Crim Law & Procedure Flashcards

Question

Inchoate Offenses: generally

Answer 1

Inchoate means incomplete. There are three inchoate offenses.

Answer 2

Rule: Conspiracy is an agreement, with an intent to agree, and an intent to pursue an unlawful objective. ~~Notes on Common Law Conspiracy - No Merger Conspiracy does NOT merge with the substantive offense. On the bar exam you CAN be convicted of conspiring to do something and doing it. Example: Robbery and conspiracy to commit robbery. - Agreement Requirement for Conspiracies The agreement need not be expressed. Intent can be inferred from conduct. • Bilateral approach: The traditional (common law) rule required two guilty parties. Thus, under this approach, if one person (in a two-party conspiracy) is merely feigning agreement, the other person cannot be guilty of conspiracy. Furthermore, the acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defen- dant under this approach. • Unilateral approach: The modern trend (and MPC approach) requires that only one person have a genuine criminal intent. - Overt Act Requirement The majority rule is that in order to ground liability for conspiracy there must be an agreement plus some overt act in furtherance of the conspiracy. The minority rule and the common law rule grounded liability for conspiracy with the agreement itself. (1) If you are operating under the majority rule that requires an agreement plus an overt act, any little act will do to be an overt act in furtherance of conspiracy, even an act of mere preparation. (2) Notes on the MBE regarding majority and minority rules: Always apply the majority rule UNLESS specifically told otherwise. - Factual Impossibility Factual impossibility is no defense to conspiracy. - Withdrawal Withdrawal, even if it is adequate, can never relieve the defendant from liability for the conspiracy itself. The defendant can withdraw from liability for the other conspirators’ subsequent crimes. But he cannot with- draw from this conspiracy.

Answer 3

Rule: Solicitation is asking someone to commit a crime. The crime of solicitation ends when you ask them. Note that under the common law, it is not necessary that the person solicited agree to commit the crime. What if the person you ask to commit the crime agrees to do it? Then it becomes a conspiracy, and the solicitation merges and the only crime left when the other person agrees to do it is conspiracy. Note: Factual impossibility is no defense.

Answer 4

Rule: (1) Specific intent plus (2) overt act in furtherance of the crime. For purposes of attempt, the overt act must be a sub- stantial step in furtherance of the commission of the crime; thus, mere preparation cannot ground liability for attempt. - Defense of Abandonment The majority rule is that, once Defendant has taken a substantial step toward committing the crime, aban- donment is never a defense. The MPC allows for this defense only if it is fully voluntary and a complete renunciation of criminal purpose. - Impossibility Legal impossibility is a defense to attempt; but factual impossibility is not a defense.

Answer 5

COMMON LAW MURDER (generally): Murder is the unlawful killing of another human being with malice aforethought. Such a state of mind exists if there is: • Intent to kill; or • Intent to commit a felony; or • Intent to inflict great bodily harm; or • Reckless indifference to an unjustifiably high risk to human life.

Answer 6

(1) Premeditated killing • First the victim must be human. • The defendant must have acted with intent or knowledge that his conduct would cause death. (2) Felony murder (discussed in detail below) (3) Homicide of a Police Officer (a) The defendant must know the victim is a law enforcement officer, and (b) The victim must be acting in the line of duty.

Answer 7

In many states, second-degree murder is classified as a depraved heart killing—a killing done with reckless indifference to an unjustifiably high risk to human life; or Murders that are not classified as first-degree murders (e.g., premeditated killings or first-degree felony murders or homicide of a police officer).

Answer 8

Rule: Any killing—even an accidental killing—commit- ted during the course of a felony. - Defenses to Felony Murder (1) If the Defendant has a defense to the underlying felony, then she has a defense to felony murder. (2) The felony they are committing must be a felony other than the killing. (3) The deaths must be foreseeable. (4) Deaths caused while fleeing from a felony are felo- ny murders. BUT once the Defendant reaches a point of temporary safety, deaths caused thereafter are NOT felony murders. (5) At common law, Defendant is not liable for the death of a co-felon as a result of resistance by the victim or the police.

Answer 9

(1) Killing in the heat of passion resulting from an adequate provocation by the victim; (2) The provocation must be one that would arouse sudden and intense passion in the mind of an ordi- nary person such to cause him to lose self-control; (3) There must not have been a sufficient time between the provocation and the killing for the passions of a reasonable person to cool; and (4) The defendant in fact did not cool off between the provocation and the killing. - Imperfect Self-Defense If Defendant has an honest but unreasonable belief that his life was in imminent danger, this defense will reduce a murder to manslaughter. Note: Only some states recognize this doctrine.

Answer 10

(1) A killing of criminal negligence or | (2) Misdemeanor manslaughter—killing someone while committing a misdemeanor or an un-enumerated felony.

Answer 11

Cause-in-fact: The Defendant’s conduct must be the cause-in-fact of the victim’s death. In other words, the death would not have occurred but for the Defendant’s conduct. Proximate cause: The general rule is that a Defendant is responsible for all results that occur as a natural and probable consequence of his conduct even if he did not anticipate the exact manner in which they would occur.

Answer 12

Rule: Unlawful application of force to the person resulting in either bodily injury or offensive touching. * A battery need not be intentional. * The force need not be applied directly. * Remember that battery is a general intent crime.

Answer 13

(1) An attempt to commit a battery, or (2) The intentional creation – other than by mere words – of a reasonable apprehension of imminent bodily harm. The Assault/Battery distinction: If there has been an actual touching, the crime is battery.

