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Barbri > Crim (Pro & Reg) > Flashcards

Crim (Pro & Reg) Flashcards

1
Q

Larceny

A

A taking and carrying away (asportation) of tangible personal property of another by trespass with intent to permanently or for an unreasonable time deprive the person of his interest in his property. The carrying only needs to be so slight. Changing your mind after the fact does not negate larceny.

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2
Q

False Pretenses

A

Obtaining title to the property of another by an intentional or knowing false statement of past or existing fact with the intent to defraud another

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3
Q

Embezzlement

A

The fraudulent conversion of personal property of another by a person who is in lawful possession of the property. If there was an intent to restore the exact property taken it isn’t embezzlement. (must be the same exact $$)

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4
Q

Larceny by Trick

A

A taking and carrying away (asportation) of tangible personal property of another by misrepresentation of a past or existing fact with intent to permanently or for an unreasonable time deprive the person of his interest in his property.

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5
Q

First Degree Murder

A

When it can be shown that killing occurred during an enumerated felony or there was deliberation and premeditation

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6
Q

Felony Murder

A

The defendant committed or attempted to commit a felony, it must take place while a felony is being executed, the felony must be independent of the killing and death must be a foreseeable result of the felony.

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7
Q

Voluntary Manslaughter

A

(i) the provocation must have been one that would arouse the sudden and intense passion in the mind of an ordinary person such as to cause him to lose self-control; (ii) the defendant must have in fact been provoked; (iii) there must not have been sufficient time to cool off; and (iv) the defendant did not in fact cool off.

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8
Q

Involuntary Manslaughter

A

There are two types of involuntary manslaughter: criminal negligence and unlawful act.
Criminal negligence: death is caused by criminal negligence. This is when the standard of care exercise is a substantial deviation from the one a reasonable person would use. Some states look a recklessness instead of negligence. This would be acting where they had a subjective awareness of the high risk of death.

Unlawful Act: Death is caused by the defendant’s commission of an unlawful act.

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9
Q

Common Law Murder

A

The unlawful killing of a human with malice aforethought

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10
Q

Malice Aforethought

A

Use for common law murder. Malice can be found when there was an intent to kill, the intent to inflict great bodily injury, a depraved heart (a reckless indifference to human life), or the intent to commit a felony.

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11
Q

When does a seizure occur?

A

Evaluate the totality of the circumstances. When a reasonable person doesn’t feel free to leave and there is a physical application of force or submission to show force

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12
Q

Where does a person have standing?

A

Things they own, their home, overnight guest, curtilage

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13
Q

What can be searched and seized with a search warrant?

A

Must describe with reasonable precision the place to be searched and the items to be seized. Items relating to the fruit of the crime can be seized if not listed.

A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant. However, if the police have probable cause to arrest a person discovered on the premises to be searched, they may conduct a warrantless search of her incident to the arrest. If a person is not named in the warrant and circumstances justifying an arrest of that person do not exist, the police may search her for the objects named in the search warrant only if they have probable cause to believe that she has the named objects on her person.

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14
Q

What is a search warrant based on?

A

Probable cause. A warrant must be based on a showing of probable cause. Along with a request for a warrant, a police officer must submit to a magistrate an affidavit setting forth sufficient underlying circumstances to enable the magistrate to make a determination of probable cause independent of the officer’s conclusions. The affidavit may be based on an informer’s statements. The sufficiency of the affidavit is evaluated according to the “totality of the circumstances.” There must be sufficient information for the magistrate to be able to make a common sense evaluation of probable cause. Among the factors determinative of probable cause are the informer’s reliability, credibility, and basis of knowledge.

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15
Q

Warrant Exceptions

A
  1. SITA
  2. Automobile Exception
  3. Plain View
  4. Consent
  5. Stop and Frisk
  6. Hot Pursuit
  7. Evanescent Evidence
  8. Emergency Aid/Community Caretaker
  9. Inventory Searches
  10. Public School Searches
  11. Mandatory Drug Testing
  12. Border Searches
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16
Q

What kind of search is a dog sniff?

