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My MBE MEE > Crim MBE > Flashcards

Crim MBE Flashcards

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1
Q

HOMICIDE

A

Homicide means there is a dead body

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2
Q

Homicide has two types

A

1) Murder OR 2) Manslaughter

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3
Q

Intent to Kill

A

Premeditated Killing • Specific Intent

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4
Q

Intent to Inflict Serious Bodily Harm

A

No Specific Intent to Kill Never infer specific intent to kill

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5
Q

Felony Murder

A

A death occurs while committing a dangerous felony

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6
Q

Dangerous Underlying Felonies

A

Burglary • Arson • Rape • Robbery • Kidnapping

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7
Q

Depraved Heart Murder

A

Reckless disregard for human life

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8
Q

Definition - Recklessness

A

You knew or should have known that a death could occur, and you acted anyway

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9
Q

Voluntary Manslaughter

A

1) Adequate Provocation 2) Heat of Passion 3) No time to cool off

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10
Q

Involuntary Manslaughter

A

Negligent conduct causing a death

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11
Q

INVOLUNTARY MANSLAUGHTER =

A

Negligence, No people present

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12
Q

DEPRAVED HEART MURDER =

A

Recklessness, people present

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13
Q

Murder

A

1) Intent to Kill 2) Intent to Inflict Serious Bodily Harm 3) Felony Murder 4) Depraved Heart

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14
Q

Manslaughter

A

1) Voluntary Manslaughter 2) Involuntary Manslaughter

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15
Q

Larceny

A

1) Trespassory Taking 2) Carrying Away 3) Personal Property of Another 4) With Intent to Permanently Deprive

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16
Q

Burglary

A

1) Breaking & Entering 2) Dwelling of Another 3) At Nighttime 4) With Intent to Commit a Felony

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17
Q

Burglary - Intent

A

Intent must be present at the moment of Breaking • Felony does NOT have to be actually committed

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18
Q

Robbery

A

1) Trespassory Taking 2) Carrying Away 3) Property of Another 4) By Force, Intimidation, or Fear

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19
Q

Assault

A

Intent to commit a Battery • Intent to place another in Imminent Fear • Words are NOT enough

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20
Q

Larceny by Trick

A

Obtain POSSESSION to property by False Statement • Use as the default crime before False Pretense or Embezzlement

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21
Q

False Pretenses

A

Obtain TITLE to property by False Statement

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22
Q

Embezzlement

A

1) Lawful Possession of Personal Property 2) Converted for own use

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23
Q

Receiving Stolen Property

A

1) Physical Possession of Stolen Property 2) Knowledge it was Stolen 3) Intent to keep

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24
Q

Forgery

A

1) Fraudulent making of a False Document 2) With Legal Significance 3) Intended Wrongful Use

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25
Q

Accomplice Liability

A

1) Specific Intent to achieve the crime 2) Aid or Abet the completion of the crime

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26
Q

Crimes Accomplice is Guilty of

A

ALL underlying crimes completed • If the crime isn’t completed, only guilty of accomplice liability

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27
Q

Accessory Before the Fact

A

Not present at scene of crime

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28
Q

Accessory After the Fact

A

1) Felony Completed 2) Knowledge of Completed Crime 3) Aid to avoid Arrest/Conviction

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29
Q

GENERAL INTENT CRIMES

A

No Specific Intent required 2) The Act itself is enough

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30
Q

Battery

A

Unlawful application of Force

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31
Q

Arson

A

Malicious Burning of the Dwelling of Another • Malicious = Reckless

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32
Q

Definition - Reckless

A

Knew or should have known the harm could occur

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33
Q

Rape

A

1) Unlawful Sexual Intercourse 2) By a Male with a Female 3) Without Consent

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34
Q

Kidnapping

A

Unlawful Restraint of a Person’s Freedom by Force

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35
Q

INCHOATE CRIMES

A

1) Attempt 2) Conspiracy 3) Solicitation

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36
Q

Attempt

A

1) Intent to commit the crime 2) Overt Act or Substantial Step

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37
Q

Attempt - Merger

A

MERGES into completed crime • Cannot be guilty of both attempt & the underlying completed crime

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38
Q

Attempt - Withdrawal

A

CANNOT withdraw after a Substantial Step

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39
Q

Common Law Conspiracy

A

1) Two or more people 2) Specific Intent to commit crime 3) Agreement

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40
Q

MPC - Unilateral Conspiracy

A

Only ONE person has to agree Apply Common Law unless the facts tell you otherwise

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41
Q

Co-Conspirator Liability

A

A co-conspirator is liable for all crimes committed in furtherance of conspiracy

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42
Q

Conspiracy - Merger

A

Does NOT MERGE into the completed crime • Guilty of both conspiracy & underlying crime

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43
Q

Conspiracy - Withdrawal

A

CANNOT withdraw from the conspiracy • CAN withdraw from other crimes committed in furtherance on the conspiracy by timely notice to co-conspirators

