Crimes

Question 1

What is malice

Answer 1

Malice is intentional or reckless disregard of an obvious or known risk

Question 2

Defenses related to intent for strict liability crimes

Answer 2

Defenses related to intent for Strict liability crimes are limited to insanity, involuntary intoxication, duress.

Question 3

What is transferred intent

Answer 3

When the defendant intended to harm one person but actually causes harm to another person, the intent is transferred to the victim actually harmed. Defendant may also be prosecuted for attempt to harm the intended victim. Note: intent cannot be transferred between different crimes.

Question 4

What are the four mental states defined by the model penal code

Answer 4

Purposely, knowingly, recklessly, and negligently

Question 5

What is purposely under the model penal code

Answer 5

A person acts purposely if it is her conscious object to engage in conduct of that nature or to cause such a result. This is a subjective standard

Question 6

What is knowingly under the model penal code

Answer 6

A result is knowingly caused if the defendant is aware that it is practically certain that her conduct will cause such a result. This is a subjective standard.

Question 7

What are the four elements of a crime

Answer 7

Guilty act, guilty mind, concurrence, causation

Question 8

What is a guilty act

Answer 8

A voluntary physical act or failure to act when there is a legal duty to act, i.e. omission

Question 9

Is possession of contraband a guilty act

Answer 9

Possession is an act if the defendant was aware of her control of the contraband for sufficient period To have been able to terminate her possession

Question 10

What is recklessly under the model penal code

Answer 10

A person acts recklessly if she consciously disregards the substantial and unjustified risk that the material element exists or will result from her conduct. This is a subjective standard.

Question 11

What is negligently under the model penal code

Answer 11

A defendant acts negligently if the defendant should Be aware of a substantial and unjustifiable risk that the material element exists or will result from her conduct. This is an objective standard.

Question 12

What is proximate cause

Answer 12

Proximate cause is the philosophical connection, which limits liability to consequences that there are some reasonable relationship to the actors contact so as to not offend notions of common sense, justice, and logic, i.e. foreseeability. The general rule under proximate cause analysis is that the defendant is guilty for all the natural and probable consequences of her act or omission.

Question 13

When does an intervening cause break the chain of causation

Answer 13

It is widely held that an intervening cause breaks the chain of causation from the original act to the death only if the intervening force was so out of the ordinary that it is no longer fair to hold the defendant criminally responsible for the outcome. In this case, the intervening event must have been abnormal or bizarre to prevent a defendants original action from being regarded as the proximate cause of death.

Question 14

Where may a crime be prosecuted

Answer 14

A crime may be prosecuted in any state where an act constituting an element of the offense was committed or any state where the act caused a result

Question 15

The prosecution Must prove each element of a crime…

Answer 15

Beyond a reasonable doubt

Question 16

Are (irrebuttable) mandatory presumptions constitutional

Answer 16

The US Supreme Court has held it to be a violation of due process for a judge to give a mandatory jury instruction in a criminal case on an element of the charged crime. The instruction is unconstitutional because the phrase shall be presumed could be interpreted by the jury as shifting the burden of proof to the defendant or as requiring the jury to find an element of the charge crime neither of which is permissible.

Question 17

The prosecution must disprove every element of a defense raised by the defendant…
Exception?

Answer 17

Beyond a reasonable doubt.
Exception: The insanity defense. The supreme court has held that placing the burden of persuasion for insanity upon the defendant is not unconstitutional. In most states, the prosecution must prove beyond a reasonable doubt that the defendant is not insane. In other states, the defendant must prove the defense of insanity by a preponderance of the evidence. Under federal law the defendant must prove insanity by clear and convincing evidence.

Question 18

Felony v misdemeanor

Answer 18

A felony may be punished by more than one year in prison. The maximum punishment for a misdemeanor may not exceed one year in prison.

Question 19

Attempt elements

Answer 19

To prove attempt, the state must show that defendant intended to commit the crime and that she committed an overt act beyond mere preparation. Attempt is always a specific intent crime. As far as the overt act, Under the model penal code and in most states, the defendant must have taken a substantial step towards completion of a target crime. The common law standard is dangerous proximity to success.

Question 20

May the prosecutor convict a defendant for attempt and the completed crime

Answer 20

No. If the person attempting the crime actually completes the crime, the defendant cannot be guilty of both attempts and the completed crime.

Question 21

Is legal impossibility a Defense to attempt

Answer 21

Yes. Legal impossibility is a defense to attempt. An attempt is considered to be a legal impossibility when the defendant has completed all of her intended acts but her acts failed to constitute a crime. That is, if what the person was attempting to do was actually not a crime even though she thought it was, then she cannot be found guilty of attempt.

Question 22

Is factual impossibility a Defense to attempt?

Answer 22

No. Factual impossibility is not a defense to attempt. As such, if the facts were as the defendant believe them to be, the defendant would have committed a crime, and the defendant is guilty of attempt.

Question 23

Is abandonment a Defense to attempt?

Answer 23

At common law, no, abandonment is not a defense to attempt. Modernly , however, and under the MPC, a voluntarily abandonment before the completion of the substantive crime is an affirmative defense. Note, however, that an abandonment that is the result of any extrinsic factor is not considered voluntary.

Question 24

Solicitation elements

Answer 24

Solicitation is inciting, urging, counseling, or commanding another to commit a crime with the specific intent that the person solicited commit the crime

Question 25

If solicitation becomes a conspiracy can a defendant be found guilty of both conspiracy and solicitation

Answer 25

No. The prosecutor making pick a dependent for solicitation or conspiracy but not both.

Question 26

Can a prosecutor convict for solicitation and accomplice liability if the person solicited completes the crime?

Answer 26

No. The prosecutor may convict the defendant for solicitation or accomplice liability but not both.

Question 27

Is withdrawal a defense to solicitation

Answer 27

A solicitor who solicits and then withdraws remains guilty for solicitation but avoids accomplice liability.

Question 28

Conspiracy elements

Answer 28

Conspiracy requires an agreement between two or more people to commit a crime, intent to enter into an agreement, intent to pursue an unlawful objective (meeting of the minds), and an overt act in furtherance of the conspiracy.

Question 29

Can a person conspire with an undercover officer

Answer 29

No a person cannot conspire with an undercover officer unless there is another co-conspirator

Question 30

What is the Wharton rule

Answer 30

At common law, where two or more people are necessary to commit a crime, e.g., adultery, incest, bigamy, bribery, gambling there cannot be a conspiracy to commit that crime unless more parties participate in the agreement than the number of participants required by the criminal statute.

Question 31

Can there be a conspiracy between a husband and wife

Answer 31

At common-law, a husband and wife could not conspire together but today virtually all courts have rejected this rule

Question 32

Can you be a conspiracy between a corporation and a single agent acting on behalf of the corporation

Answer 32

No there can be no conspiracy between a corporation and a single agent acting on behalf of the corporation

Question 33

If all other co-conspirators are acquitted, can the remaining defendant be convicted?

Answer 33

No. The remaining defendant cannot be convicted of conspiracy because the acquittals prove that there was no one with whom the defendant conspired. Acquittal is the key, so if the other co-conspirators are not Apprehended or prosecuted, the defendant can still be
Convicted of conspiracy.

Question 34

Is mistake of fact A Defense for conspiracy?

Answer 34

Yes Mistake of fact is a defense for conspiracy. There must be a meeting of the minds between at least two people to pursue an unlawful objective.

Question 35

What is unilateral conspiracy

Answer 35

The model Penal Code depart significantly from the common law by establishing a unilateral approach to conspiracy liability. This unilateral approach to conspiracy has been adopted in most states and allows the defendant to be convicted of conspiracy even if all the other co-conspirators were undercover agents or were in a class protected by statute or have personal defenses.