A

Binary Search

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17
Q

Plain View Warrant Exception

A

Police must be lawfully on the premises, the item must be related to the crime or contraband, it must be in plain view, officers can’t manipulate items to find it

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18
Q

SITA Automobile Warrant Exception

A

police can SITA when the arrestee is unsecured and still can gain access to the interior of the car or the police reasonably believe that evidence of the offense can be found in the vehicle

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19
Q

Attempt of a Crime

A
  1. Whether they had the specific intent for the crime
  2. Whether they took a step toward completing that crime (substantial step or proximity test)
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20
Q

Substantial Step Test

A

To determine if someone attempted a crime, one must takes steps more than mere preparation.

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21
Q

Proximity Test

A

To determine if someone attempted a crime, they must have taken steps to be dangerously close to committing the crime

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22
Q

When do the 5th A. Miranda Warnings apply?

A

Custodial interrogations by the police or one known to be an agent of the police (does not apply when ones is an unknown agent).

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23
Q

Miranda Warnings

A

You have the right to remain silent, anything you say can be used against you in the court of law, you have the right to an attorney, if you can’t afford one one will be appointed to you. (THIS JUST HAS TO BE CLOSE DOESN’T HAVE TO BE WORD FOR WORD)

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24
Q

Interrogation

A

Any police action that officers should know is likely to elicit an incriminating response.

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25
Q

When to give the 5th A. Miranda Warnings?

A

When the D is in custody and being interrogated. Custody is an arrest not just being pulled over.

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26
Q

Custody

A

A person is in custody when a reasonable person under the circumstances would not feel he was free to terminate the interrogation and leave and whether the relevant environment presets coercive pressures similar to those of an interrogation.

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27
Q

6th A. Right to convert adverse witnesses

A

A d in a criminal prosecution has the right to confront adverse witnesses at trial. If two persons are tried together and one has given a confession that implicates the other, the right of confrontation generally prohibits the use of that statement because the other defendant cannot compel the confessing co-defendant to take the stand for cross-examination. A co-defendant’s confession is inadmissible even when it interlocks with the defendant’s own confession, which is admitted.

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28
Q

Confessions that implicate co-defendants

A

The confession will not be used because you can’t force the other D to take the stand and cross-examine them

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29
Q

When are confessions obtained without Miranda Warnings allowed?

A

When they are obtained voluntarily and under a good faith mistake (such as one officer thinking another officer gave the already), however, these can only be used for impeachment purposes not for matters of law.

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30
Q

How many jurors are required under the 6th and 14th A?

A

6, cannot be less!! There is a right of up to 12. Their verdicts must be unanimous

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31
Q

When does someone have a constitutional right to a jury trial?

A

When their crimes amount to a serious crime (one that calls for more than 6 months in prison).

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32
Q

Determination of the Right to a Speedy Trial

A
  1. Length of Delay
  2. Reason for Delay
  3. Whether the D asserted his right
  4. Prejudice to the Defendant
    The remedy is dismissal with prejudice. There is no speedy trial relief for the period between the dismissal of charges and later refiling. Attaches when defendant has been arrested or charged.
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33
Q

6th A. Right to Counsel

A

Applies only after adversary judicial proceedings have begun

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34
Q

Can remaining silent be used against you?

A

NO, 5th A protects that except that it does not protect remaining silent to protect others from incrimination.

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35
Q

Burglary

A

Break and enter into a dwelling at night with the SPECIFIC INTENT to commit a felony. Intent to commit a felony must be at the time of entrance not after entrance.

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36
Q

Double Jeopardy

A

Under the 5th A, no person shall be twice put in jeopardy for the same offense. Attaches when the jury is empaneled and sworn. Once it attaches a defendant can not be retried for the same offense. Can’t retry a D whose conviction has been reversed on appeal for any offense more serious than that for which she was convicted in the first trial. 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. While this protection does not apply to trials by separate sovereigns, the two counties enforcing state law are not separate sovereigns

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37
Q

Robbery

A

The taking of the personal property of another from the other person or presence by force or intimidation with the intent to permanently deprive him of it

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38
Q

When is an act involuntary?

A
  1. Not the persons own volition
  2. Person is unconscious
  3. It was a reflexive or convulsive act
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39
Q

Omission to help as a Criminal Act

A

Must be a duty to act, there is no good samaritan law

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40
Q

Specific Intent Crimes
Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts

A

Solicitation
Conspiracy
Assault
First degree premeditated Murder
Attempt
Larceny
Embezzlement
False Pretenses
Robbery
Burglary
Forgery

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41
Q

General Intent Crimes

A

Battery
Rape
Kid Napping
False Imprisonment

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42
Q

Malice Crimes

A

Common Law Murder
Arson

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43
Q

Strict Liability Crimes

A

Statutory Rape
Selling Liquor to Minors
Bigamy

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44
Q

Mens Rea Common Law

A

Specific Intent
General Intent
Malice
Strict Liability

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45
Q

Specific Intent

A

Intent to engage in the proscribed conduct. This can’t be inferred from just doing the act.