Answer 14

Aggravated Assault is an Assault plus one of the following: • The use of a deadly or dangerous weapon; or • With the intent to rape, maim, or murder.

Answer 15

Rule: Unlawful confinement of a person without his valid consent. Note: If a known alternate route is available, the confinement element will not be met for purposes of false imprisonment. Note: One’s consent to the confinement precludes it from constituting false imprisonment.

Answer 16

Rule: Confinement of a person with either some movement or concealment in a secret place

Answer 17

Most Modern Statutes: Sexual Assault. For questions dealing with rape/sexual assault on the bar exam: the slightest penetration completes the crime.

Answer 18

Statutory Rape is a strict liability crime, meaning consent of the victim is no defense and mistake of fact is no defense.

Answer 19

Rule: Common law larceny requires a wrongful taking, a carrying away of property of another by trespass with intent to permanently deprive. Notes on the common law rule: (1) The slightest movement of the property is enough for purposes of the bar exam. (2) The intent to deprive the owner permanently must exist at the time of the taking or it is not common law larceny. BUT if a person takes prop- erty not intending to steal it, but then later decides to keep the property, she can be guilty of larceny under the theory of continuing trespass. (3) Taking property in the belief that it is yours (or that you have some right to it) is NOT common law larceny. note: It is possible to commit larceny of your own property if another person, such as a bailee, has a superior right to possession of the property at that time

Answer 20

Rule: The fraudulent conversion of property of another. Notes for the MBE: (1) The embezzler always has lawful possession, followed by an illegal conversion. (2) A trustee is often the MBE embezzler. (3) You don’t have to carry away to be an embezzler – just the lawful possession. (4) The embezzler doesn’t have to get the benefit.

Answer 21

Rule: The Defendant persuades the owner of property to convey title by false pretense (false representation). Notes for the MBE: (1) It is the conveyance of title that is the center of false pretenses. (2) This false representation could be as to a pres- ent or past fact. (3) A false promise to do something in the future cannot ground liability for false pretenses. “Larceny by Trick” distinguished: If only possession of the property is obtained, the offense is larceny by trick. If title is obtained, the offense is false pretenses.

Answer 22

Rule: The taking of personal property of another from the other person’s presence, by force or threat with the intent to permanently deprive him of it. Notes for the MBE: (1) The presence requirement is very broadly drawn, and would even cover a farmer tied up in his barn and taking things from his house. (2) As for taking either by force or threat, things such as ripping a necklace from a person’s neck is sufficient. (3) The threat must be a threat of imminent harm. is the following an example of ARMED robbery? [hypo:] Carl is walking down the street with his hand in a paper bag. As Lenny approaches from the opposite direction, Carl stops Lenny and pushes the paper bag into Lenny’s ribs. “I’ve got a gun in here. Give me all of your money or I’ll shoot you.” Carl grabs the money and is arrested two blocks later by a nearby officer, who discovers that Carl did not have a gun in the paper sack, but was using his finger to poke Lenny in the ribs. Is Carl guilty of armed robbery? -> Yes! This is a simulated deadly weapon scenario at common law

Answer 23

Rule: Knowingly seeking to obtain property or services by means of a future threat. Differences between Extortion and Robbery: • You don’t have to take anything from the person or his presence to be extortion. • The threats are of future harm—not imminent harm.

Answer 24

* The making or altering of a false writing with intent to defraud. * Note: Any writing that has apparent legal significance can be subject to the crime of forgery.

Answer 25

Rule: Breaking and entering of a dwelling of another at night with the intent to commit a felony therein. Notes for the MBE: a. Breaking—can be actual (involving some force, however slight) or constructive. (1) Actual breakings: It is not an actual breaking for someone to come uninvited through a wide open door or window. If wide open – there is no breaking. BUT if someone pushes open an interior door to the bedroom or living room then a breaking exists. (2) Constructive breakings: A breaking by fraud or threat. b. Entering—occurs when any part of the body crosses into the house. c. Dwelling house of another—cannot be a barn or a commercial structure. d. At night—common law had to be at night. e. With the intent to commit a felony therein. The intent to commit the felony must exist at the time of the breaking and entering or it is NOT common law burglary.

Answer 26

Rule: The malicious burning of the dwelling of another. As for the “malice” requirement, no specific intent is required. Acting with a reckless disregard of an obvious risk that the structure would burn will suffice for arson culpability. Notes for the MBE: (1) Only applies to burning – not to smoke damage. Scorching is insufficient, but charring is sufficient. (2) At common law, the building burned had to be a dwelling; it could not be a barn or commercial structure. (3) At common law, the burning had to be a house of another. One could not be guilty of burning her own house at common law.

Answer 27

What you need to know for the bar exam—the four trigger phrases that are tied to the four tests for the insanity defense. The four tests for insanity are: (1) M’Naghten rule: At the time of his conduct, Defendant lacked the ability to know the wrongful- ness of his actions or understand the nature and quality of his actions. (2) Irresistible Impulse: Defendant lacked the ca- pacity for self-control and free choice. (3) Durham Rule: Defendant’s conduct was a prod- uct of mental illness. (4) Model Penal Code: Defendant lacked the ability to conform his conduct to the requirements of law.