Question 36

Is an overt act required for conspiracy

Answer 36

At common law, liability for conspiracy only requires the agreement. No overt act is required. MPC only requires an overt act for non-serious crimes. However the majority rule is that yes liability for conspiracy requires an overt act.

Question 37

What is the scope of co-conspirator liability

Answer 37

Each co-conspirator is liable for the crimes of all other co-conspirators if the crimes were reasonably foreseeable and committed in furtherance of the conspiracy even if unintended. A co-conspirator need not be present at the commission of each crime, nor does the arrest of one co-conspirator automatically terminate the conspiracy where other co-conspirators continue to carry out the goals of the conspiracy.

Question 38

Can a defendant be convicted of both of the conspiracy to commit a crime and the underlying crime itself

Answer 38

Yes. The defendant can be convicted of both the conspiracy to commit a crime and the underlying crime itself.

Question 39

When are multiple agreements considered a single conspiracy?

Answer 39

A single conspiracy will be found if each participant knows that the other participants exist and realize that they have a community of interest, i.e., the success of the venture depends on the success of the other agreements. It is important to note that knowledge of others’ precise identity is not required. All that is required is that the members are aware that there are others involved in the scheme.

Question 40

Hub and spoke conspiracies

Answer 40

Where one participant enters into a number of different agreements that are reasonably independent of each other and are each with different people, the conspiracy will be reguarded as multiple, independent conspiracies unless there is a community of interest.

Question 41

Is mistake of fact a valid defense to conspiracy

Answer 41

Yes

Question 42

What are the requirements for an effective withdrawal from a conspiracy

Answer 42

There must be an affirmative action that notifies all co-conspirators and the notice must be given with sufficient time for the other co-conspirators to have an opportunity to abandon the crime.

Question 43

Is withdrawal a Defense to a charge of conspiracy

Answer 43

No

Question 44

Is withdrawal a defense to substantive crimes already committed in furtherance of the conspiracy

Answer 44

No. Withdrawal is not a Defense to substantive crimes already committed in furtherance of the conspiracy.

Question 45

What effect will withdrawal from a conspiracy have

Answer 45

Effective withdrawal from a conspiracy will absolve the withdrawing co-conspirator of liability for subsequent acts of the other members of the conspiracy including the crime underlying the conspiracy if not yet completed when the defendant withdraws.

Question 46

What is accomplice liability?

Answer 46

If one aids, abets, encourages, or facilitates the commission of a crime with the intent at the crime be committed, one can be found guilty under the theory of accomplice liability. A conviction for accomplice liability requires not only proof that an accomplice aided a principles crime but also proof that the accomplice acted with a culpable mental state. It is important to note that accomplice liability is not a separate offense but rather an alternative way to be found guilty of the primary offense.

Question 47

What is an accomplice

Answer 47

An accomplice is someone who, with the intent to assist the primary party and with the intent that the primary party commit the crime, aids, councils, or encourages the principal before or during the commission of a crime. And accomplice is liable for the principal crimes ultimately uses an alternative means to accomplish the crimes.

Question 48

What is an accessory after the fact

Answer 48

An accessory after the fact is someone who shields, shelters, or is this another knowing that this person has committed a felony in order to help the felon escape arrest, trial, or conviction. Must be complete at the time it is rendered. An accessory after the fact is not liable for the principal crime but rather the less serious offense of accessory after the fact.

Question 49

Is presence alone sufficient for accomplice liability

Answer 49

No. Also failure to intervene to prevent will not make one an accomplice unless there is an affirmative duty to intervene.

Question 50

Are words alone sufficient for accomplice liability

Answer 50

Yes. Words alone are sufficient if the words constituted encouragement and approval of the crime.

Question 51

Can a defendant have accomplice liability for a crime of recklessness or negligence

Answer 51

In a few jurisdictions, a defendant cannot have accomplice liability for a crime of recklessness or negligence because one cannot intend a negligent or reckless killing. In most jurisdictions, however, courts hold an accomplice responsible for a crime like manslaughter if the accomplice intentionally provided assistance to the principal and acted with recklessness or negligence, as the case may be, with respect to the risk that the principal’s behavior would cause death.

Question 52

When an accomplice renders legal assistance when can intent be inferred for accomplice liability

Answer 52

The accomplice must have knowledge that the principal intends to use the legal service in the commission a crime and the accomplice must have a steak and the outcome in order to be criminally liable for rendering legal assistance. Charging more than usual is sufficient to find a steak in the outcome.

Question 53

What are the elements of a battery

Answer 53

The defendant must have had the intent to make physical contact with the victim or at least be acting in a manner that is reckless or criminally negligent. There must also be a harmful or offensive touching.

Question 54

Assault is either

Answer 54

An attempt to commit battery or the intentional creation of reasonable apprehension of imminent bodily harm

Question 55

What is required for assault as a threat

Answer 55

The act was intended to create reasonable apprehension of imminent bodily harm. And the act indeed caused apprehension of imminent bodily harm.

Question 56

What is homicide

Answer 56

Homicide is the unlawful killing of another person. The two principal types of homicide are murder and manslaughter.

Question 57

What is murder in the first degree

Answer 57

First-degree murder is created by statute and typically consists of: Intentional killing of a person, with time to reflect upon that killing, and doing so in a cool and dispassionate manner.

Question 58

What is second-degree murder or common law murder?

Answer 58

Second-degree murder or common-law murder is the intentional killing of a person with malice aforethought. Second-degree murder does not require the specific intent to kill.

Question 59

When does malice aforethought exist

Answer 59

Malice aforethought exists if there is no excuse, such as self-defense, justifying the killing, no adequate provocation can be found, and the killing is committed with one of the following states of mind: intent to kill, intent to commit great bodily injury, wanton and willful disregard for human life, or intent to commit a felony.

Question 60

What is the deadly weapon doctrine

Answer 60

Intent to kill can’t be satisfied by the deadly weapon doctrine, i.e. where the death is caused by the purposeful use of a deadly weapon, the intent to kill is implied.

Question 61

What does wanton and willful disregard of human life require

Answer 61

It requires subjective awareness of an unjustifiably high risk to human life.

Question 62

What is the felony murder

Answer 62

Under the felony murder rule, a person can be found guilty of a killing that occurs during the commission of an underlying felony that is inherently dangerous, such as burglary, arson, rape, robbery, or kidnapping. Any deaths caused during the commission of a felony must’ve been reasonably foreseeable and must have occurred before the defendant has reached a point of temporary safety.

Question 63

If a defendant has a Fowler Defense and it’s not guilty of an underlying felony can the defendant he found guilty of felony murder

Answer 63

No

Question 64

Can a defendant convicted felony murder be sentenced to death

Answer 64

The Supreme Court has ruled that a defendant convicted for felony murder cannot be sentenced to death if she neither took life, attempted to take life nor intended to take life.

Question 65

What is voluntary manslaughter

Answer 65

Voluntary manslaughter is an intentional killing that would be murder but for the existence of adequate provocation, imperfect self-defense, or diminished capacity.

Question 66

In the context of voluntary manslaughter, what is adequate provocation

Answer 66

Four elements are required to find adequate provocation:
The defendant in fact was provoked by the victim
The provocation was the sort of provocation that would arouse sudden and intense passion in the mind of an ordinary, reasonable person.
There was no reasonable time for the defendant to cool off between the provocation and the killing.
And the defendant did not cool off.