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46
Q

General Intent

A

Awareness of acting in a proscribed manner. This can be inferred from doing the act.

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47
Q

Malice

A

Reckless disregard of a known risk. This only applies to arson and common law murder

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48
Q

Strict Liability

A

Conscious commission of a proscribed act

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49
Q

Mens Rea MPC

A

Recklessly
Knowingly
Negligently
Purposely

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50
Q

Recklessly

A

consciously disregarding a substantial and unjustifiable risk that’s constitutes a gross deviation from standard of care

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51
Q

Knowingly

A

Awareness that conduct of a particular nature will necessarily or very likely cause a particular result. Can’t avoid learning the truth.

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52
Q

Negligently

A

Failure to be aware of a substantial and unjustifiable risk. Use an objective standard.

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53
Q

Purposely

A

Conscious object to engage in an act or cause a certain result

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54
Q

Transferred intent

A

Intend to cause harm to one person but mess up and do it to another. Usually guiltily of the crime against victim and the attempted crime against the other victim.

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55
Q

principal of a crime

A

the person who commits the crime or who causes an innocent agent to do so. Principal is liable for crime

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56
Q

Accomplice

A

Also accessory before the fact in the common law. The person who aids or encourages the principal to commit an illegal act. Liable for a crime if intended to help. This person must be intentionally aiding, counseling, or encouraging the crime. Mere presence is not enough. If the crime is recklessness or negligence attempt the accomplice must intend to facilitate the commission and act with the same intent. The mere knowledge that a crime would result from the aid provided is generally insufficient for accomplice liability.

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57
Q

accessory after the fact

A

a person who receives, relieves comforts, or aids another to escape, knowing that he has committed a felony in order to help them escape arrest, trial, or conviction. The crime by the principal must have been completed with the aid rendered. This is a separate crime from the one that was committed.

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58
Q

Inchoate Offenses

A

Conspiracy
Solicitation
Attempt

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59
Q

Two parts of a crime

A

mens rea and actus reas

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60
Q

What liability for an accomplice?

A

The crime and all other foreseeable crimes

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61
Q

Defenses to Accomplice

A

Withdrawl if they repudiated encouragement, naturalized assistance, OR notified the police or acted to prevent the crime

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62
Q

Solicitation

A

Asking someone to commit a crime with the intent that the crime be committed. Solicitation consists of inciting, advising, or inducing another to commit a crime with the specific intent that the person solicited commit the crime.

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63
Q

Defenses to Solicitation

A

THe refusal or the legal incapacity of the solicited is no defense, if the legislative intent of a statute is to exempt the solicitor that is the only defense.

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64
Q

Conspiracy

A

An agreement with an intent to agree and to achieve the objective of the agreement and an overt act. There is no merger of conspiracy like with attempt and solicitation, you can be charged for the crime committed and for conspiracy.

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65
Q

Liability for Conspiracy

A

All crimes of the other conspirators if foreseeable and in furtherance of the conspiracy

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66
Q

Defenses to Conspiracy

A

Withdrawal. No factual impossibility defense.

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67
Q

Withdrawal of Conspiracy General Rule

A

Can only withdraw from liability for future crimes. There is no withdrawal from conspiracy possible because an agreement coupled with an act completes the crime of conspiracy

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68
Q

Withdrawal of Conspiracy MPC

A

There can be voluntary withdrawal if D informs the police

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69
Q

Defenses to Attempt

A

No factual impossibility defenses, Legal impossibility is a defense, and no abandonment after substantial steps.

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70
Q

Factual Impossibility

A

When D sets out to do an illegal act, but can’t complete the act due to some unknown reason

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71
Q

Legal Impossibility

A

When D sets out to do a legal act that he thinks is illegal

72
Q

Abandonment

A

Must be before any substantial steps, must be fully voluntary, and complete (can’t be postponement because of unfavorable circumstances)

73
Q

Overt Act Conspiracy

A

most states require an overt act in furtherance of the conspiracy, although an act of mere preparation will usually suffice.