Answer 28

- Voluntary Intoxication: Self-Induced Intoxication Voluntary intoxication is a defense on the bar exam only to specific intent crimes (and no other kind of crime). Note: For purposes of the bar exam, addicts and alcoholics are always considered voluntarily intoxicated. - Involuntary Intoxication (1) Unknowingly being intoxicated, or (2) becoming intoxicated under duress. Examples of involuntary intoxication: • You have something slipped into your drink (and you didn’t know what it was or what its effects are); or • You are forced to drink. Note: Involuntary intoxication is a form of insanity. Thus, it is a defense to all crimes.

Answer 29

Non-deadly force: a victim may use non-deadly self-defense any time the victim reasonably believes that force is about to be used on him. ~~Use of Deadly Force in Self-Defense - Majority Rule A victim may use deadly force in self-defense any time the victim reasonably believes that deadly force is about to be used on him. - Minority Rule A victim is required to retreat if it is safe to do so. If— but only if—the examiners tell you that you are in one of these so called “retreat” or minority rule jurisdictions, there are three exceptions to that duty to retreat: • (1) no duty to retreat from your home; • (2) no duty to retreat if you are the victim of a rape or a robbery; and • (3) police officers have no duty to retreat. - Original Aggressor and Self-Defense To get back the defense of self-defense, the original aggressor must: (1) Withdraw, and (2) Communicate that withdrawal. Note: If the victim of the initial aggression suddenly escalates a minor fight into one involving deadly force and does so without giving the aggressor the opportunity to withdraw, the original aggressor may use force in his own defense (including deadly force, if reasonable). - Defense of Others Rule: A defendant can raise a “defense of others” defense if he reasonably believes that the person assisted would have had the right to use force in his own defense. Majority rule: there need not be a special relationship between the defendant and the person in whose defense he acted.

Answer 30

Rule: Duress is a defense to a criminal act if: (1) The person acts under the threat of imminent infliction of death or great bodily harm, and (2) that belief is reasonable. Threats to harm a third person may also suffice to establish the defense of duress. Note: Duress is a defense to all crimes except homicide.

Answer 31

Rule: Conduct that would otherwise be criminal is justifiable if, as a result of pressure from natural forces, the defendant reasonably believes that his conduct was necessary to avoid a greater societal harm. Note: the necessity defense differs from duress because duress involves a human threat, and necessity involves pressure from natural forces.

Answer 32

Rule: Deadly force may never be used solely to defend your property.

Answer 33

Rule: Mistake of fact is a defense only when the mistake negates intention. The mistake has to be reasonable to be a defense to a malice or general intent crime. BUT—on the Bar Exam—any mistake, no matter how ridiculous, is a defense if the defendant is charged with a specific intent crime. Mistake of fact is NEVER a defense to strict liability crimes.

Answer 34

General rule: It is not a defense to a crime that the defendant was unaware that her acts were prohibited by law or that she mistakenly believed that her acts were not prohibited. Also note: This is true even if her ignorance or mistake was reasonable.

Answer 35

Entrapment is a valid defense only if: (1) The criminal design originated with law enforcement officers, and (2) The defendant must not have been predisposed to commit the crime.