Question 67

What is the imperfect self-defense doctrine

Answer 67

Imperfect self defense or unreasonable self defense is a defense available to one who engages in a good faith but unreasonable self-defense using deadly force. It is a mitigating offense which reduces murder to voluntary manslaughter.

Question 68

Diminished capacity in the context of involuntary manslaughter

Answer 68

In some jurisdictions, diminished capacity can reduce murder to voluntary manslaughter but it is generally held that voluntary intoxication cannot reduce homicide from second-degree murder down to manslaughter.

Question 69

What is involuntary manslaughter

Answer 69

Involuntary manslaughter is an unintentional killing that results either from criminal negligence or misdemeanor murder

Question 70

What is criminal negligence

Answer 70

Criminal negligence exceeds tort negligence but is less than the reckless and indifference of depraved heart murder. It is not necessary that the defendant was aware that her actions entailed a high degree of risk to human life. Remember, however, that subjective awareness is required for depraved heart murder.

Question 71

What is the misdemeanor manslaughter rule

Answer 71

A misdemeanor murder is an unintentional killing that occurs during the commission of a misdemeanor or unenumerated felony. If the misdemeanor is not malum in se (inherently wrong) then the death must have been foreseeable.

Question 72

What is rape

Answer 72

Rape is sexual intercourse without the victims consent by force or threat of force.

Question 73

What is sexual intercourse

Answer 73

At common law, only vaginal penetration. The MPC also recognizes anal penetration.

Question 74

Is unreasonable mistake of fact a Defense to rape

Answer 74

No. Rape is a general intent crime, so unreasonable mistake a fact is not a defense, i.e. the defendant unreasonably believe the victim had consented. The defendant must’ve had a reasonable belief that the victim had consented to have a valid defense.

Question 75

Does lack of consent exist when the victim is incapable of consenting due to unconsciousness, intoxication, or mental incapacity

Answer 75

Yes.

Question 76

What if consent to sexual intercourse is obtained by fraud

Answer 76

If consent is obtained by fraud, it is nonetheless regarded as valid consent, i.e. no rape. However if, due to fraud, the victim does not even realize that she is having sexual intercourse, this would be sufficient for rape, e.g. doctor has sex with patient by informing her that she is being treated with a surgical instrument.

Question 77

What is the common law spousal exemption for rape

Answer 77

At common law, husband could not be found guilty of raping his wife. Modernly however, this exemption has been either entirely abolished or not recognize when the parties are estranged and or separated.

Question 78

What is statutory rape

Answer 78

All jurisdiction set forth an age of consent so statutory rape is defined a sexual intercourse with a person under the age of consent. Statutory rape is a strict liability offense so neither consent nor mistake a fact as to the victims age is a valid defense.

Question 79

What is false imprisonment

Answer 79

False imprisonment is the unlawful confinement of a person. Confinement of a person is unlawful unless it is authorized by law or the person consents to the confinement. To be valid consent must be freely given by a person with the capacity to consent. Confinement is forcing the victim to go where she does not wish to go or to remain where she does not wish to remain.

Question 80

What is kidnapping

Answer 80

Kidnapping is false imprisonment involves movement of a person or concealment of a person in a secret, i.e. undisclosed, location. To satisfy the movement requirement, the movement of the victim must not be related to some other offense.
The MPC has adopted a similar requirement referred to as the substantial distance rule.

Question 81

Larceny?

Answer 81

Larceny is the wrongful taking and carrying away of another’s tangible personal property with the intent to permanently deprive.
Larceny is a specific intent crime that requires the intent to permanently deprive the rightful possessor. This intent must be present at the time of the taking. Persons taking back their own property or taking property in an honest but mistaken belief that property belongs to someone who has authorized them to take it lacks the intent to steal required for larceny.

Question 82

continuing trespass?

Answer 82

If a defendant wrongfully takes property without the intent to permanently deprive, i.e. borrowing something without permission, the defendant is guilty of continuing trespass, not larceny. However, if the defendant later decides to keep the property, she will be guilty of larceny at the moment she decides to keep it.

Question 83

Is mistake of fact A Defense to larceny

Answer 83

Yes. If the defendant believes, even if the belief is unreasonable, i.e. unreasonable mistake of fact, that the property is her property, the defendant is not guilty of larceny.

Question 84

Embezzlement?

Answer 84

Embezzlement is the fraudulent conversion of another’s personal property by a person in lawful possession. Embezzlement is a specific intent crime, i.e. The defendant must have intended to defraud to be guilty of embezzlement.

Question 85

Is an intent to restore the exact property that was taken a Defense to embezzlement

Answer 85

Yes. If the defendant intends to restore the exact property that was taken, the defendant cannot be guilty of embezzlement. Note however that the intent to restore substantially similar property is not a Defense to embezzlement and money is not considered substantially similar.

Question 86

What is conversion in the context of embezzlement

Answer 86

Conversion is dealing with property in a manner that is inconsistent with a fiduciary relationship or trust agreement. The wrongdoer converts the goods to her own use and excludes the owner from the use and enjoyment of them.

Question 87

False pretenses?

Answer 87

False pretenses is obtaining title to another’s personal property by an intentional false statement of past or present fact with the specific intent to defraud.

Question 88

Robbery?

Answer 88

Robbery is larceny plus force or threat of immediate harm.
Robbery requires that the property be taken from the presence (i.e. taking property from a location reasonably close to the victim) or person of its owner.

Question 89

Forgery?

Answer 89

Forgery is the making or altering of a writing with apparent legal significance so that it is false with the intent to defraud. Please note that a defendant can be found guilty of forgery even if no one actually was defrauded.

Question 90

Extortion?

Answer 90

Extortion requires threat of future harm with the specific intent to cause another person to cede property

Question 91

How does extortion differ from robbery?

Answer 91

Extortion differs from robbery and three important ways

1. There is no requirement that the property be taken from another person or presence
2. A threat a future harm is sufficient and
3. In addition to physical threats, threats of economic/reputational harm are sufficient.

Question 92

Must the defendant be aware of the intimidation for robbery

Answer 92

Yes

Question 93

Receiving stolen property?

Answer 93

The requirements for this crime are the defendant receives stolen property with a knowledge that the property is stolen and with a specific intent to deprive the true owner of the property.

Question 94

Burglary?

Answer 94

The common law elements of burglary are the trespassory breaking and entering into the dwelling of another at night time and with the specific intent to commit a felony (usually larceny) inside.

Question 95

What is needed for trespassory breaking and entering

Answer 95

An obstruction to entrance must be overcome. Opening an unlocked window constitutes a breaking. Walking through an open door does not constitute a breaking.
Any part of the defendants body is sufficient for injury. It has been held at the intrusion of a part of a hand in opening a window, for the momentary intrusion of part of a foot and kicking out a window constituted entry.

Question 96

What is a dwelling of another for purposes of burglary

Answer 96

The dwelling is a place where another person regularly sleeps. Modernly, many jurisdictions have broadened this to include any structure.

Question 97

What is at night time for burglary

Answer 97

30 minutes after sunset in 30 minutes before sunrise

Statutory burglary in most jurisdictions have eliminated this requirement

Question 98

Arson?

Answer 98

At common law, arson is the malicious burning of another’s dwelling. Malice is the intentional or reckless disregard of an obvious or known risk. The damage to the building must have been caused by the fire. Under common law, arson requires that the building be a Dwelling but under modern law any structure will suffice.

Question 99

Is a psychiatric diagnosis of insanity sufficient for the defense of insanity

Answer 99

No. Insanity is a legal defense that must be set out by demonstrating the requisite elements as opposed to only expert testimony of a psychiatrist. Expert testimony, however, may be used to prove the legal elements of an insanity test but the expert testimony must show the elements of insanity as opposed to merely a psychiatric diagnosis of insanity.