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44
Q

Solicitation

A

Encourage, Urge, or Incite another to commit a crime

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45
Q

Solicitation - Merger

A

MERGES into completed crime • Cannot be guilty of both solicitation & the underlying completed crime

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46
Q

Solicitation - Withdrawal

A

CANNOT withdraw

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47
Q

M’Naghten Test

A

Mental Disease • Cannot appreciate “Nature & Quality” of actions • Cannot understand what you are doing is wrong

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48
Q

Model Penal Code Insanity

A

Defendant lacked “Substantial Capacity” to appreciate criminal conduct

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49
Q

Voluntary Intoxication

A

Voluntarily getting drunk • Defense to Specific Intent Crimes

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50
Q

Involuntary Intoxication

A

Intoxication without knowledge/consent • Defense to ALL crimes

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51
Q

Mistake - Specific Intent Crime

A

Reasonable AND Unreasonable Mistake are defenses The mistake must negate the element of intent

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52
Q

Mistake - General Intent Crime

A

Reasonable Mistake ONLY is a defense

53
Q

Impossibility

A

The question will rarely use the term “impossibility”

54
Q

Legal Impossibility

A

ALWAYS a defense • Elements of the crime were not met

55
Q

Factual Impossibility

A

NEVER a defense • Elements of the crime were met

56
Q

Entrapment

A

1) Law Enforcement creates criminal activity 2) Defendant not predisposed to commit crime

57
Q

Definition - Predisposition

A

no prior experience or knowledge

58
Q

Duress

A

Reasonable Belief of threat of great bodily harm or death

59
Q

Exception - Duress

A

NEVER a defense to Murder

60
Q

Self-Defense

A

1) Reasonable Belief of imminent danger or bodily harm 2) Return the same Level of Force 3) Deadly Force only allowed for Deadly Force

61
Q

Defense of Others

A

1) Reasonable Belief a third party is in imminent danger 2) Return the same Level of Force

62
Q

Defense of Property

A

1) Reasonable Force to defend property 2) Never Deadly Force unless fear of being killed

63
Q

Government Action Requirement Search & Seizure

A

must be made by a government agent or at the direction of the government

64
Q

Searches - Definition

A

A government search of a location with a reasonable expectation of privacy

65
Q

Open Fields Doctrine

A

Open areas with no expectation of privacy • Not a search

66
Q

Definition - Probable Cause

A

A reasonable person would conclude it is more probable than not that a crime has taken place

67
Q

Definition - Warrant Requirement

A

Generally, searches must be pursuant to a warrant

68
Q

Elements of a Warrant

A

1) Issued by detached magistrate 2) Facts must be fresh 3) Persons/Places must be specific 4) Cannot exceed the scope Typically police must “Knock and Announce” but a search will still be valid if they have a warrant

69
Q

Informants

A

Police can rely on informants for probable cause • To find if an informant is reliable, look to the totality of the circumstances

70
Q

Plain View

A

Police can seize what is in plain view during a lawful search

71
Q

Illegal Search

A

Will NOT automatically dismiss indictment

72
Q

Protective Sweep

A

Search for additional criminals • Allowed for safety with proof of others present

73
Q

Consent

A

One who has control/apparent authority over the property

74
Q

Co-occupant Consent

A

A present co-occupant can refuse • A non-present co-occupant cannot refuse

75
Q

Search Incident to Lawful Arrest

A

1) Arrest must be lawful 2) Search of person/wingspan

76
Q

Arrest of a Car Occupant

A

Police may search passenger compartment IF: 1) Occupant is unsecured 2) Reasonable belief of evidence of CRIME OF ARREST

77
Q

Inventory Search

A

After arrest at the police station, police can search the person/car

78
Q

Exigent Circumstances

A

Reasonable belief evidence may be lost or destroyed • Exception to the Warrant Rule

79
Q

Illegal Automobile Stop - No Traffic Violation

A

If there was no reason to pull the car over, nothing found is admissible

80
Q

Legal Automobile Stop - Traffic Violation

A

Police cannot search the car • Unless some evidence of other crimes During a stop for a traffic violation, police cannot search the car, glove box, or trunk unless there is evidence of another crime

81
Q

Automobile Stop - Probable Cause

A

Police may search entire car if probable cause the car is carrying contraband

82
Q

Border Search

A

No warrant necessary

83
Q

Search Outside United States

A

US officials may search you on foreign land

84
Q

Dog Sniff

A

NOT a search in a public place

85
Q

Terry STOP

A

Reasonable suspicion criminal activity is afoot

86
Q

Terry FRISK

A

Reasonable belief person is armed & dangerous

87
Q

Automobile Checkpoints

A

Checkpoints allowed with generic, uniform method for stop

88
Q

Miranda Elements

A

1) Custody 2) Interrogation

89
Q

Definition - Custody

A

Reasonable person would not feel free to leave You don’t need to be handcuffed to be in custody

90
Q

Definition - Interrogation

A

Police attempting to a elicit criminal response The police do not need to give Miranda warnings immediately

