Crim Pro/Crim

Question 1

Fourth Amendment/Search and Seizure

Answer 1

The fourth amendment protects citizens against unreasonable searches and seizures.

1. For the defendant to assert a 4th Amendment challenge he must (i) demonstrate a reasonable expectation of privacy; and (ii) he must demonstrate he had at least an ownership interest or a possessory interest in the place searched or items seized.
2. A search and seizure are valid only if the government acted pursuant to a valid warrant, if the warrant is not valid, or not present, all evidence is inadmissible unless an exception to the warrant requirement applies.

Question 2

Warrantless Search in a Place/Property

Answer 2

1. A warrantless search is valid if the police have voluntary consent to search;
2. Any person with an apparent equal right to use or occupy the property may consent to a search;
3. Any evidence found may be used against the other owners or occupants;
4. Knowledge of the right to withhold consent is NOT required
5. The scope of the search is limited by the scope of the consent.

Question 3

5th Amendment/Miranda

Answer 3

The Fifth Amendment guarantees a freedom against compelled self-incrimination.

Police officers must inform detainees of (i) their rights via Miranda warnings before conducting a custodial interrogation; (ii) statements obtained as a result of a custodial interrogation without Miranda warnings generally are inadmissible.

A confession obtained in violation of Miranda, but that is otherwise voluntary, may be used to impeach the Defendant’s testimony if he takes the stand at trial. (If the confession was spontaneous and not in response to interrogation, it is admissible).

Question 4

When in Custody

Answer 4

A suspect is in custody when

(i) he is placed in a situation where a reasonable person would not feel free to leave;
(ii) the ‘freedom of movement’ test applies to determine whether the person’s freedom of action is limited in a significant way; and
(iii) the environment presents the same inherently coercive pressure as would a stationhouse arrest

Question 5

Interrogation

Answer 5

Interrogation (i) refers not only to express questioning, but also to any words or actions on the part of the police officers designed to elicit an incriminating response; (ii) Miranda does not apply to SPONTANEOUS statements not made in response to an interrogation.

Question 6

Sixth Amendment/Right to Confront Witnesses

Answer 6

The 6th Amendment grants defendants the right to confront witnesses.

When two defendants are tried together and one has given a confession that implicates the other, the right of confrontation prohibits the use of that statement unless:

(i) all portions referring to the other defendant can be eliminated;
(ii) the confessing D takes the stand and subjects himself to cross-examination; or
(iii) the non-testifying D’s confession is being used to rebut the defendant (who is on trial) claim that D’s confession was obtained coercively.

Question 7

Sixth Amendment/Right to Counsel

Answer 7

A suspect has a Sixth Amendment right to be represented by counsel at all critical stages of criminal prosecution after formal proceedings have begun. The right is violated where:

1. The police deliberately elicit an incriminating statement from a defendant without first obtaining a waiver; and
2. Absent a waiver, the right is violated when an undisclosed, paid government informant is placed in the defendant’s cell, after the defendant has been indicted, and deliberately elicits statements from the defendant regarding the crime.

Question 8

Murder

Answer 8

Murder is the unlawful killing of another human being with malice aforethought.

Malice can be shown by any one of the following: (i) intent to kill, (ii) intent to commit great bodily injury; (iii) reckless indifference to an unjustifiable high risk to human life, or (iv) intent to commit a felony.

Further, D’s act must proximately cause the victims death.

Question 9

Self-Defense

Answer 9

An intentional killing committed in self-defense is justified. To act in self defense the Defendant must:

1. Be without fault;
2. Be confronted with unlawful force; and
3. Reasonably believe that he is threatened with imminent death or great bodily harm.

Question 10

First Degree Murder

Answer 10

1. First Degree Murder: Is murder done with premeditation and deliberation.

Question 11

Voluntary Manslaughter

Answer 11

Voluntary manslaughter is a killing that would otherwise be murder, but that is distinguishable from murder by the existence of adequate provocation (heat of passion killing). To apply:

1. The provocation must be sufficient to arouse the sudden and intense passion in the mind of an ordinary person such that he would lose any self control;
2. The person must in fact be provoked; and
3. There must not be sufficient time for the person to cool off.