Question 100

What are the four theories of insanity

Answer 100

M’Naghten Test, Irresistible Impulse Test, Durham Test, and ALI or MPC test

Question 101

What is the M’Naghten Test?

Answer 101

It is basically a test of whether the defendants mental disease prevents her from understanding right from wrong. Under the rule, an accused is not guilty by reason of insanity if because of a disease of the mind that causes a defect in reason, she either lacks the capacity to understand the wrongfulness of her acts or cannot appreciate the nature and quality of her actions. Note that the rule does not allow of finding of insanity if the defendant understood the difference between right and wrong but was unable to control her conduct.

Question 102

What is the irresistible impulse test for insanity

Answer 102

Under this test an accused is not guilty by reason of insanity if because of a disease of the mind she cannot exercise the self-control or conform her actions to the requirements of the law.

Question 103

What is the Durham test for insanity

Answer 103

Under the Durham rule, a defendant is not guilty by reason of insanity if the crime was the product of a mental disease or defect. Under the Durham rule, and accused is not guilty by reason of insanity if the mental disease is the actual cause of the criminal act. In other words, if the crime would not have been committed but for the mental disease then a defendant is not guilty.

Question 104

What is the ALI or MPC test for insanity

Answer 104

The rule is basically a blend of the M’Naghten Rule and the irresistible impulse test. Under the test, the defendant may prove a defense of insanity if she shows that because of a mental disease or defect she locked the substantial capacity to appreciate the criminality of her conduct or to conform her conduct the requirements of the law.

Question 105

Can voluntary intoxication be a defense to specific intent crimes

Answer 105

Yes voluntary intoxication can be a defense to specific intent crimes if it was not possible for the defendant to have the state of mind form the specific intent.

Question 106

Can voluntary intoxication be a Defense to a general intent crime

Answer 106

No. Voluntary intoxication cannot be a defense to a general intent crime.

Question 107

What is involuntary intoxication

Answer 107

Involuntary intoxication is the involuntary ingestion of an intoxicating substance, e.g. Duress, without knowing of its nature (i.e. tricked into taking a substance that she did not know wasn’t intoxication), prescribed by a medical professional, etc.

Question 108

Can involuntary intoxication be a defense to specific intent crimes or general intent crimes

Answer 108

Yes involuntary intoxication is a complete defense to all crimes

Question 109

What are the common law rules for infancy and criminal liability

Answer 109

At common law there is no criminal liability for children under the age of seven and a rebuttable presumption of no criminal liability for children under the age of 14

Question 110

When may a non-aggressor victim use non-deadly force in self-defense

Answer 110

A non aggressor victim may use non-deadly force in self-defense anytime the victim reasonably believes that force will be used against her. There is no obligation to retreat before using non-deadly force.

Question 111

When may a victim use deadly force in self-defense

Answer 111

A victim may use deadly force in self-defense if the victim is not at fault (ie, non aggressor victim), is confronted with unlawful force, and the victim reasonably believes that she is facing eminent threat of death or great bodily harm.

Question 112

Is there a duty to retreat before using deadly force

Answer 112

The majority rule is that there is no duty to retreat. Some jurisdictions however do require a victim to retreat before using deadly force if the victim can do so safely unless the attack takes place in the victims home or the victim is a police officer making a lawful arrest.

Question 113

What is the general rule regarding an initial aggressor’s right to self defense

Answer 113

The general rule is that the right to use force in self-defense is not ordinarily available to one who provoked the conflict or is the aggressor.

Question 114

Can words serve as initial aggression

Answer 114

Insulting language can never qualify as initial aggression or adequate provocation. Descriptive language, however, can qualify as initial aggression or provocation. (E.g. I killed your wife and daughter, I slept with your wife.)

Question 115

What are the two exceptions to the general rule that the right to use force in self-defense is not available to one who provokes a conflict or is the aggressor

Answer 115

If the initial aggressor effectively withdraws from the confrontation and communicate this withdrawal to the original victim the initial aggressor regaines the right to use self-defense if the original victim resumes the altercation.
If the victim of the initial aggressor escalates a fight involving non-deadly force into a fight involving deadly force the initial aggressor may use force in self-defense. The initial aggressor, however, must retreat before using deadly force if she can do so safely.

Question 116

What is the imperfect self defense doctrine

Answer 116

The imperfect self-defense or unreasonable self-defense doctrine is a Defense available to one who engages in good faith but unreasonable self-defense using deadly force. It is a mitigating defense that can reduce murder to voluntary manslaughter.

Question 117

What are the requirements for the defense of defense of others?

Answer 117

The majority position is that even if the other person did not have a legal right to use force in our own defense, the defendant who came to the aid of that person may nevertheless assert self defense of others if the defendant honestly and reasonably believe that the other person had the right to use force in her own defense.
The minority position is that the defendant steps into the shoes of the person she defends and therefore can only assert self defense of others if that other person actually had a legal right to use force in our own defense.

Question 118

Can deadly force be used to defend a dwelling

Answer 118

The use of deadly force to defend a dwelling is generally prohibited.
However, in some jurisdictions, deadly force may be used when there is a riotous and forcible entry of one’s dwelling provided that a warning will not suffice. Other courts hold that deadly force may be used when the defendant reasonably believes that such force is required to prevent unlawful entry by a person who intends to commit a felony inside the dwelling or to prevent harm to someone inside the dwelling. A modern view has combined these prongs so that deadly force may only be used when the intrusion appears to pose a danger of a violent felony.

Question 119

May non-deadly force be used to defend a dwelling

Answer 119

Non-deadly force maybe used if the defendant reasonably believes such force is required to prevent or end unlawful entry into or attack on the dwelling.

Question 120

Can deadly force be used for the defense of property

Answer 120

The use of deadly force is never allowed for the defense of property

Question 121

Can non-deadly force be used to protect property?

Answer 121

May be used to protect property in only two situations on the bar exam:
Non-deadly force can be used to defend property in one’s possession only if a request to desist or refrain from interference would not suffice.
Non-deadly force can be used to regain property that was wrongfully taken only if the defendant was in immediate pursuit of the taker.

Question 122

Duress?

Answer 122

The defendant reasonably believed another would imminently inflict death or great bodily harm to her or an immediate family member.
Duress is a complete defense to all crimes except homicide.

Question 123

Defense of necessity?

Answer 123

Necessity is a defense to a crime if the defendant reasonably believed that committing the crime was necessary to avoid a greater harm than the harm caused by her crime and there was no reasonable alternative.
Just like duress, necessity cannot serve as a defense to homicide. Also, the defendant cannot claim the defense of necessity if she was responsible for creating a necessity.

Question 124

Mistake of fact as a defense?

Answer 124

Mistake a fact means that, if the facts were as the accused honestly believed them to be, she would not have committed a crime. Mistake a fact is a valid defense only if it is used to show that the defendant lacked the required state of mind for the crime.
Unreasonable mistake a fact can be a defense only for specific intent crimes. Reasonable mistake a fact can be a defense for specific intent crimes and general intent crimes but not strict liability crimes.

Question 125

Mistake of law as a defense?

Answer 125

Mistake of law is never a defense. Ignorance of the law excuses no one.

Question 126

Lawfully resisting arrest?

Answer 126

A person can lawfully resisting arrest if an officer clearly does not have lawful basis to make the arrest. This privilege, however, is very limited and it would only attach where there is no basis whatsoever to make an arrest of the person. This privilege does not extend to on looking third parties who witness the unlawful arrest.