74
Q

Insanity Defense Types

A

M’Naughten Test
Irresistible Impulse Test
Durham Test
MPC Test

75
Q

M’Naghten Insanity Test

A

There is a disease of the mind that causes a defect of the reason so the defendant lacked the ability at the time of his action to know wrongfulness or understand the nature and quality of his actions

76
Q

Irresistible Impulse Insanity Test

A

D is unable to control actions or conform conduct to the law

77
Q

Durham Insanity Test

A

The crime was a product of mental disease or defect

78
Q

MPC Insanity Test

A

The defendant can’t appreciate the criminality of his conduct or conform his conduct to the requirements of law.

79
Q

Intoxication Defense

A

Voluntary intoxication is a defense if it negates specific intent, can be used to negate 1st degree murder in some states when divided murders into degrees.
Involuntary intoxication is a defense and it is analyzed under the insanity tests

80
Q

Self Defense Nondeadly Force

A

A person may use NDF is she reasonable belives NDF is about to be used on her

81
Q

Self Defense Deadly Force

A

A person may use DF when they are without fault, confronted with unlawful action that is reasonably believed to be threatened with imminent death or great bodily harm.

82
Q

Majority Rule Retrating with Self Defense

A

There is no duty to retreat with non deadly force or with deadly force

83
Q

Minority Rule Retrating with Self Defense

A

There is no duty to retreat with NDF but there is a duty to retreat when using deadly for except for when it can’t be safely done or if you at your own house

84
Q

Infancy Defense

A

A defense that you are too young to have the requisite intent to commit the crime at common law it was for 13 or 14, at modern law is 14.

85
Q

When can Deadly Force be used by the original aggressor?

A

When he tries to withdraw and communicate that withdraw or if the victim has a sudden escalation of violence

86
Q

Deadly Force to Arrest

A

Only if the officer believes the suspect is armed or presents a danger to the public. This is considered a seizure.

87
Q

Imperfect Self Defense

A

When there is no right to self-defense, D is only convicted of voluntary manslaughter

88
Q

Defense of Others/Dwelling

A

NDF is its necessary to protect, Deadly force if threated with death or great bodily harm. Can’t use deadly force to protect a dwelling only a person

89
Q

Duress Defense

A

When D performs a criminal act under threat of death or serious bodily harm to him or another. There must be a threat made by another human. The traditional rule did not allow the threat to property under the MPC threat to property is sufficient if the harm threatened outweighs the harm of a criminal act. A person is not guilty of an offense, other than intentional homicide, if he performs an otherwise criminal act under the reasonable belief that another will imminently inflict death or great bodily harm on him or an immediate family member if he does not commit the criminal act.

90
Q

Necessity Defense

A

Choice of evils: Harm to society exceeds harm of the criminal act. This is an objective test, it is not available if D is at fault for creating the situation. The traditional rule had to be from natural forces, the modern cases don’t have this requirement.

91
Q

Mistake of Law Defense

A

Generally not a defense

92
Q

Mistake of Fact Defense

A

The mistake must negate the state of mind. Ignorance or mistake as to a matter of fact will affect criminal guilt only if it shows that the defendant did not have the state of mind required for the crime.

93
Q

Entrapment Defense

A

The criminal design originated with authorities and the defendant was not predisposed to commit a crime

94
Q

Mistake of Fact for Malice and General Intent Crimes

A

Mistake must be reasonable

95
Q

Mistake of Fact for Specific Intent Crimes

A

Mistake can be reasonable or unreasonable

96
Q

Mistake of Fact for Strict Liability Crimes

A

The mistake is not a defense

97
Q

Defenses to Murder

A

Self Defense and Provocation

98
Q

Defenses to Felony Murder

A

If there is a defense to the underlying felony, there is a defense to felony murder. Under the modern view, criminal liability for murder cannot be based on the death of a co-felon from resistance by the victim or police pursuit.

99
Q

Felony Murder - Fleeing Rule

A

Deaths caused while fleeing are felony murder but deaths that arise after D is gone and is at a point of temporary safety are not connected

100
Q

General rule of D liability

A

A D is liable for all natural and probable consequences of his conduct unless the chain is broken by the intervention of some superseding factor

101
Q

Superseding Factors

A

Acts of Nature
Coincidence
Negligent medical care is not a superseding factor unless gross negligence or intentional malpractice

102
Q

When to add a causation analysis to a homicide problem?