Answer 36

``` • Fourth Amendment: prohibition against unreasonable search and seizure • Fifth Amendment Privilege against compulsory self-incrimination Prohibition against double jeopardy • Sixth Amendment Right to speedy trial Right to a trial by jury Right to confront witnesses Right to assistance of counsel • Eighth Amendment: prohibition against cruel and unusual punishment The death penalty Prisoner rights ```

Answer 37

Any exercise of control by a government agent over a person or thing.

Answer 38

Rule: Probable cause exists when a reasonably prudent person would believe that a suspect has committed or is committing a crime. Any arrest must be based on probable cause. Arrest warrants are generally not required before arresting someone in a public place. However, a non-emergency arrest of an individual in her home does require an arrest warrant. Station house detention: The police need probable cause to arrest you and compel you to come to the police station either for fingerprinting or interrogation.

Answer 39

An unlawful arrest, by itself, has no impact on any subsequent criminal prosecution.

Answer 40

- Terry Stops The police have the authority to briefly detain a person even if they lack probable cause to arrest. In order to make such a stop, the police must have a reasonable suspicion supported by articulable facts of criminal activity. Reasonable suspicion is more than just vague suspicion and it is less than probable cause. Whether the police have reasonable suspicion depends on the totality of circumstances. - Informants When reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability (including predictive information) to be sufficient.

Answer 41

The police may stop a car if they have at least reasonable suspicion that the law has been violated. Traffic Stops and Police Dogs: During routine traffic stops, a sniff is not a search, so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries. Moreover, in 2013 the Supreme Court held that during such a traffic stop, a dog “alert” to the presence of drugs can form the basis for probable cause for a search. BUT NOTE: In 2013, the Supreme Court also held that the police (without probable cause) cannot use a drug sniffing dog outside of the home of a suspected drug dealer. - Seizure of All Occupants An automobile stop constitutes a seizure of all occupants (driver and any passengers). - Informational/Checkpoint Roadblocks If the police set up a roadblock for purposes other than seeking incriminating information about the drivers stopped, the roadblock will be constitutional. - Ordering Occupants Out of the Car If an automobile is lawfully stopped, an officer may order the occupants out of the car. - Pretextual Stops An officer’s ulterior motive for stopping an automobile is irrelevant, so long as the stopping of the car was legal.

Answer 42

The publicly paid police – on or off duty. Any private individual acting at the direction of the public police. Privately paid police actions do NOT constitute governmental conduct UNLESS they are deputized with the power to arrest you. Examples of privately paid police: • Store security guards • Subdivision police • Campus police

Answer 43

In order to object to a governmental search, one must have standing to object to the search. In order to have standing, a person must have a reasonable expectation of privacy in the item or area searched. - Automatic categories of standing 1. If you own the premises searched, you always have standing to object to the search of the place you own. 2. You live on the premises searched, whether you have ownership interest or not. Example: Grandchild living at grandparents’ home. 3. Overnight guests have standing to object to the legality of the search of the place they are staying. An important “sometimes” category of standing: You own the property seized. If you own the property seized you have standing only if you have a reasonable expectation of privacy in the item or area searched. - The “No Standing” Categories You have NO expectation of privacy, and therefore no standing for anything that you hold out to the public every day. The following is a list of things held out to the public, the seizure of which impli- cates no right of privacy: 1. The sound of your voice. 2. The style of your handwriting. 3. The paint on the outside of your car. 4. Account records held by a bank. 5. Monitoring the location of your car on a public street or in your driveway. Note: In 2012, the Supreme Court held that installation of a GPS device on a suspect’s car constitutes a search within the Fourth Amendment. 6. Anything that can be seen across the open fields. 7. Anything that can be seen from flying over the public air space. 8. The odors emanating from your luggage or car. 9. Your garbage set out on the curb for collection.

Answer 44

- Warrant requirements: There are two core requirements for a facially valid search warrant: probable cause and particularity. 1. The standard for probable cause: A fair probability that contraband or evidence of a crime will be found in the area searched. 2. Particularity: The warrant must state with particularity the place to be searched and things to be seized. - The Warrant May Be Anticipatory A warrant can predict when illegal items may be in a suspect’s home/office and the items need not be on the premises at the time the warrant is issued. - Probable Cause and Informants If an officer’s affidavit or probable cause is based on informant information, its sufficiency is determined by the totality of the circumstances. An informant’s credibility and basis of knowledge are all relevant factors in making this determination. A valid warrant can be based in part on an informant’s tip even though that informant is anonymous. - Execution Only the police (and not a private citizen) can execute a search warrant. Moreover, when executing a warrant in one’s home, the police may not be accompanied by any third parties (unless the third party is there to aid in identifying stolen property).

Answer 45

The arrest must be lawful. If the arrest is unlawful then the search is unlawful. The arrest and search must be contemporaneous in time and place. Geographic scope limitation: What can be searched? The person and the areas within the person’s wingspan. Search incident to arrest & automobiles: The police may search the interior of the auto incident to arrest ONLY IF: 1. The arrestee is unsecured and still may gain access to the interior of the vehicle; or 2. The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle. Note: In 2014 The Supreme Court held that the police, without a warrant, may not search digital information on a cell phone seized from an arrested individual. However, physical attributes of a cell phone may be searched (but not data).

Answer 46

In order for the police to search anything or anybody and fall under the automobile exception they must have probable cause***. Note: If -- BUT only if -- before searching anything or anybody the police have probable cause, then they can search the entire car. This includes the entire interior compartment, and the trunk. Moreover, if there is probable cause, the police may open (without a warrant) any package, luggage, or other container which could reasonably contain the item they had probable cause to look for whether that package, luggage, or other container is owned by the passenger or the driver.

Answer 47