91
Q

Volunteered Statements

A

No Miranda required if suspect volunteers information

92
Q

Miranda Warnings

A

1) Right to remain silent 2) Anything said can be used against you 3) Right to an attorney 4) If you cannot afford one, one will be provided

93
Q

Invoking Right to Counsel

A

If you request a lawyer, all questioning must STOP

94
Q

Waiver of Miranda Rights

A

Knowingly & Voluntary • Totality of Circumstances

95
Q

Right Against Self-Incrimination

A

Never required to testify • May be required to perform physical acts • Cannot be forced to make statements

96
Q

Lineups & IDs

A

Cannot be unnecessarily suggestive • Totality of Circumstances

97
Q

Lineups Right to Counsel

A

NO right to counsel PRIOR to Indictment • Right to counsel AFTER Indictment

98
Q

Foundation for Counsel Rights

A

Fifth Amendment Right BEFORE charges or Indictment • Sixth Amendment Right AFTER formal charges

99
Q

Right to Effective Counsel

A

1) Did lawyer deviate from the norms 2) Reasonable probability the outcome would have been different

100
Q

Waiver of Right to Counsel

A

Must Knowingly waive

101
Q

Timing Right to Counsel

A

Defendant has a right to Counsel at all CRITICAL STAGES of prosecution

102
Q

Critical Stages - Right to Counsel

A

Post-indictment Interrogation • Preliminary Hearings for probable cause to prosecute • Arraignment • Post-charge Lineups • Guilty Pleas & Sentencing • Felony Trials • Misdemeanor Trials with imposed imprisonment • Overnight Recesses during trial • Appeals as a Matter of Right • Appeals of Guilty Pleas • Pleas of Nolo Contendere

103
Q

No Right to Counsel

A

Blood Sampling • Handwriting or Voice samples • Pre-charge/ Investigative Lineups • Photo IDs • Preliminary Hearings for probable cause to detain • Brief Recess during defendant’s testimony • Discretionary Appeals • Parole & Probation Revocation Proceedings • Post-Conviction Proceedings

104
Q

Shared Counsel

A

Co-defendants can share counsel unless conflict arises

105
Q

Undercover Officer in Jail Cell

A

Violates Right to Counsel • Not Miranda

106
Q

Guilty Plea

A

Entered Voluntarily & Intelligently

107
Q

Severance

A

If two defendants are tried together, one can sever for Unfair Prejudice

108
Q

Impartiality

A

Right to UNBIASED Judge

109
Q

Competency

A

Defendant must be competent to understand charges • Defendant may be medicated

110
Q

Jury Trial Rights

A

Sentence is longer than 6 months • Jury is a cross-section of community • State trial by 6 members must be unanimous • State trial by 12 members need not be unanimous • Federal trial by 12 members must be unanimous • Exclusion of a juror based on race/gender violates Equal Protection

111
Q

Right to Public Trial

A

Press may attend UNLESS overriding interest to close trial • Does not apply to Grand Jury

112
Q

Right of Confrontation

A

Right to confront & cross-examine all witnesses

113
Q

Co-defendant Confessions

A

A co-defendant’s confession can only be used against the other if available to testify

114
Q

Right to Confront Out-of-Court Statements

A

Testimonial Statements are inadmissible • Non-testimonial Statements are admissible

115
Q

Definition - Non-Testimonial Statements

A

Made during an emergency

116
Q

Prosecution’s Burden

A

Must prove all elements BEYOND A REASONABLE DOUBT

117
Q

Defendant’s Burden

A

Must prove a defense by PREPONDERANCE OF THE EVIDENCE

118
Q

Presumptions

A

NO Mandatory Presumptions in criminal cases • Violates Due Process During jury instructions, elements of a crime must be proven by the prosecution & elements of a defense must be proven by the defendant

119
Q

Grand Jury

A

Accused has no right to be present • Exclusionary Rule does NOT apply • Witness has NO Right to Counsel INSIDE the room

120
Q

Double Jeopardy

A

Cannot be tried for the same crime twice • Does not apply to anything BEFORE first trial

121
Q

Jeopardy Attaches

A

Jury Trial: Jury is sworn in • Bench Trial: First witness is sworn in

122
Q

Trial by a Separate Sovereign

A

Can be tried in DIFFERENT states • Can be tried in State AND Federal Court

123
Q

Retrial Permitted

A

Defendant’s successful appeal • Mistrial for Necessity

124
Q

Collateral Estoppel

A

No retrial allowed if the second trial requires an element defendant was previously acquitted of

125
Q

Cruel & Unusual Punishment

A

Must be proportionate to crime • Consistent with punishment for similar crimes

126
Q

Rights During Sentencing

A

Right to Counsel • Right to Remain Silent

127
Q

Death Penalty

A

Not cruel & unusual as long as Procedural Safeguards • Prevent arbitrary or discriminatory sentencing

128
Q

Death Penalty Exceptions

A

Under 18 at time of crime • Mentally challenged

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