Question 127

Entrapment defense?

Answer 127

For a successful entrapment defense, the defendant must establish that she had no predisposition to commit the crime, i.e., when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.

Question 128

Is consent a Defense to a crime

Answer 128

Consent is not a defense to a crime unless lack of consent is an element of the crime (eg rape or battery).

Question 129

Which bill of rights guarantee has not been extended to the states

Answer 129

The right to indictment by grand jury in felony cases

Question 130

What is the exclusionary rule, fruit of the poisonous tree doctrine

Answer 130

If a defendants constitutional rights are violated in connection with a criminal prosecution, the exclusionary rule, a judge made doctrine, requires exclusion of all evidence obtained in violation of such rights and all derivative evidence. The government must establish the admissibility of evidence by a preponderance of the evidence.

Question 131

Standing for asserting the exclusionary rule

Answer 131

A defendant may only assert the exclusionary rule to bar evidence obtained in violation of her own constitutional rights

Question 132

Is the exclusionary rule applicable to civil proceedings

Answer 132

No. The exclusionary rule is not applicable to civil proceedings.

Question 133

Is the exclusionary rule applicable to deportation hearings

Answer 133

The exclusionary rule is not applicable to deportation hearings.

Question 134

Is the exclusionary rule applicable to parole revocation proceedings

Answer 134

No the exclusionary rule is not applicable to parole revocation proceedings

Question 135

The exclusionary rule generally only applies to

Answer 135

Evidence presented by the prosecution as part of its case in chief at defendants trial

Question 136

Is the exclusionary rule applicable to grand jury proceedings

Answer 136

No, the exclusionary rule is not applicable to grand jury proceedings

Question 137

Purged taint exception?

Answer 137

If enough additional factors intervene between the original constitutional violation and the final discovery of the evidence, the evidence may still be admissible.

Question 138

Three ways taint can be purged the evidence will be admissible

Answer 138

An intervening act the defendants free will will break the chain and purge the taint of the original constitutional violation. Note, however, that a voluntary confession given while in custody immediately following the unconstitutional arrest will not be admissible even if given after Miranda warnings.
If the evidence was obtained by a source independent of the original constitutional violations, the evidence will not be excluded.
Independent source rule is the inevitable discovery exception, i.e., if the evidence would have been inevitably discovered by other investigative techniques even without the original unconstitutionally obtained information, the evidence will not be excluded.

Question 139

What will Miranda violations exclude

Answer 139

While Miranda violations will exclude the defendants statements, physical fruits of Miranda violations will not be excluded.

Question 140

Is evidence obtained in violation of the defendants constitutional rights admissible to impeach the defendants trial testimony

Answer 140

Yes. Evidence obtained in violation of a defendants constitutional rights is admissible to impeach the defendants trial testimony when a defendant takes the stand and testifies in a manner inconsistent with such unconstitutionally obtained evidence.

Question 141

Are voluntary concessions made by defendant to police in violation of Miranda rights admissible at trial to impeach the defendants testimony?

Answer 141

Yes. Voluntary confessions made by a defendant to police in violation of Miranda rights are admissible at trial to impeach the defendants testimony.

Question 142

Are coerced confessions admissible at trial

Answer 142

Coerced confessions are not admissible for any purpose

Question 143

Can evidence obtained from an illegal search that is inadmissible in the prosecution’s case in chief admissible to impeach a witness’s testimony on cross examination?

Answer 143

No. Only the accused, i.e. the defendant herself, can be impeached this way.

Question 144

Good faith defense to the exclusionary rule?

Answer 144

The exclusionary rule does not apply if the police relied in good faith on a judicial opinion later changed by another opinion, a statute or ordinance later found to be unconstitutional, or an arrest warrant or search warrant issued by a neutral and detached magistrate but ultimately found to be unsupported by probable cause or otherwise defective.

Question 145

What are the exceptions to the good faith defense

Answer 145

The defective search warrant exception will not apply if the search warrant was obtained based on information discovered pursuant to an illegal search, the warrant fails to state with specificity the place and things to be searched, the underlying affidavit of the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, if the police officer lied to or misled the magistrate or if the magistrate is biased (magistrate is AG, magistrate is paid per warrant, the magistrate is not neutral or detached).

Question 146

Knock and announce violation?

Answer 146

Generally, under the fourth amendment, the police must knock and announce their presence and purpose before forcibly entering the premises to be searched. However, a knock and announce violation on a valid search warrant will not exclude evidence found during the search.

Question 147

May a state grant broader rights under its own constitution than are granted by the federal Constitution

Answer 147

Yes

Question 148

The fourth amendment prohibits

Answer 148

Unreasonable searches and seizures

Question 149

Unreasonable searches and seizures?

Answer 149

Unreasonable searches and seizures have been deemed to be those involving state action that intrude upon an individuals reasonable expectation of privacy.

Question 150

Seizure of a person?

Answer 150

A seizure of a person occurs only when a reasonable person would believe that she is not free to leave or terminate the encounter with the government.

Question 151

When are automobile stops constitutional

Answer 151

Automobile stops are constitutional if objectively justifiable regardless of office or subjective motivation

Question 152

Arrest?

Answer 152

An arrest occurs when the police take a suspect into custody against her will for purposes of interrogation and or prosecution

Question 153

May a police officer stop the person without probable cause for arrest

Answer 153

A police officer may stop a person without probable cause for arrest if the police officer has articulable and reasonable suspicion of past, present, or future criminal activity.

Question 154

What do the police need to make an arrest

Answer 154

The police need probable cause to make an arrest. At the time of arrest, the officer must have trustworthy facts sufficient for a reasonably prudent person to believe the suspect committed or was committing a crime.

Question 155

Is a warrant required to make an arrest?

Answer 155

A police officer may arrest a suspect for a felony without warrant if the officer has reasonable grounds to believe that the suspect committed the felony. A police officer may arrest a suspect for a misdemeanor without warrant, if the misdemeanor was committed in the officers presence.
Unless it is an emergency, a warrant is required to rest a suspect in her own home.

Question 156

Under the fourth amendment, does an arrest warrant authorize forcible entry

Answer 156

Under the fourth amendment an arrest warrant authorizes forcible entry only if the officers had reason to believe that the suspect was home at the time of entry.

Question 157

Is a warrant required to arrest a suspect in someone else’s house where the suspect spent the night

Answer 157

A warrant is required to arrest a suspect in someone else’s house where the suspect spent the night.

Question 158

Does an unlawful arrest have an impact on the subsequent criminal prosecution?

Answer 158

An unlawful arrest has no impact on the subsequent criminal prosecution but any evidence that is fruit of the unlawful arrest will be excluded.

Question 159

Questions to ask if you think there might be an unreasonable search and seizure

Answer 159

1. Was there a state action?
2. Does the defendant have standing, i.e., reasonable expectation of privacy?
3. Did the police have a valid search warrant?
4. If no valid search warrant, does an exception to the warrant requirement of the fourth amendment apply?

Question 160

Does the fourth amendment apply to private we paid police

Answer 160

The fourth amendment only applies to privately paid police if they have the power to arrest

Question 161

When is there automatic standing for challenging a government search and seizure

Answer 161

The court has found automatic standing where the search takes place in the suspects home, and a place burned by the suspect, or where the suspect is an overnight guest at the owner of the property.

Question 162

With respect to excluding evidence derived from an unreasonable search and seizure, when is there a presumption of standing that can be overcome?

Answer 162

When a suspect’s property is seized.
When the suspect is legitimately present on the premises searched. However, a guest who was on the premises for business is less likely to have a legitimate expectation of privacy then a social guest.