Question 12

Solicitation

Answer 12

Solicitation requires:

1. Inciting, counseling, advising, urging, or commanding another to commit a crime, with the specific intent that the person solicited commit the crime;
2. It is not necessary that the person solicited actually commit the crime; and
3. The solicitor cannot be punished for both the solicitation and the targeted offense.

Question 13

Conspiracy

Answer 13

A conspiracy is an agreement between two or more persons to accomplish some criminal or unlawful purpose, or to accomplish a lawful purpose by unlawful means.

Conspiracy requires:

(i) an agreement between two or more persons,
(ii) an intent to enter into the agreement
(iii) an intent by at least two persons to achieve the objective of the agreement; and
(iv) an overt act in furtherance of the conspiracy.

No express agreement required, it may be inferred from the joint activity of the parties.

Question 14

Burglary

Answer 14

Burglary is the:

1. Breaking and entering
2. Of the dwelling of another
3. At nighttime
4. With the intent to commit a felony therein.

Question 15

Larceny

Answer 15

Larceny is:

1. The trespassory taking and carrying away of tangible personal property;
2. Of another;
3. With intent to permanently deprive the person of his interest in the property;
4. A taking is trespassory if it is done without consent.

Question 16

Robbery

Answer 16

Robbery is:

1. Taking of personal property;
2. Of another;
3. From the other’s person or presence;
4. By force or intimidation;
5. With intent to permanently deprive them of the property.

Question 17

Battery

Answer 17

1. Intentional and unlawful application of force;
2. To the person of another
3. Resulting in either bodily injury or OFFENSIVE touching.

Question 18

Co-Conspirator Liability

Answer 18

1. A conspirator may be held liable for crimes committed by a co-conspirator if the crimes were committed in furtherance of the objectives of the conspiracy and were foreseeable;
2. If there is a conspiracy between A and B, B may be liable for all of A’s crimes if they were in furtherance of the conspiracy and foreseeable.

Question 19

Accomplice Liability

Answer 19

1. A person will be liable as an accomplice if he acts with the intent to aid, counsel, or encourage the principal to commit illegal conduct;
2. An accomplice is responsible for the crimes he committed or counseled and for any other crimes committed in the course of committing the contemplated crime that were probable and foreseeable.

Question 20

Accessory After the Fact

Answer 20

An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he committed a FELONY, to help the felon escape arrest, trial, or conviction.

Question 21

Receipt of Stolen Property

Answer 21

1. Showing that the defendant received possession and control of stolen property;
2. Known to have been obtained in a manner constituting a criminal offense by another person.
3. With the intent to permanently deprive the owner of her interest in it.

Question 22

Exclusionary Rule

Answer 22

1. Under the exclusionary rule, evidence obtained in violation of a D’s constitutional rights is generally inadmissible at trial;
2. Under the fruit of the poisonous tree doctrine, evidence derived from unconstitutionally obtained evidence will also be suppressed (subject to certain exceptions); and
3. Suppression is not required if the taint of the unconstitutional action can be attenuated.

Exceptions:

1. Inventory search pursuant to established procedure after being booked;
2. If they can show that the evidence would have been discovered whether or not the police acted unconstitutionally;
3. If the evidence is obtained from a source independent of the original illegality, the evidence will be admissible.

Question 23

Valid Roadblock

Answer 23

1. Stop cares on basis of some neutral articulable standard; and
2. Be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.

May not set up a checkpoint to check for illegal drugs because the purpose is unrelated to the use of cars.

Question 24

Guilty Plea

Answer 24

1. Prior to accepting a guilty plea, the judge must determine that the plea is voluntarily and intelligent;
2. This must be done by addressing the defendant personally in open court.

Question 25

Guilty Plea: D Must Understand What

Answer 25

Judge must ensure D understands:

1. Nature of the charge and crucial elements of the crime charged;
2. That maximum possible sentence; and
3. That the defendant has the right to plead not guilty, but waives his right to a jury trial if he does plead guilty.

The remedy for failure to meet the standards is withdrawal of plea and pleading anew.

Question 26

Kidnapping

Answer 26

The unlawful confinement of a person that involves either (i) some movement of the victim; or (ii) concealment of the victim in a secret place.

