten and irresistible impulse.

Question 16

What are the elements of the intoxication defense?

Answer 16

Defense to specific intent crimes. (Premeditated first degree murder, property offenses, burglary, inchoate crimes, attempted battery form of assault)

Only applicable when the D takes a substance without knowledge of its nature, under duress, or under medical advice.

Treat involuntary intoxication like insanity.

Question 17

What are the elements of the mistake of fact defense?

Answer 17

A mistake of fact may negate the Mens Rea requirement.

Any mistake of fact is a defense for specific intent crimes, but not a defense for strict liability crimes.

Question 18

What is the exclusionary rule?

Answer 18

Evidence must be excluded if obtained in violation of Defendant’s 4th, 5th, or 6th Amendment rights.

Any evidence derived from the above must also be excluded (Fruit of the Poisonous Tree Doctrine)

The violation must be of the defendant’s rights.

Question 19

What are the 4th Amendment doctrines?

Answer 19

No unreasonable search and seizures. (of persons or evidence)

Question 20

What is the approach for the Seizure of a Person?

Answer 20

1) Determine if there is a seizure.
- seizure of a person occurs anytime a person would feel that he is not free to leave or terminate the encounter

2) Determine type of seizure
- Arrest: May occur without a warrant unless the arrest is at the D’s home. Police need probable cause for warrantless arrest.
- Terry Stop: Requires reasonable suspicion of illegal activity, supported by articulable facts. A first for weapons is permitted only if the officer has reason to believe the detainee is armed and dangerous
- An automobile stop: Permitted with reasonable suspsicion. Roadblocks do not require reasonable suspicion, but require neutrality and a basis that is closely connected to automobiles.

Question 21

What is the approach for Seizure of Evidence?

Answer 21

1) Who seized the evidence?
- If it was someone other than cops, the exclusionary rule doesn’t apply.

2) Did the D have a reasonable expectation of privacy?
- Homes/overnight guest/cars
- No expectation of privacy in garbage, or things in the public

3) Was there a valid warrant?
- Probable cause?
- Good faith exception

4) Is there a valid exception to the warrant requirement?

Question 22

What are the exceptions to the warrant requirement?

Answer 22

1) Search incident to lawful arrest: If constitutional arrest, police may conduct contemporaneous search of arrestee’s wingspan.
- Police can search passenger compartment of car IF:
a) the arrestee is unsecured and may still gain access to the vehicle, OR
b) the police reasonably believe evidence of the arresting offense may be found.

2) The automobile exception: Applies only when police have probable cause to believe they will find contraband or evidence of a crime.
- police can search anywhere in the car where they might find the thing they have probable cause to search for.

3) Plain view: Police may seize any evidence in their plain view if they have the right to be where they are.
- the item must clearly be contraband.

4) Consent: May be given by anyone the police reasonably believe has apparent authority to consent.
- Scope extends to all areas to which a reasonable person under the circumstances would believe the consent extends.
- One occupant cannot give valid consent when another is present and objects, or give consent for an area over which the occupant does not have apparent authority.

5) Stop and Frisk: If the police reasonably believe the detainee to be armed.
- Officer can pat down outer clothing unless she has specific information that a weapon is hidden in a particular area of clothing.
- Officer can reach into clothing and seize any item that she believes to be contraband based on its “plain feel”.

6) Hot pursuit, fleeting evidence, and emergency aid.

Question 23

What are the standards for confessions?

Answer 23

The 5th Amd bars compelled self-incrimination.

The police must clearly inform detainees of their rights.

Statements obtained in violation are generally inadmissible at trial.

Question 24

What is the Miranda approach for confessions?

Answer 24

1) Was the perp in custody?
- Would a reasonable person feel free to leave?
- Does the environment present the same coercive pressures as stationhouse questioning?

2) Did the perp know the person questioning him was a cop?
- No? Miranda warnings are not needed.

3) Was there an interrogation?
- Includes any words or conduct by the police that they should know are likely to elicit an incriminating response.

Question 25

What is the Miranda approach when the warnings have already been given?

Answer 25

1) The right to remain silent and the right to an attorney must be requested in a specific and unambiguous manner.
2) Any statement obtained in violation of detainee’s request for silence or an attorney are excluded under exclusionary rule.

Question 26

What is the 6th Amendment?

Answer 26

Gives the D right to counsel after indictment. A D who has been arrested but not charged does not have a right to counsel, but does have one under 5th Amd for Miranda purposes.

6th Amd right to counsel is offense specific, so only applies in terms of the offense D has been charged with.

Question 27

What is Double Jeopardy?

Answer 27

The 5th Amendment generally bars a person from being retried for an offense ONCE THE JURY HAS BEEN SWORN IN, or the first witness has been sworn in for a bench trial.

Question 28

What are the exception for Double Jeopardy?

Answer 28

1) Hung Jury
2) The trial had to be discontinued because of manifest necessity or trial is terminated at behest of defendant.
3) Retrial after successful appeal.
4) Reinstatement of charges after a breach of plea bargain.

Question 29

When do you apply Double Jeopardy?

Answer 29

Two crimes are considered the same unless each crime requires an additional element that the other does not.

Jeopardy for a greater offense bars retrial for a lesser included offense.

Jeopardy for lesser included offense generally bars retrial for a greater included offense.

Double Jeopardy restrictions (state vs. federal government) are not restricted by double jeopardy.

Question 30

What is murder?

Answer 30

The killing of a human being with malice aforethought.

Question 31

How do you establish malice aforethougt?

Answer 31

1) Intent to kill
2) Intent to inflict serious bodily injury
3) Intent to commit a dangerous felony
4) Depraved heart murder

Question 32

What is felony murder?

Answer 32

An unintentional killing that results from the commission or attempted commission of a serious or inherently dangerous felony.

Everyone who participated in the felony is charged with felony murder.

Question 33

What are the traditional “serious or inherently dangerous” felonies?

Answer 33

BARRK

Burglary
Arson
Robbery
Rape
Kidnapping

Question 34

What is depraved heart murder?

Answer 34

An unintentional killing that results from D’s reckless conduct.

Question 35

What are the three types of manslaughter?

Answer 35

1) Voluntary manslaughter: an intentional killing in the heat of passion where D acts with adequate provocation.
2) Involuntary manslaughter: Unintentional killing that results from D’s criminally negligent conduct.
3) Misdemeanor manslaughter: Felony murder’s little brother ( unintentional assault and battery killing)

Question 36

What are the elements of the M’Naughten test for insanity?

Answer 36

1) A diseased mind
2) caused a defect of reason
3) which left D at the time of his actions lacking the ability to either
- know the wrongfulness of his actions, OR
- understand the nature and quality of his actions

Question 37

When is the defense of intoxication applicable?

Answer 37

Normally a defense to specific intent crimes, but with an exception.

If you form the intent to commit a crime, and then become intoxicated to work up the nerve, then the defense is not applicable.

Question 38

What offense is the defense of duress not applicable to?

Answer 38

Murder

Question 39

Is a lawyer required to be present during a post-charge lineup?

Answer 39

Yes, the D has a 6th Amendment right to counsel after being charged during a lineup.

The right to counsel attaches as soon as the accused is in sight of the identification witnesses.