A

Hastening an inevitable result or Simultaneous acts by two or more parties

103
Q

What to do when there is no statute defining the crime?

A

Look for elements of a common-law crime. Discuss the modern expansion of liability.

104
Q

Criminal Battery

A

Unlawful Application of force to another resulting in a bodily injury or offensive touching

105
Q

Criminal Assault

A

Intent to commit a battery or intentional created of an imminent apprehension of bodily harm

106
Q

Criminal False Imprisonment

A

Unlawful confinement of a person without valid consent

107
Q

Kidnapping

A

Some movement or concealment of a victim in a secret place or when the victim is moved during the commission of another crime to a location that places them in more danger

108
Q

Rape

A

Any penetration of the female sex organ by the male sex organ (becoming gender natural), without the victim’s consent when they aren’t married (this is mostly abolished)

109
Q

Examples of Non-Consent

A

Actual Force
Threats of great immediate bodily harm
The victim is incapable of consent because unconscious, intoxicated, or mentally can’t
Fraudulently believed the act wasn’t intercourse

110
Q

Receipt of Stolen Property

A

Receiving possession and control of stolen personal property and knowing it was obtained in a manner constitutional a criminal offense by another person with the intent to permanently deprive the owner of his interest in it

111
Q

Theft

A

Not under the common law, consolidated larceny, embezzlement, false pretenses, and receipt of stolen goods

112
Q

Arson

A

The malicious burning of the swelling of another

113
Q

Arrest

A

A type of seizure must be based on probable cause. There is no warrant required for a public arrest but one is needed for one inside the person’s home.

114
Q

4th Amendment

A

There is a right to be free from unreasonable searches and seizures of persons, property, papers, and effects by the government

115
Q

Terry Stop

A

Need RAP determined by the totality of the circumstances that a crime might be being committed. If it’s from an informant there must be evidence of reliability. Police must only take enough time to confirm or dispel suspicion.

116
Q

Automobile Stops

A

Reasonable suspicion that a law has been violated unless there is a road block

117
Q

Roadblocks

A

Allowed when cars are stopped on the basis of a neutral articulable standard and must serve a purpose closely related to a particular problem pertaining to automobiles and their mobility (can’t just be crime prevention)

118
Q

What is not covered under the 4th A?

A

Subpoenas to appear before a grand jury

119
Q

Analysis for Search or Seizure

A
  1. Was there Gov. Conduct?
  2. Does D have Standing?
  3. Was there a warrant?
  4. Was there an exception to the warrant?
120
Q

Standing under the 4th A

A

If D has a reasonable expectation of privacy or if there was an intrusion into their own constitutionally protected area

121
Q

Warrant Requirements

A

Issued by a neutral and detached. Must be based on probable cause to believe that seizable evidence will be found. Particularly described please to be searched and times to be seized. Invalid if based on the false statement. Generally, must knock and announce.

122
Q

SITA

A

A search of the person and their immediate grabbing area after the arrest. Must be immediately after arrest.

123
Q

Automobile Warrant Exception

A

When an officer has probable cause to believe the vehicle contains seizable evidence. Can look everywhere in the car where the item could be found. Including containers in the car.

124
Q

Consent Warrant Exception

A

Must have right to use or occupy the property, a suspect can overrule one’s consent. A parent can give content to search for a child’s room. This consent must be voluntary and non-coerced. Can only search within the scope of what was consented to.

125
Q

Terry Frisk

A

Can frisk if reasonably believed that suspect was armed and dangerous. Can seize anything that by plain feel is a weapon or contraband.

126
Q

Hot Pursuit

A

Must be of a fleeing felon, not someone committing a misdemeanor. Must be continuous. Can enter house without a warrant.

127
Q

Evanescent Evidence

A

Evidence that would likely disappear before a warrant can be obtained (fingernail tissue, breathalyzer test)

128
Q

Emergency Aid/Community Caretaker

A

Actual emergency OR Reasonable for police to believe there is an emergency

129
Q

Inventory Searches

A

Valid if there is an established police procedures

130
Q

Public School Searches by School Officials

A

Valid if reasonable and offer a moderate chance of finding evidence of wrongdoing. This is implemented through means reasonable related to the objectives of the search. Can’t be excessively intrusive.

131
Q

Mandatory Drug Testing

A

Has been uphelf when it seves a special need such as for high school students in extracurriculars and government employees with access to druges

132
Q

Border Searches

A

Warrantless searches are broadly upheld to protect sovereignty.