Question 27

Attempt: Definition

Answer 27

1. Attempt is an act done with intent to commit a crime that falls short of completion of the crime.
2. Attempt requires specific intent to commit the target offense; and
3. An overt act in furtherance of that intent.

Question 28

Attempt: Additional Rules

Answer 28

1. The D must have committed an act beyond mere preparation of the offense;
2. The traditional rule follows the proximity test that requires it be dangerously close to success;
3. Whereas the majority of states now follow the test similar to the MPC which requires just a substantial step.

Question 29

Search Incident to a Lawful Arrest

Answer 29

1. Police can search person and areas into which a person might obtain weapons or destroy evidence.
2. Automobile passenger compartments may be searched if arrestee is UNSECURED and may still gain access, OR if police reasonably believe evidence for the arrest may be found in the vehicle.
3. Inventory search of arrestee’s belonging or of impounded vehicle is permissible.

Question 30

Stop and Frisk (Terry Stop)

Answer 30

What is needed:

1. For the Stop: Permissible without probable cause if officer has REASONABLE SUSPICION based on ARTICULABLE FACTS that criminal activity is afoot.
2. For the Frisk: Officer can pat down outer clothing if officer has reason to believe that the detainee is ARMED AND DANGEROUS.

Question 31

Plain View

Answer 31

Where police are legitimately on the premises they may discover evidence, fruits, or instrumentalities of crime if such evidence is in plain view and have probable cause to believe the item is related to a crime.

Question 32

Automobile Search Exception

Answer 32

1. Under the automobile search exception, if the police have probable cause to believe that a vehicle contains evidence of a crime;
2. They may search the whole vehicle and any container that might reasonable contain the item.

Question 33

Exigent Circumstances

Answer 33

Allows warrantless search when in hot pursuit, when dealing with evanescent evidence, and emergencies affecting health or safety.

Question 34

Routine Traffic Stop

Answer 34

1. A routine traffic stop is temporary and brief, so the motorist generally should not feel unduly coerced such that they need to be mirandized.
2. Miranda need not normally be given during a traffic stop.

Question 35

Embezzlement

Answer 35

Embezzlement is:

1. The fraudulent conversion of the personal property of another;
2. By a person in lawful possession of that property.

Question 36

Second Degree Murder

Answer 36

Second Degree Murder requires that the Defendant act with malice. Malice be inferred by: (i) an intent to kill; (ii) an intent to inflict great bodily injury; (iii) reckless indifference to an unjustifiably high risk to human life; or (iv) intent to commit a felony.

Question 37

Felony Murder

Answer 37

1. If killing occurs during an inherently dangerous felony, then the killer may be liable for 1st degree murder.
2. Regardless of whether it is first degree or not, the felony must be independent of the killing and the death must be foreseeable.

Question 38

M’Naghten Rule

Answer 38

Under the M’Naghten rule the D is entitled to acquittal if a disease of the mind caused a defect of reason such that the D lacked the ability at the time of his actions to either know the wrongfulness of his actions or understand the nature and quality of his actions.

Question 39

Irresistible Impulse Test

Answer 39

Under the IIT a D is entitled to acquittal only if because of his mental illness he was unable to control his actions or to conform his conduct to the law.

Question 40

Durham Test

Answer 40

Under the Durham test, a D is entitled to acquittal if the crime was the product of mental illness, and would not have been committed but for the disease.

Question 41

MPC Insanity

Answer 41

Must have lacked substantial capacity to either: (i) appreciate criminality of conduct; or (ii) conform conduct to the requirements of the law.

Question 42

Probable Cause/Warrant

Answer 42

1. Probable cause requires sufficient facts that would lead a reasonable officer to believe that the commission of a crime was probably happening or has happened.
2. The officer can use their own personal knowledge, lawfully obtained evidence, and the evidence of a reliable and verifiable informant to have grounds for probable cause. Facts alone may not be enough, but taken together, can lead to probable cause.
3. However, an officer may rely on a warrant if a reasonable officer would not find that there is no reasonable belief, but that there is probable cause. An officer may not rely on this exception if they acted in bad faith.