Question 163

With respect to excluding evidence from an unreasonable search and seizure, when is there no standing?

Answer 163

The following items have been deemed held out to the public and, as such, there is no reasonable expectation of privacy: actions and conversations in public, handwriting, paint on a car, account records held by bank, monitoring suspects vehicle and public thoroughfares, abandon property, open field, flyovers that do not involve technologically enhanced searches, scope of search limited to presence or absence of contraband.

Question 164

Do wire tapping and bugging require a warrant?

Answer 164

All wire tapping and bugging constitutes a search under the fourth amendment and therefore requires a warrant.

Question 165

What is the unreliable ear exception to the rule that wire tapping and bagging requires a warrant

Answer 165

Every person assumes the risk that the person with whom she is speaking is a government informant, so there is no fourth amendment claim if one party to the conversation has consented to the wire tapping or electronic eavesdropping.

Question 166

What are the exceptions to the rule that wire tapping and bugging requires a warrant?

Answer 166

Unreliable ear exception, pen registers, national security surveillance

Question 167

A pen register?

Answer 167

A pen register records only the numbers dialed on a telephone.

Question 168

What are the requirements for a valid warrant

Answer 168

A warrant must be issued on the basis of probable cause, specifically describe the place to be searched for the person or things to be seized and be issued by an unbiased magistrate. Note that just because a warrant was valid when signed by the magistrate does not necessarily mean it was valid when executed.

Question 169

Once the items identified in the warrant have been discovered does the warrant authorize further exploratory search of the premises

Answer 169

Once the items identified in the warrant have been discovered the warrant does not authorize further exploratory search of the premises.

Question 170

When can an investigatory search take place without a warrant?

Answer 170

• A search incident to lawful arrest.
• If police have probable cause that an automobile contains evidence of a crime or contraband, the police may search anywhere in the entire vehicle that might contain the item, including the truck.
• Plain view: The police officer is in a place that she is legally entitled to be, the evidence is in Plainview, the incriminating character of the evidence is immediately apparent, and the officer has lawful right to access the object itself.
• When the suspect gives voluntary and intelligent consent. No a search is valid even if the consenting party did not actually have the authority to consent as long as the police reasonably believe the party consenting have the authority to do so. A landlord or hotel manager does not have actual or apparent authority to allow officers to enter an apartment or hotel room occupied by another.
• Hot pursuit: A police officer chasing a fleeing felon may make a warrantless search and seizure and police are permitted to follow a suspect into a private dwelling.
• evanescent evidence: Evidence that would disappear if the police officer waited to obtain a warrant. Any bodily intrusion must be reasonable.
• Stop and frisk, a.k.a. terry stop
• Special-needs exception: The initial stop of a routine sobriety checkpoint is constitutional. Ordinary criminal wrong doing checkpoints are unconstitutional.

-

Question 171

What is the scope of a search incident to a lawful arrest?

Answer 171

Search must be limited to the suspect and her wingspan.
When the arrest takes place in the suspects home, the police may conduct protective sweeps.
DNA sampling is permitted if the person is arrested for committing or attempting to commit a serious crime.

Question 172

Automobile searches incident to arrest of recent occupant?

Answer 172

Police may search the entire interior compartment of the car but not the trunk incident to lawful arrest of a recent occupant of the car only if the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Absent a custodial arrest or probable cause, however, a traffic stop does not authorize a full blown search of a passenger compartment.

Question 173

May police search an arrestees personal belongings without warrant before incarceration

Answer 173

Yes

Question 174

Where may the police search if they have probable cause that the automobile contains evidence of a crime or contraband

Answer 174

If the police have probable cause that the automobile contains evidence of a crime or contraband the police may search The parts of the car and belongings of passengers, including closed containers, that the police have probable cause to believe contain evidence of a crime or contraband.

Question 175

Stop and Frisk, aka Terry Stop

Answer 175

An officer who has an articulable and reasonable suspicion to believe that a person was, is or will be, engaged in criminal activity may stop the suspect and conduct a warrant list frisk for weapons if the officer reasonably believes the person to be presently armed and dangerous. Police are also permitted to question a suspect during a stop in for us without reading the Miranda warnings. The stop must be no longer and no more intrusive than reasonably necessary.

Question 176

Scope of frisk

Answer 176

The protective frisk must be carefully limited search of the other clothing of the suspect in an attempt to discover weapons. If during a pat down the officer encounters an item that she reasonably believes based on its plain feel is a weapon or contraband, the officer may reach into the suspects clothing and remove the item. The Supreme Court has ruled that a police officer may feel the suspected item only once during a pat down to determine if it is a weapon or contraband.

Question 177

May police officer order a driver and the passengers to step out of a vehicle during a justified stop even without suspicion of criminal activity

Answer 177

Yes. If the officer believes that the occupants of the vehicle may be armed and dangerous, the officer may also conduct a frisk.

Question 178

What is required for searches and seizures conducted by the US government at the border

Answer 178

Neither citizens nor non-citizens have any fourth amendment rights against searches and seizures conducted by the US government at the border. No words, probable cause, or even reasonable suspicion is required.

Question 179

What is required for a roving patrol stop

Answer 179

A reasonable suspicion that a vehicle contains illegal aliens.

Question 180

What is needed for the issuance of a warrant for an administrative inspection or search

Answer 180

Issuance of a warrant for an administrative inspection or search requires a general and neutral enforcement plan, i.e. particular premises have not been targeted by inspectors

Question 181

Generally, is a warrant needed for administrative inspections and searches

Answer 181

The general rule is that inspectors must have a warrant for searches of private residences and commercial building the following administrative searches are permitted without a warrant:
Public school searches when school officials are acting alone and have reasonable grounds that the search will result in incriminating evidence either against the law or the rules of the school
Searches to seize spoiled or contaminated food
Searches of businesses within highly regulated industry
Searches of airline passengers
Search is a parolees in their homes
Searches of government employees desks and file cabinets

Question 182

What proceedings are exempt from the fourth amendment

Answer 182

Grand jury proceedings, parole revocation proceedings, immigration proceedings, or impeachment proceedings.

Question 183

Double Jeopardy?

Answer 183

Under the fifth amendment, there is a right to be free of double Jeopardy for the same offense. Once Jeopardy attaches, the defendant may not be retried for the same offense within the same sovereign.

Question 184

When does Jeopardy not attach

Answer 184

Jeopardy does not attach at a preliminary hearing, grand jury proceeding

Question 185

When does Jeopardy attach

Answer 185

Jeopardy attaches when the court unconditionally accepts a defendant’s guilty plea, in a jury trial when the jury selected is sworn in, and in a bench trial when the first witness is sworn in.

Question 186

In certain situations retrial is permitted even after Jeopardy has attached. What are these situations?

Answer 186

Hung jury, mistrial for manifest necessity (eg juror misconduct), Breach of plea bargain, re-trial after successful appeal unless the decision was reversed on insufficiency of the evidence.

Question 187

Does the attachment of jeopardy for the greater offense bar the retrial of a defendant for lesser included offenses

Answer 187

Yes

Question 188

Does the attachment of Jeopardy for a lesser offense bar the retrial of a defendant for greater included offenses

Answer 188

Yes with two exceptions

1. Unable to try both simultaneously, e.g., if the defendant is tried for battery and Jeopardy attaches but then the victim dies the defendant may be retried for murder
2. New evidence: The defendant may be retried for a greater included offense if the unlawful conduct needed to prove the greater offense had not occurred at the time of prosecution of a lesser offense or had not been discovered despite due diligence.