o constitute a valid plain view seizure the police officer must be legitimately present at the location where he or she does the viewing of the item seized. It must be immediately apparent that the item is contraband or a fruit of a crime.

Answer 48

For consent to be valid, the consent must be voluntary. Third Party Consent: Where two or more people have an equal right to use a piece of property, either can consent to its warrantless search. However, if both people are present and one person consents to the search and the other does not consent, then the one who does not consent controls. Note: If a co-occupant who does not consent to a search is removed from the premises for a reason unrelated to the refusal (e.g., a lawful arrest), the police may search upon consent of the other occupant. Also note: Anyone with apparent authority can validly consent to a governmental search.

Answer 49

A Terry stop is a brief detention for the purpose of investigating suspicious conduct. The legal standard for stopping: reasonable suspicion. The reasonable suspicion standard is less than the probable cause standard. A Terry "frisk" is a pat down of the outer clothing and body to check for weapons. Note: If probable cause arises during an investigatory stop, the detention can become an arrest and the officer could then conduct a full search incident to that arrest. Auto stops: If a vehicle is properly stopped for a traffic violation, and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may (1) conduct a frisk of the suspected person, and (2) may search the vehicle, so long as it is limited to the areas in which a weapon may be placed.

Answer 50

- Evanescent Evidence Evanescent evidence is evidence that might disappear quickly if the police took the time to get a warrant. Example: A police officer can scrape under a suspect’s fingernails without getting a warrant because if she took the time to get a warrant the defendant might go wash his hands. But Note: In 2013 the Supreme Court held that officers need to get a warrant before taking a blood sample for a DUI arrest (if it is practical to do so). - Hot Pursuit Hot pursuit of a fleeing felon. Rule of thumb: If the police are not within fifteen (15) minutes behind the fleeing felon, it is not a valid hot pursuit exception Note: If the police are truly in hot pursuit they can enter anyone’s home without a warrant, and any evidence they see in plain view will be admissible. - Inventory Searches Before incarceration of an arrestee, the police may search (1) the arrestee’s personal belongings and/ or (2) the arrestee’s entire vehicle. - Emergency Aid/Community Caretaker Exception This exception justifies a warrantless search if an officer faces an emergency that threatens the health or safety of an individual or the public.

Answer 51

Rule: Public school children engaged in extracurricular activities can be randomly drug tested. Warrantless searches of public school children’s effects, such as purses and/or backpacks is permissible to investigate violations of school rules. A school search will be held to be reasonable only if: 1. It offers a moderate chance of finding evidence of wrongdoing; and 2. The measures adopted to carry out the search are reasonably related to the objectives of the search; and 3. The search is not excessively intrusive.

Answer 52

Permissible border searches include the opening of international mail when there is reasonable cause to believe that the mail contains contraband.

Answer 53

General rule: All wiretapping and eavesdropping requires a warrant. Exceptions to the eavesdropping rule: “Unreliable ear” and “uninvited ear.” - Unreliable Ear Everybody in this society assumes the risk that the person to whom he is speaking will either consent to the government monitoring the conversation or will be wired, and, therefore, has no Fourth Amendment objection on the basis that it was a warrantless search. - Uninvited Ear A speaker has no Fourth Amendment right if she makes no attempt to keep the conversation private.

Answer 54

Any act that “shocks the conscience” used to obtain evidence is unconstitutional. - Shocking inducement If a crime is induced by official actions that shock the conscience, any conviction stemming therefrom is unconstitutional.

Answer 55

Any confession must be voluntary for it to be admissible at trial. Voluntariness is assessed by the totality of the circumstances.

Answer 56

Defendant is entitled to an attorney during all critical stages of a prosecution after formal proceedings have begun. Some key stages where applicable: 1. Post-indictment interrogation 2. Preliminary hearings to determine probable cause to prosecute 3. Arraignment 4. Post-charge lineups 5. Sentencing 6. Felony trials Other stages where NOT applicable: 1. Taking of blood samples 2. Taking of handwriting samples 3. Pre-charge lineups 4. Brief recess during Defendant’s testimony at trial 5. Parole and probation revocation proceedings 6. The taking of fingerprints 7. Photo identification - Offense Specific The Sixth Amendment right to counsel only applies to the specific charge for which Defendant has retained (or been given appointed) counsel. Thus, Defendant may be questioned on an unrelated charge, even though he has counsel for a different charged crime. ~~~Pre-Trial Identifications - Due Process Standard Certain pre-trial identification techniques are so unnecessarily suggestive and so substantially likely to produce a misidentification that they deny due process of law. - Independent Source The remedy for an unconstitutional pre-trial identification is to exclude the in-court identification ... unless the State can show that it had an adequate independent source for that in-court identification (independent of that bad line-up). The most common independent source is that the victim or witness had an adequate opportunity to observe the Defendant at the time of the crime. - Remedy for Violation of Defendant’s Sixth Amendment Right to Counsel If the Defendant was entitled to a lawyer at trial, the failure to provide counsel will result in an automatic reversal of the conviction. However, at non-trial proceedings (such as post- charge lineups), the harmless error test will apply.

Answer 57

Miranda warnings are required when a suspect is in custodial interrogation. When Miranda warnings are required, the suspect must be given the following information: • You have a right to remain silent • Anything you say can be used against you in court • You have the right to an attorney • If you can’t afford an attorney, one will be appointed for you if you so desire. Note: The warnings need not be verbatim, so long as the substance of the warnings is conveyed. - Government Conduct Miranda warnings only apply to interrogation by the publicly paid police. It does not apply where interrogation is by an informant whom the defendant does not know is working for the police. - Custody The legal standard for custody: You are in custody if, at the time of the interrogation, a reasonable person would not feel free to leave. In making this determination, a court will determine whether the situation presents the same inherently coercive pressures as a station house questioning. Determining whether one is in custody is an objective test. -Interrogation Under the Fifth Amendment Miranda doctrine, interrogation is defined as any conduct where the police knew or should have known that they might elicit an incriminating response