133
Q

14th A. Voluntariness - Was due process violated?

A

Looking at the totality of the circumstances, government compulsion makes confession involuntary. A harmless error test applies if it was erroneously admitted into evidence.

134
Q

Harmless Error Test

A

ADD

135
Q

6th A Right to Counsel

A

This is available. Applies at all stages of the prosecution. ATtaches when adversary judicial proceedings being. Pertain only to one charge and D must ask against If there is another charge. A statement made in violation can be used to impeach but not to prove guilt.

136
Q

6th A Violation Remedy

A

AUtomicc reversal of trial, if it was during nontrial proceedings use harmless error rule

137
Q

5th A Privilege Against Self Incrimination applies when

A

Before Trail

138
Q

Waiving Miranda Warnings

A

Must be explicitly invoked can’t just remain silent. Must be clear and unambiguous. Can ask questions again 14 days after the D has returned to normal life.

139
Q

What if evidence was obtained from a violation of Miranda Warnings?

A

Inadmissible at trial, but can still be used to impeach. A harmless error test applies. Response to a question without Miranda may be admissible if the question was prompted by concern for public safety.

140
Q

6th A Pretial ID

A

Right to counsel at any post-charge lineup or show up (unless it’s by photo). Any improper ID will be excluded from the trial. Any necessarily suggestive ID procedures that give rise to a likelihood of misidentification violate due process.

141
Q

Exclusionary Rule

A

Evidence obtained in violation of the 4th, 5th, or 6th A will generally be excluded from evidence at trial. Searches need to be reasonable.

142
Q

Fruit of the Poisonous Tree

A

All Evidence derived from excluded evidence will also be excluded. A harmless error test applies

143
Q

Fruit of Poisonous Tree Balancing Test

A

No exclusion if the deterrent effect on police misconduct is outweighed the costs of excluding probative evidence

144
Q

Fruit of Poisonous Tree Exceptions

A
  1. Independent Source
  2. Attenuation (the interventing act of circumstance)
  3. Invenitble Discovery
  4. Live Witness Testimony
  5. In Court ID
  6. VIolations of the no-knock entry rule
  7. Good faith reliance on a defective Search Warrant
  8. Use of Evidence to Impeach
145
Q

What is outside the scope of the Fruit of the Posiouness tree doctrine?

A
  1. Grand Juries
  2. Civil Proceedings
  3. Violations of State Law
  4. VIoaltions of internal agency rules
  5. PRoceedings to revoke parol
146
Q

Preliminary Hearings

A

A hearing to determine PC it is not required if PC is already found in a grand jury hearing or under an arrest warrant. The hearing must be within 48 hours.

147
Q

Initial Appearance

A

This is soon after the arrest when D is told of the charges bail is set and appoint of counsel is done if needed

148
Q

Bail

A

Right under the due process clause as to federal prosecutions, most states also required. Excessive bail is a violation of 8th A and unfair procedures violate due process

149
Q

What rights don’t you have in a grand jury?

A

No rights to counsel, Miranda Warnings, Warnings that a witness is potential D, exclude evidence that would inadmissible at trial, challenge a subpoena for lack of PC

150
Q

Grand Juries

A

A grand jury is used to determine if there is PC to bring charges against someone. This is not required by states. If the jury finds PC the grand jury issues a true bill. These is secret proceedings with broad subpoena power. Subpoenas are only quashed if the opposing party can prove no reasonable possibility that the material sought is relevant to the grand jury investigation.

151
Q

Prosecutorial Disclosure Duties

A

Gov must disclose exculpatory evidence, if failed it’s a due process violation when reasonable probability trial result would have been different if undisclosed evidence has been presented at trial

152
Q

When is D not competent to stand trial?

A

When at the time or trial:
1. D lacks a rational and factual understanding of the charges and proceedings
2. D lacks the ability to reasonably consult with an attorney

153
Q

Who has a duty to raise competency issues?

A

Trial Judge if no one does first. The burden to prove is placed on D.

154
Q

What happens to an incompetent defendant?

A

Can be detained in a mental hospital instead of prison.

155
Q

Pretrial Publicity

A

Excessive prejudicial publicity may necessitate a change of venue

156
Q

Right to a public trial

A

6th at 14th A

157
Q

Who can hear probable cause hearings?