Question 189

Same sovereign?

Answer 189

State and federal courts are separate sovereigns. Courts of different states are separate sovereigns. State courts and municipal courts within the state are the same sovereign.

Question 190

Miranda

Answer 190

Under the fifth amendment, there is a right against self-incrimination, so Miranda warnings must be given to anyone in police custody before police interrogation.

Question 191

What does “in custody” mean for purposes of determining whether a defendants Miranda rights have been violated?

Answer 191

A person is in custody if she is not objectively free to terminate an encounter with the government. Note that there is no requirement that a defendant be informed of an arrest or a warrant. All that is required is that a person is in custody.

Question 192

Is voluntarily going to the police station for questioning considered custody?

Answer 192

No

Question 193

Is the initial period of a routine traffic stop considered custody for the purposes of Miranda warnings

Answer 193

No

Question 194

Are probation interviews considered custody for the purposes of Miranda warnings

Answer 194

No

Question 195

Our tax audit interviews considered custody for the purpose of Miranda warnings

Answer 195

No

Question 196

What is police interrogation for purposes of determining if the defendants Miranda rights have been violated?

Answer 196

Police interrogation is any conduct that the police know or should have known was likely to elicit in incriminating response from the suspect.
Miranda, however, does not apply where the interrogation is by an informant, who the defendant does not know is working for the police. For Miranda to apply, the defendant must know that a government agent is conducting the interrogation.

Question 197

What is the burden for exercising Miranda rights?

Answer 197

The suspect must clearly and unequivocally exercise her Miranda rights and these rights can be exercised at any time during questioning. “ I think I need a lawyer” is not an equivocal request for an attorney.

Question 198

Do the Miranda warnings need to be given to the suspect verbatim

Answer 198

The Miranda warnings do not need to be given to the suspect verbatim as long as the substance of the warnings is present.

Question 199

What are the Miranda warnings?

Answer 199

You have the right to remain silent. Anything you say can and will be used against you in a court of law.
You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.
Do you understand the rights I have just read to you?
With these rights in mind, do you wish to speak to me?

Question 200

Is the right to remain silent often specific

Answer 200

Yes. If the defendant asserts her right to remain silent, the police must abide by the defendant’s right and may not again attempt to obtain a waiver of these Miranda rights with respect to the same crime. In situations where the defendant has only exercised her right to remain silent and not her right to counsel, the Supreme Court has allowed the police to obtain a Miranda waiver for other, unrelated crimes.

Question 201

Is the right to attorney offense specific? (Miranda)

Answer 201

No. If the defendant unambiguously asserts her right to an attorney, the police cannot question her without either providing an attorney or obtaining a waiver of the right to counsel by asking the suspect again even if the interrogation is related to a completely different crime.

Question 202

Does an invocation of Miranda right to counsel expire?

Answer 202

The Supreme Court has concluded that if a suspect has been released from interrogative custody, the obligation of police to honor an indication of the Miranda right to counsel terminates after 14 days.

Question 203

What are the Miranda exceptions?

Answer 203

Waiver, spontaneous statement, pre-Miranda silence in some situations, non-testimonial fruits, substantial compliance, Public Safety exception, stop and frisk, grand jury proceedings.

Question 204

When is a waiver of Miranda rights valid

Answer 204

A waiver of Miranda rights is valid if the defendant knowingly, voluntarily, and intelligently waived her rights.

Question 205

Burden of proving waiver of Miranda rights?

Answer 205

The burden of proof is on the government for the waiver of Miranda rights by the suspect.

Question 206

What is a spontaneous statement (Miranda)

Answer 206

A spontaneous statement is a statement by the suspect that was not made in response to police interrogation

Question 207

When is pre-Miranda silence admissible

Answer 207

Silence before Miranda warnings is admissible to impeach the defendant if the silence is inconsistent with the defendants testimony at trial. If the defendants pre-Miranda silence meets the requirements for an admission by silence, it could be used as substantive evidence as well.

Question 208

Is post Miranda silence admissible to impeach

Answer 208

No.

Question 209

What is the Miranda Public Safety exception?

Answer 209

The police may conduct an interrogation without giving the suspect Miranda warnings if there is a reasonable concern for public safety. However, this exception only applies to statements made voluntarily (not coerced) by the suspect.

Question 210

Are coerced confessions admissible?

Answer 210

The due process clause of the 14th amendment requires that confessions be voluntary to be admissible. Voluntariness Is determined by looking at the totality of the circumstances. Specific considerations include whether the police subjected the suspect to coercive conduct and whether the conduct was sufficient to overcome the will of the suspect.
There is no fifth amendment protection if the confession is not incriminatory.

Question 211

What is the privilege against compelled testimony

Answer 211

Under the fifth amendment, every person has a right to refuse to answer any question at any proceeding (civil or criminal) whenever the response might tend to incriminate her

Question 212

If a person responds to incriminating questions in a civil proceeding can the person later bar that evidence in a criminal prosecution by invoking the fifth amendment.

Answer 212

No. If a person responds to incriminating questions in a civil proceeding, the person cannot later bar that evidence in a criminal prosecution by invoking the fifth amendment.

Question 213

Does the fifth amendment apply to physical evidence

Answer 213

No. The fifth amendment only applies to testimonial evidence not physical evidence.

Question 214

Is it constitutional for the prosecutor or judge to comment negatively on the defendants decision not to testify or remaining silent after the Miranda warnings

Answer 214

No

Question 215

How can a criminal defendant voluntarily waive the privilege against compelled testimony

Answer 215

A criminal defender voluntarily waives the privilege against compelled testimony by taking the witness stand to the extent necessary to subject the defendant to cross examination.

Question 216

When is privilege against compelled testimony eliminated?

Answer 216

• If there is no longer a possibility of incrimination.

- If the witness is granted adequate immunity from prosecution

Question 217

Use and derivative use immunity

Answer 217

The witness’s testimony and evidence derived from the testimony will not be used against the witness.
The prosecution, however, can prosecute the witness with evidence that was derived from an independent source.

Question 218

The witness cannot be compelled to provide potentially incriminating testimony unless the witness is granted…

Answer 218

Use and derivative use immunity

Question 219

Transactional immunity?

Answer 219

The witness cannot be prosecuted by the granting sovereign for any crimes that witness is required to testify about.
A non-granting sovereign may prosecute the witness but may not use the immunize testimony nor any other evidence derived from the testimony.
A witness need not be granted transactional immunity is compelled to provide potentially incriminating evidence.

Question 220

Which amendment provides the right to counsel at all criminal proceedings

Answer 220

The sixth amendment

Question 221

The prosecutor may not speak to a defendant without the defendants attorney present if

Answer 221

Defendant is represented by counsel. Formal adversarial judicial proceedings have commenced.
There is no custody requirement.

Question 222

Is the sixth amendment right to counsel offense specific

Answer 222

Yes. The sixth amendment right to counsel is offense specific, Meaning it only attaches for the crimes for which the defendant has been formally charged. It does not prevent the police from questioning the defendant about unrelated offenses.
(Distinguished from the fifth amendment right to counsel which is not offense specific.)

Question 223

Indigent defendants always entitled to appointment of counsel

Answer 223

Indigent defendants are not always entitled to appointment of counsel so the right to counsel includes the broader right to retain an attorney at the defendant’s own expense.

Question 224

Applicable stages of the sixth amendment right to counsel

Answer 224

Custodial police interrogation, post indictment interrogation, post charge lineups, preliminary probable cause hearings, arraignment, guilty pleas and sentencing, felony trials, misdemeanor trials if imprisonment or suspended jail sentence imposed, overnight recesses during trial, first appeal of rape, appeals of guilty pleas.

