Crim Pro Tricky Flashcards
What is permissible under a Terry stop and frisk?
The person must be stopped. That is, a reasonable person would believe that they cannot leave.
The frisk is a non exploratory frisk. It is a putdown of the body and outer clothing for weapons justified by the officer’s belief that the person is armed and dangerous.
The officer can seize weapons. The officer can also seize contraband if it can be identified as such without being physically manipulated.
What is the scope of a search incident to arrest?
Anything without the suspects immediate control. This includes objects on the suspects person.
What is the standard for a terry stop?
Reasonable suspicion.
What is the standard for a terry frisk?
The officer’s belief that the suspect is armed and dangerous.
Can police stop cars without individualized suspicion?
Yes. The police may stop automobiles for investigatory purposes even without reasonable suspicion if they make the stops on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles.
E.g., checkpoints set up on highways to interdict drunk drivers.
What are the elements of a warrantless seizure?
To make a warrantless seizure, the police (i) must be legitimately on the premises where the item is found; (ii) the item must be evidence, contraband, or a fruit or instrumentality of a crime; (iii) the item must be in plain view; and (iv) it must be immediately apparent (i.e., probable cause) that the item is evidence, contraband, or a fruit or instrumentality of a crime.
In most states, murder is of the second degree, but the murder is of the first degree when:
In most states, murder is of the second degree unless deliberation and premeditation can be shown, or the killing occurred during an enumerated felony, in which case the murder is of the first degree. If neither can be shown, the killing will usually be second degree murder (unless the killing is downgraded to manslaughter based on adequate provocation). Depraved heart murder would ordinarily be second degree murder in most states.
For the purposes of felony murder, the felony is deemed to terminate when:
The defendant reaches a place of temporary safety.
When a defendant has invoked his right to counsel under the 5th A and his right to counsel under the 6th has attached, what is the scope of the amendments’ protections?
If a defendant invokes his right to counsel, under the Fifth Amendment the police cannot interrogate the defendant about any charge without counsel. But under the Sixth Amendment, the defendant can be interrogated regarding a different charge.
When can police reinitiate questioning a witness that has invoked his 5th Amendment right to silence?
The Supreme Court has allowed the police to reinitiate questioning where:
(i) the police ceased questioning immediately upon the detainee’s request and did not resume questioning for several hours;
(ii) the detainee was given a fresh set of Miranda warnings; and
(iii) the questioning was limited to a crime that was not the subject of the earlier questioning.
When a suspect makes a request for counsel, the request must be unambiguous. Is this a subjective or objective standard?
The test is objective—the request must be sufficiently clear that a reasonable police officer in the same situation would understand the statement to be a request for counsel.
How long do police have to wait to further attempt to question a defendant that requests counsel?
14 days after the end of the investigation.
When is mistake of fact available as a defense?
Mistake of fact is available as a defense to both specific intent and general intent crimes. However, note that a mistake of fact must be reasonable to be a defense to a general intent crime. An unreasonable mistake of fact is a defense to a specific intent crime only.
What distinguishes larceny by trick and false pretenses?
If a victim intends to convey only possession of the property to the defendant, the offense is larceny by trick. However, if the victim intends to convey title, the offense is false pretenses.
Can a landlord break into a building he owns and commit burglary?
Yes. In determining whether the dwelling is that of another, occupancy rather than ownership is material.
The Sixth Amendment is:
Offense specific.
The Fifth Amendment is:
Not offense specific.
What should happen when a defendant invokes the right to counsel?
All questioning must cease until the defendant is provided with counsel.
Does “magic aforethought” include reckless actions?
Yes. “Malice aforethought” can mean that the defendant is acting with reckless indifference to an unjustifiably high risk to human life.
Can the police execute an arrest warrant at the home of a third-party?
Yes. 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.
What are the kinds of malice aforethought?
- Intent to kill
- Intent to inflict serious bodily injury
- Felony murder - must be a serious or inherently dangerous felonies.
- Depraved heart
What felonies are seriously or inherently dangerous?
BARRK
- Burglary
- Arson
- Robbery
- Rape
- Kidnapping
What is misdemeanor manslaughter?
A death that occurs in conjunction with an assault or battery.
If a person is threatened with bodily harm, how can he respond?
In self-defense with reasonable force.
When a person is threatened with serious and imminent bodily harm or death, how can he respond?
In self-defense with deadly force.
What is the agency theory for felony murder?
Only deaths caused by the felon or his agents (accomplices) qualify for felony murder treatment.
What are the elements of insanity under M’Naghten?
- a disease of the mind
- causing a defect in reason
- which left the defendant at the time of his actions lacking the ability to either (a) know the wrongfulness of his actions or (b) understand the nature and quality of his actions.
Define larceny by trick, false pretenses, and embezzlement:
Larceny by trick: the defendant uses fraud to obtain a possessory interest in property, but not title.
False Pretenses: defendant uses false pretenses (a lie or fraud) to obtain title to property.
Embezzlement: defendant is in rightful possession of the property, but misappropriates it. Think bailments and entrustments.
What is the requisite intent for accomplice liability?
The intent that the crime be committed.
What are the elements of accomplice liability?
A person acts with the intent that a crime be committed aids or encourages the principal before or during the commission of the crime.
Can merchants be held liable when they sell goods to a person knowing he will use the goods to commit crimes?
No. Mere knowledge that a crime might result from the sale of ordinary goods at ordinary prices is insufficient for accomplice liability.