from the suspect. Note: Miranda warnings are not required prior to the admissibility of what’s known as a spontaneous statement. - Invocation v. Waiver After receiving Miranda warnings, a detainee has several options: do nothing, waive his Miranda rights, assert the right to remain silent or assert the right to counsel. A Miranda waiver must be knowing and voluntary. Courts will employ a totality of circumstances test in making this determination. ~Invoking the right to remain silent~ Invoking the right to silence must be unambiguous. The police may reinitiate questioning after the defendant has invoked the right to si- lence if they scrupulously honor the detain- ee’s request. At the very least, this means that the police may not badger the detainee into talking. In the Supreme Court’s only opinion directly on point, it allowed police to reinitiate questioning when the police waited a significant amount of time, the person was re-Mirandized, and the questions were limited to a crime that was not the subject of the earlier questioning. ~Invoking the Right to Counsel~ The request for counsel can be invoked only by an unambiguous request. If the accused invokes his right to counsel, all questions must cease until (1) the accused is given an attorney or (2) the accused initiates further questioning. ~14-Day Rule~ The prohibition against questioning a detainee after he requests counsel lasts the entire time the detainee is in custody, plus 14 more days after the detainee is out of custody. After that point, the detainee can be questioned regarding the same matter upon receiving a fresh set of Miranda warnings. - Effect of Miranda Violation Generally, evidence obtained in violation of Miranda is inadmissible at trial. Exception: As an exception to the exclusionary rule, a confession obtained in violation of Miranda may be used to impeach the credibility of defendant’s testimony if he takes the stand at trial. - Public Safety Exception If police interrogation is reasonably prompted by concern for public safety, responses to the questions may be used in court, even though a suspect is in custody and Miranda warnings are not given.

Answer 58

Exclusionary rule: a remedy of American constitutional procedure whereby someone who has been the victim of an illegal search or a coerced confession can (among their other remedies) have the product of that illegal search or that coerced statement excluded from any subsequent criminal prosecution.

Answer 59

1. Exclusion does not apply to grand jury proceedings. • A grand jury witness may be compelled to testify based on illegally seized evidence. 2. Exclusion is not an available remedy in civil proceedings. 3. Exclusion is not an available remedy in parole revocation proceedings. 4. Exclusion does not apply to the use of excluded evidence for impeachment purposes. • Since 1980, ALL illegally seized evidence may be admitted to impeach the credibility of the defendant’s trial testimony. • Note: Only the defendant’s trial testimony may be impeached – not the testimony of other defense witnesses. 5. Exclusion is not an available remedy for viola- tions of the knock and announce rule in the exe- cution of search warrants.

Answer 60

The doctrine will not only exclude illegally seized evidence, but will also exclude all evidence obtained or derived from police illegality. Note: The Fruit of the Poisonous Tree Doctrine does not apply to Miranda violations, unless the police act in bad faith in obtaining such information.

Answer 61

There are three (3) ways that the government can break the chain between an original, unlawful police action and some supposedly derived piece of evidence: 1. The government could show that it had an independent source for that evidence, independent of that original police illegality. 2. Inevitable discovery: The police would have inevitably discovered this evidence anyway. 3. Intervening acts of freewill on the part of the defendant.

Answer 62

It is difficult to have live witness testimony excluded as the fruit of illegal police conduct.

Answer 63

The Defendant may not exclude the witness’s in-court identification on the grounds that it is the fruit of an unlawful detention.

Answer 64

The general rule is that an officer’s good faith reliance on an invalid arrest or search warrant over- comes defects with the probable cause or particularity requirements. Four (4) Exceptions to a good faith reliance on a defective warrant: 1. The affidavit underlying that warrant is so lack- ing in probable cause that no reasonable police officer would have relied on it. 2. The affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it. 3. The police officer or prosecutor lied to or misled the magistrate when seeking the warrant. 4. If the magistrate is biased, and therefore has wholly abandoned his or her neutrality.

Answer 65

A conviction will not necessarily be overturned because improperly obtained evidence was admit- ted at trial. On appeal, a court will apply the harmless error test. Under the test, a conviction will be upheld if the conviction would have resulted despite the improper evidence. On appeal, the government bears the burden of showing beyond a reasonable doubt that the ad-mission was harmless.

Answer 66

Before trial, a prosecutor has a duty to disclose exculpatory information. A prosecutor’s failure to disclose evidence, whether willful or inadvertent, violates the Due Process Clause and may be grounds for reversal of a conviction if: 1) The evidence is favorable to the defendant, and 2) Prejudice has resulted, meaning there is a reasonable probability that the result would have been different had the information been disclosed.

Answer 67

- Serious Offenses The constitutional right to jury trial attaches any-time the defendant is tried for an offense for which the maximum authorized sentence exceeds six (6) months. If the maximum authorized sentence is up to or including six (6) months, there is no constitutional right to jury trial. - Number and Unanimity of Jurors The minimum number of jurors permissible is six (6). Regardless of the number of jurors used (6-12), the verdict must be unanimous. - Right to Impartial Jury You have the right to have the jury pool reflect a fair cross-section of the community. BUT you have no right to have the empaneled jury reflect a fair cross section of the community. Impair or Prevent Performance Standard The standard to determine whether a pro- spective juror should be excluded for cause is whether the juror’s views would prevent or substantially impair the performance of her duties.

Answer 68

A criminal defendant’s right to counsel applies to all critical stages of a prosecution, including trial. - Waiver of Counsel/Right to Defend Oneself A defendant has the right to defend himself so long as his waiver of trial counsel is knowing and intelligent, and he is competent to pro- ceed pro se. Note: A defendant can be found mentally competent to stand trial, yet incompetent to represent himself, as determined by the trial judge’s discretion. - Ineffective Assistance of Counsel Rule: There must be deficient performance by counsel and, but for such deficiency, there is a reasonable probability that the result of the proceeding would have been different. Typically, such a claim can only be made out by specifying particular errors of trial counsel.

Answer 69