Question 225

What is the remedy for a sixth amendment right to an attorney violation at trial

Answer 225

Automatic reversal of convection.

Same remedy if privately retained legal counsel was disqualified incorrectly by the judge.

Question 226

What is the remedy for a sixth amendment right to counsel non-trial denial

Answer 226

For all non-trial denials of the right to counsel, the harmless error test will be applied.

Question 227

Effective assistance of counsel

Answer 227

The sixth amendment right to counsel also includes a right to effective counsel

Question 228

What must a claimant show to prove ineffective assistance of counsel

Answer 228

The claimant must show deficient performance that is truly unreasonable and that the result of the proceeding would have been different but for the deficiency.

Question 229

When does a pretrial identification violate due process

Answer 229

A pre-trial identification violates due process only the lineup was so unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Question 230

Exceptions to the suspect ‘s right to the presence of an attorney at any post charge in person lineup

Answer 230

The right to counsel does not apply when the witness is being shown photographs of the suspect or the police takes physical evidence from the suspect

Question 231

What is the remedy for unconstitutional lineups

Answer 231

An improper out of court identification procedure may require suppression of in court testimony if the unconstitutional lineup produces a substantial likelihood of irreparable misidentification

Question 232

When may a witness make an import identification despite the existence of an unconstitutional pretrial identification

Answer 232

If the in-court identification has a reliable independent source under a multi factor inquiry.

Question 233

There is a right to indictment by grand jury under what amendment

Answer 233

Under the fifth amendment, there’s a right to indictment by grand jury for felonies in federal court, but this rate has not been incorporated into the 14th amendment and therefore is not constitutionally imposed on the states.

Question 234

May a grand jury indict a defendant based on evidence that would be inadmissible at trial

Answer 234

Yes. The fourth amendment exclusionary rule does not apply to federal grand jury’s, so a grand jury may indict a defendant based on evidence that would be in admissible at trial. A grand jury may consider other inadmissible evidence as well, e.g. hearsay.

Question 235

For grand jury proceedings, does a defendant have right to notice of grand jury proceeding, a right to be present at grand jury proceedings, A right to counsel it called to testify, a right to confront witnesses, a right to introduce evidence

Answer 235

No.

Question 236

A defendant has a right to a speedy trial under what amendment

Answer 236

The sixth amendment provides each defendant the right to a speedy trial. The sixth amendment is applied to the state through its incorporation into the due process clause of the 14th amendment.

Question 237

When does the right to a speedy trial attach

Answer 237

The right to a speedy trial attaches post charge. There is no right to a speedy trial pre-arrest.

Question 238

What is the standard of review for a speedy trial

Answer 238

Whether the defendant has been given a speedy trial depends on analysis of the totality of the circumstances

Question 239

What is the remedy for a violation of the right to a speedy trial

Answer 239

The remedy for a violation of the right to speedy trial is dismissal of the case with prejudice

Question 240

What amendment provides that Excessive bail shall not be required

Answer 240

The eighth amendment provides that excessive bail shall not be required.
In 2019 the Supreme Court ruled that the excessive fines clause of the eighth amendment applied to the states. While that case did not explicitly extend the excessive bail prohibition to the states, it is very likely that the court would do so if it faced such a case.

Question 241

May bail issues be appealed immediately

Answer 241

In most states and in Federal court, Bill issues may be appealed immediately. This is an exception to the final judgment rule.

Question 242

When is preventative detention constitutional

Answer 242

Preventive detention is constitutional if the court determines at a hearing on the issue that the defendant either poses a danger to society or is likely to fail to appear at trial.

Question 243

There’s a constitutional right to a trial by jury for

Answer 243

All non-petty offenses. Any offense that carries a potential sentence of over six months is a non-petty offense.

Question 244

In 2020, the Supreme Court held that what amendment requires a unanimous jury verdict to support a conviction for a criminal offense?

Answer 244

The sixth amendment

Question 245

What is the right to Venire

Answer 245

A defendant has a right to have the jury selected from a representative cross-section of the community. It’s fair cross-section requirement does not, however, apply to individual juries.

Question 246

A lawyer may exclude a prospective juror by exercising any of the lawyers finite peremptory challenges for any reason other than

Answer 246

Race or gender

Question 247

May the prosecution exclude a juror because the juror expresses general doubt about the appropriateness of the death penalty as punishment

Answer 247

The prosecution may not automatically exclude a juror because the juror expresses a general doubt about the appropriateness of the death penalty as punishment. A juror however may be excluded if the jurors opposition to the death penalty is so extreme that it would substantially impair the jurors ability to follow the courts instructions.

Question 248

Can a judge grant a directed verdict for the prosecution

Answer 248

No because doing so would violate the defendant’s sixth amendment right to a trial by jury.

Question 249

A defendant may only enter a guilty plea after the judge determines, on the record, that there has been

Answer 249

Oh advisement at the constitutional rights that will be waived and the consequences of the defendant guilty plea.
The defendant must understand the nature of the charges and the crucial elements of the crimes charged.
The defendant must be advised of the maximum possible sentencing any mandatory minimum.
The defendant must be advised that she has a right to plead not guilty and go to trial.

Question 250

What is the remedy for an invalid plea

Answer 250

The plea will be withdrawn and the defendant may plead and you

Question 251

If the prosecution fails to a pull the plea-bargain what right does the defendant have

Answer 251

The defendant has a right to rescission or specific performance

Question 252

The death penalty can be imposed only under a statutory scheme that

Answer 252

Give the judge or jury reasonable discretion, full information concerning defendants, and guidance and making the decision

Question 253

Which amendment prohibits cruel and unusual punishment

Answer 253

The eighth amendment

Question 254

It is a violation of the eighth amendment to execute…

Answer 254

A person who was under 18 years old at the time the crime was committed.
A person who was mentally disabled at the time the crime was committed.
A person who is legally insane at the time of execution even if the person was sane when the crime was committed.

Question 255

The Supreme Court has held that an execution process cannot

Answer 255

Include torture or a lingering death.

Question 256

The Supreme Court has establish additional limitations on the use of a death penalty for defendants convicted of a felony murder. What are they?

Answer 256

The Supreme Court has ruled that a defendant convicted for felony murder cannot be sentenced to death if she neither took life, attempted to take life, nor intended to take life.
The Supreme Court, however, also held that a defendant convicted of felony murder can be sentenced to death if the defendant was a major participant in the underlying felony and acted with reckless indifference to human life.

Question 257

What is the sixth amendment confrontation clause

Answer 257

Confrontation clause of the sixth amendment provides that an all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against her.
The 14th amendment makes the right to confrontation applicable to the states and not just the federal government. The right only applies to criminal prosecutions, not civil cases or other proceedings

Question 258

To stand trial, a criminal defendant must

Answer 258

Have a rational and factual understanding of the proceedings against her and must be able to consult with and assist counsel in her own defense.

Question 259

When will competency to stand trial be determined

Answer 259

A judge will evaluate competency early in the process, usually with the assistance of experts.

Question 260

What are the specific intent crimes?

Answer 260

First-degree murder, assault as attempted battery, burglary, robbery, larceny, embezzlement, false pretenses, forgery, solicitation, attempt, conspiracy.

Question 261

What are the general intent crimes

Answer 261

Assault as threat, battery, rape, kidnapping, false imprisonment.

Question 262

What are the Malicious crimes

Answer 262

Common law murder and arson

Question 263

What are the strict liability defenses

Answer 263

Insanity, involuntary intoxication, duress