A

Presumably open to the public

158
Q

When are suppression hearings closed?

A
  1. Party seeking closure has an overriding interest
  2. Closure is no broader than necessary
  3. Other reasonable alternatives were considered
  4. Court makes findings to support the closure
159
Q

What are the police supposed to do when the right to silence is clearly invoked?

A

Stop asking any questions and may not badger the suspect. If they honor the request, they can still rewarn the accused and later resume questions about a different crime.

160
Q

What are the police supposed to do when the right to an attorney is clearly invoked?

A

Questioning must cease until an attorney is present about any crimes.

161
Q

What rights do you have when your items are found at someone else’s house from an unreasonable search?

A

NONE you have no standing to challenge that in court. No REP.

162
Q

Waiver of 6th A right to trial

A

a guilty plea. Valid when the judge determines on the record the plea represent a voluntary and intelligent choice among the alternative courses of action open to the defendant.

163
Q

Voluntary Confessions

A

Admissible even if no Miranda warnings were given. can’t be coerced. Can’t be the result of an interrogation. Even a voluntary confession will be inadmissible if it was obtained in violation of Miranda rights.

164
Q

Exception to 6th A. Right to convert adverse witnesses

A

Statements can be admitted when all portions of the statement referring to the other D can be eliminated, the confessing D takes the stand and subjects himself to cross-examination or the confession of the non-testifying co-defendant is being used to rebut the D’s claim that his confession was obtained coercively and the jury can be instructed as to the purpose of the admission.

165
Q

Deadly Force Exception

A

If the victim of the initial aggression suddenly escalates a relatively minor fight into one involving deadly force and does not give the aggressor a chance to withdraw or retreat, the aggressor may use deadly force in his own defense

166
Q

Due Process Prosecutor

A

The prosecutor is required by the Due Process Clause to prove each and every element of a crime beyond a reasonable doubt.

167
Q

Common Law Conspiracy

A

(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. No withdrawal allowed. 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.

168
Q

Arresting at a third-party residences

A

Absent exigent circumstances, the police executing an arrest warrant may not search for the subject of the warrant in the home of a third party without first obtaining a separate search warrant for the home. If the police do execute an arrest warrant at the home of a third party without obtaining a search warrant for the home, the arrest is still valid but evidence of any crime found in the home cannot be used against the owner of the home because it is the fruit of an unconstitutional search.

169
Q

Right to remain silent

A

The police may reinitiate questioning after the defendant has invoked his right to remain silent, as long as they “scrupulously honor” the defendant’s request. This means, at the very least, that the police may not badger the defendant into talking and must wait a significant time before reinitiating questioning. They can ask questions about different crimes if they re mirandize.

170
Q

Double Jeopardy Exception

A

When a mistrial is granted in the first trial at the request of the defendant on any ground not constituting an acquittal on the merits, the defendant can be retired even if double jeopardy is attached in the first case.

171
Q

Death Penalty

A

Under the 8th A, 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 or intend that lethal force be employed.

172
Q

Ineffective Assitance of Counsel

A

the claimant must show her counsel’s performance was deficient and that, but for the deficiency, the outcome of the trial would have been different.

173
Q

The burden of Proof Criminal Case

A

In all criminal trials, the government has the burden to prove all the elements of a crime beyond a reasonable doubt. However, this rule does not preclude the state from imposing a burden on the defendant to prove an affirmative defense, such as self-defense.

174
Q

Exigent Circumstances Warrant Exception

A

If exigent circumstances exist, such as imminent destruction of evidence, the police may enter constitutionally protected premises without a warrant and seize the evidence to prevent its destruction. And this is true even if the exigency was created by the police so long as it was not created in actual or threatened violation of the Fourth Amendment.

175
Q

REP in Trash

A

It is implicated when the government searches or seizes something in which the person subject to the search has a reasonable expectation of privacy. One does not have a reasonable expectation of privacy in things held out to the public. The Supreme Court has held that one has a reasonable expectation of privacy in one’s home and the home’s curtilage (that is, the land and outbuildings immediately adjacent to the home); however, one does not have a reasonable expectation of privacy in the garbage when it has been put out for collection outside the home’s curtilage because there is no reasonable expectation of privacy in an abandoned property.

176
Q

6th a right to jury selection

A

Jury selection is a critical stage of trial at which the defendant is entitled to be present.

Barbri (14 decks)

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