The absence of face-to-face confrontation be- tween the defendant and accuser does not violate the Sixth Amendment when preventing such confrontation serves an important public purpose, and the reliability of the witness testimony is otherwise assured. [think protecting child by having the testify on CC tv] A defendant who is disruptive may be removed from the courtroom, thereby relinquishing his right of confrontation. - Co-Defendant’s Confession General Rule: A confession implicating a co-defendant is prohibited and inadmissible at their trial Under the Confrontation Clause, prior testimonial evidence may not be admitted unless: (1) The declarant is unavailable, and (2) The defendant had an opportunity to cross-examine the declarant at the time the statement was made

Answer 70

The state must prove every element of a crime beyond a reasonable doubt. Exception: Affirmative defenses (such as insanity, self-defense) generally shift the burden of proof to the defendant.

Answer 71

Prior act evidence is generally admissible for various reasons if it is probative and relevant. EXAMPLE: Evidence of prior bodily injury can be admissible to show that a child victim had sustained repeated and/or serious injuries by non-accidental means to infer that the victim’s death was not accidental, even though there was no direct evidence linking the prior injuries to the defendant.

Answer 72

The death penalty may not be imposed for felony murder where the defendant, as an accomplice, did not take or attempt or intend to take life. However, the death penalty may be imposed on a felony murderer where he participated in a major way in a felony that resulted in a murder and he acted with reckless indifference to the value of human life.

Answer 73

Jeopardy attaches in a jury trial when the jury is sworn. In a bench trial, jeopardy attaches when the first witness is sworn. Jeopardy does not generally attach when the proceedings are civil. Example: It is okay to have a criminal prosecution for tax fraud, and then a civil proceeding to collect the back taxes. Exceptions permitting retrial: 1. Jury is unable to agree upon a verdict. 2. Mistrials for manifest necessity. 3. A retrial after a successful appeal is not double jeopardy. Note: Upon retrial after a successful appeal, the Defendant cannot be retried for a more serious offense than he was convicted of at the first trial EXAMPLE Manslaughter/Murder. If Defendant is convicted of man- slaughter at the first trial, but then successfully appeals to get a new trial, the most serious offense Defendant could now be tried for is manslaughter. 4. Breach of an agreed upon plea bargain by the defendant. Rule: When the defendant breaches a plea bargain agreement, his plea and sentence can be withdrawn and the original charges reinstated.

Answer 74

Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other does not. Lesser included offenses: Being put in jeopardy for a greater offense bars retrial for any lesser included offense. Example: The crime of robbery includes the two lesser crimes of larceny and assault. If you are tried for robbery, you CANNOT be retried for the lesser included offense of larceny. Similarly, if you are first put in jeopardy for the lesser included offense (larceny), you CANNOT later be retried for the greater offense (robbery). Exception: If a Defendant is tried and convicted on a charge of battery, and the victim of the battery later dies due to the injuries, the person can also then be prosecuted for murder. Note: Double jeopardy bars retrial for the same offense by the same sovereign.

Answer 75

The Fifth Amendment Privilege against self-incrimination can be asserted by anyone in any type of case. Anyone asked a question under oath in any kind of case, wherein the response might tend to incriminate her is entitled to a Fifth Amendment privilege. You must assert that privilege the first time the question is asked or you will have waived your Fifth Amendment privilege for all subsequent criminal prosecutions. The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution. If the individual responds to the questions instead of claiming the privilege during a civil proceeding, he cannot later bar that evidence on Fifth Amendment grounds. - Scope of the Protection The Fifth Amendment protects citizens from compelled testimony. Testimonial vs. Physical Evidence The Fifth Amendment does not protect citizens from having the government use physical evidence in ways to incriminate them. Examples of non-testimonial evidence that the prosecution can compel a person to produce: 1. A person’s blood sample; 2. A person’s handwriting sample; 3. A person’s voice sample; 4. A person’s hair sample. A note on DNA collection: The Supreme Court recently held that it is constitutionally valid to take a DNA cheek swab after an arrest for a serious crime. Seizure of Incriminating Documents The Fifth Amendment does not prohibit law enforcement officers from searching for and seizing documents tending to incriminate a person. The privilege protects against being compelled to communicate information, not against disclosure of communication made in the past.

Answer 76

It is unconstitutional for the prosecutor to make a negative comment on the defendant’s failure to testify or on a defendant choosing to remain silent after being given the Miranda warnings. Exception: The prosecutor can comment on the defendant’s failure to take the stand when the comment is in response to defense counsel’s assertion that defendant was not allowed to explain his side of the story. Also note: In 2013 the Supreme Court held that if a suspect chooses to remain silent before police read him his Miranda rights, that silence can be used against him in court. When a prosecutor impermissibly comments on a defendant’s silence, the harmless error test ap- plies, and thus, the prosecutor’s conduct may not be fatal to an otherwise sound conviction.

Answer 77

1. Under grant of immunity. 2. No possibility of incrimination. Example: If the statute of limitations has run on the underlying crime, you are not entitled to a Fifth Amendment Privilege. 3. Waiver The criminal defendant who takes the witness stand waives the Fifth Amendment privilege as to all legitimate subjects of cross-examination.

Answer 78

The proceedings of grand juries are secret. Defendant has no right to appear and no right to send in witnesses. - No Right to Counsel or Miranda Warnings A witness subpoenaed to testify before a grand jury does not have the right to receive Miranda warnings, and does not have the right to have an attorney present. - No Right to Have Evidence Excluded A grand jury may base its indictment on evidence that would not be admissible at trial.

Answer 79

After Defendant has exhausted her appeals, she may generally still attack her conviction(s) collaterally by beginning a new and separate civil proceeding, known as an application for writ of habeas corpus. This proceeding focuses on the lawfulness of the Defendant’s detention.

Answer 80

1. Government conduct 2. You have to have standing to object to gov search (reasonable expectation of privacy) 3. See if there is a valid search warrant (probable cause and particularity) 4. If warrant invalid, are there good faith exceptions? 5. If no good faith exceptions, are there other exceptions to the warrant requirement?

Answer 81

No. a defendant's refusal to cooperate with an investigation of the criminal conspiracy of which he was a member may properly be considered in imposing sentence. This is because the Fifth Amendment right to remain silent does not afford a privilege to refuse to incriminate others.

Answer 82

Yes. According to United States v. Calandra (1974), illegally seized evidence is admissible in grand jury proceedings. A pretrial motion to suppress is the appropriate vehicle to test the constitutionality of the seizure. The grand jury is not the appropriate forum.

Answer 83

The court should sustain the objection because the police did not honor the woman's request for an attorney. At any time prior to or during a custodial interrogation, the accused may invoke a Miranda (Fifth Amendment) right to counsel. If the accused invokes this right, all questioning must cease until the accused is provided with an attorney or initiates further questioning himself. Thus, the police questioning of the woman about the robbery was improper, and she can have her statements excluded. After receiving Miranda warnings, if an accused invokes the right to remain silent, the police cannot badger the accused. However, courts have ruled that if the police scrupulously honor the request, they can rewarn the accused and later resume questioning, at least about a different crime. Here, however, the accused did not simply invoke the right to remain silent, but rather requested an attorney. After such a request, as indicated above, all questioning must cease.

Answer 84

a defendant is entitled to acquittal if he suffered from a mental disease or defect and as a result lacked substantial capacity to either: (i) appreciate the criminality of his conduct; or (ii) conform his conduct to the requirements of law.

Answer 85

1) the defendant has to take an affirmative act notifying all members of conspiracy of their intent withdraw 2) withdraw must be done in timely fashion so co-conspirators have time to also withdraw

Answer 86

specific intent crimes.

Answer 87

1) the making or altering 2) of a false instrument 3) with intent to defraud

Answer 88

No. grand jury can consider evidence that is not allowed at trial The grand jury is not deciding guilt or innocence -- just determining if there is probable cause to go to trial.

Answer 89

only for impeachment purposes -- so yes.

Answer 90

Preponderance of the evidence.

Answer 91

convictions, acquittals, and when there is prosecutorial misconduct.

Answer 92

Principals are those who, with the requisite mental state, actually engage in the act or omission that causes the criminal result. An accomplice is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the offense. Under modern statutes, accomplices are generally treated as principals. A third category is "an accessory after the fact." An accessory after the fact is one who receives, relieves, comforts, or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. Unlike an accomplice, an accessory after the fact has committed a separate crime with a punishment unrelated to the felony committed.

Answer 93

There was an insufficient agreement for conspiracy liability at common law. Conspiracy consists of: (i) an agreement between two or more persons; (ii) an intent to enter into an agreement; and (iii) an intent to achieve the objective of the agreement. In addition, most states require an act in furtherance of the conspiracy, although an act of mere preparation will usually suffice. The agreement requirement means that the parties must agree to accomplish the same objective by mutual action. There must be a meeting of at least two "guilty minds"; i.e., between two or more persons who are actually committing themselves to the scheme. If one person in a two-party conspiracy is only feigning agreement, the other person cannot be convicted of conspiracy under the common law bilateral approach. Here, the officer, in his undercover capacity, was simply trying to set up a situation in which the burglar would be caught in the act. Thus, the undercover officer merely pretended to reach an agreement with the burglar to commit a burglary. At no time did the undercover officer actually commit himself to the burglary. Therefore, there could have been no agreement of two "guilty minds." Absent the requisite agreement, the burglar cannot be guilty of conspiracy.

Answer 94

a conspirator may limit his liability for subsequent acts of other conspirators by performing an affirmative act that notifies the other members of the conspiracy in time for the other members to have the opportunity to abandon their plans.

Answer 95

The worker should be convicted because he was intoxicated when he damaged the trailer. The worker is being charged with reckless damage to property. A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a prohibited result will follow, and this disregard constitutes a gross deviation from the standard of reasonable care. Attempting to move a large piece of construction equipment while intoxicated should be considered reckless conduct because of the great potential for destruction arising from the size and destructive power of the construction equipment.

Answer 96

In order for the police to search anything or anybody and fall under the automobile exception they must have probable cause***. Note: If -- BUT only if -- before searching anything or anybody the police have probable cause, then they can search the entire car. This includes the entire interior compartment, and the trunk. Moreover, if there is probable cause, the police may open (without a warrant) any package, luggage, or other container which could reasonably contain the item they had probable cause to look for whether that package, luggage, or other container is owned by the passenger or the driver.

Answer 97

The court should sustain the objection because the police did not honor the woman's request for an attorney**. At any time prior to or during a custodial interrogation, the accused may invoke a Miranda (Fifth Amendment) right to counsel. If the accused invokes this right, all questioning must cease until the accused is provided with an attorney or initiates further questioning himself. Thus, the police questioning of the woman about the robbery was improper, and she can have her statements excluded.

Answer 98

Robbery, because he used force in leaving with the purse. Robbery is the taking of personal property of another from the other's person or presence by force or intimidation with the intent to permanently deprive her of it. The force or threats must be used either to gain possession of the property or to retain possession immediately after such possession has been accomplished. Here, the man grabbed the woman's purse off the seat and then pushed the woman out of the way as he ran out of the subway car. He used force to retain possession of the purse immediately after he grabbed it, which satisfies the force requirement. Therefore the man can properly be convicted of robbery.

Answer 99

No, because she did not intend to hit anyone with her car. Although the woman may have been guilty of murder had the pedestrian been killed, it does not necessarily follow that she is guilty of attempted murder when she almost killed the pedestrian. Murder does not require the intent to kill; an awareness of an unjustifiably high risk to human life will suffice. Like all attempt crimes, attempted murder is a specific intent crime. Thus, the intent to kill is required. Because the woman did not intend to kill the pedestrian, she cannot be convicted of attempted murder.