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Crimes Flashcards

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1
Q

What are the four elements of a crime?

A
  1. Actus reus
  2. Mens rea
  3. Concurrence
  4. Causation
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2
Q

Define actus reus

A

A voluntary physical act or failure to act where there is a legal duty to act

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3
Q

An actus reus can be either a _________ or __________.

A

Commission

Omission

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4
Q

Define commission

A

Voluntary physical act

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5
Q

When is a physical act voluntary?

A

Bodily movement was the product of the actor’s own volition

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6
Q

Give some examples of nonvoluntary acts.

A
  1. Act not the product of actor’s will
  2. Reflex/convulsion
  3. Bodily movement during unconsciousness or sleep
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7
Q

When is possession a voluntary act?

A

If D was aware of her control of the contraband long enough to have been able to terminate possession

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8
Q

Legal duties to act can be created by:

A
  1. Statute
  2. Contract
  3. Relationship between parties
  4. Voluntary assumption of care
  5. Creation of peril
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9
Q

What liability does a good Samaritan take on by volunteering to help?

A

Obligation to act with a reasonable standard of care

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10
Q

What is the mens rea requirement for a crime?

A

D must have had a guilty state of mind at the time of the act

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11
Q

What is specific intent in connection to mens rea?

A
  1. Intent to preform AND
  2. Specific intent to cause some further objective
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12
Q

What defenses are only available for specific intent crimes?

A
  1. Diminished capacity
  2. Unreasonable mistake of fact
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13
Q

Describe the diminished capacity defense.

A

An impaired mental condition - short of insanity - caused by intoxication, trauma, or disease that prevents a person from having the mental state necessary to be held responsible for a crime

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14
Q

Mistake of fact does not have to be _________ to be a valid defense to specific intent crimes

A

Reasonable

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15
Q

What is the specific intent required for first-degree murder?

A

Premeditation

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16
Q

The defense of diminished capacity or unreasonable mistake of fact will reduce first-degree murder to _________.

A

Second-degree murder

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17
Q

Assault is a specific intent crime only if ___________.

A

Assault is defined as an attempted battery

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18
Q

What is the specific intent required for burglary?

A

Intent to commit a felony inside the victim’s dwelling

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19
Q

What is the specific intent required for robbery?

A

Intent to permanently deprive victim of her property

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20
Q

Describe conditional intent as it relates to robbery.

A

Defendant cannot negate proscribed intent by requiring the victim to comply with a condition the defendant has no right to impose (e.g. i will hurt you unless you give me your wallet)

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21
Q

What specific intent is required for larceny?

A

Intent to permanently deprive victim of her property

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22
Q

What specific intent is required for embezzlement?

A

Intent to defraud

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23
Q

What specific intent is required for false pretenses?

A

Intent to defraud

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24
Q

What specific intent is required for forgery?

A

Intent to defraud

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25
Q

What specific intent is required for solicitation?

A

Intent to have the person solicited complete the crime

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26
Q

What is an inchoate offense?

A

Type of crime committed by taking a punishable step toward the commission of another crime

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27
Q

What is the specific intent required for attempt?

A

Intent to complete the underlying offense

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28
Q

What is the specific intent required for conspiracy?

A

Intent to have the crime completed

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29
Q

What is general intent?

A

Intent to perform or cause the act that constitutes the actus reus

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30
Q

A jury may infer the required general intent from ___________.

A

The fact that the defendant committed the act

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31
Q

When is assault a general intent crime?

A

When assault is defined as a threat

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32
Q

Give examples of general intent crimes

A
  1. Battery
  2. Rape
  3. Kidnapping
  4. False imprisonment
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33
Q

A mistake must be ______ to be a valid defense to a general intent crime.

A

Reasonable

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34
Q

Intoxication must be ________ to be a valid defense to a general intent crime.

A

Involuntary

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35
Q

What is malice?

A

Intentional or reckless disregard of obvious or known risk

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36
Q

Defenses to ___________ do not apply to malicious crimes.

A

Specific intent crimes

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37
Q

Give examples of malicious crimes

A
  1. Common law murder
  2. Arson
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38
Q

What is strict liability?

A

No intent is required for criminal liability

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39
Q

How do you identify strict liability statutes?

A

Statutes do not contain any adverbs modifying the action that is prohibited

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40
Q

What defenses are related to intent (and capacity) for strict liability crimes?

A
  1. Insanity
  2. Involuntary intoxication
  3. Duress
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41
Q

Mistake of fact, whether reasonable or unreasonable, is not a defense for ___________.

A

Strict liability crimes

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42
Q

What is vicarious liability?

A

A type of strict liability that may be imposed upon one person for the act of another

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43
Q

What is the most common type of vicarious liability?

A

An employer is held liable for the acts of an employee

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44
Q

What must be found for vicarious liability to be found?

A

Defendant had the ability to control the person who committed the crime

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45
Q

What kind of punishment can vicarious liability incur?

A

Fines only

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46
Q

What is transferred intent?

A

When a defendant intended to harm one person but actually causes harm to another person, the intent is transferred to the victim actually harmed

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47
Q

Who can be the victim of attempt when transferred intent is involved?

A

Whoever the crime was attempted on, not who the crime actually occurred to

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48
Q

You cannot transfer intent between ___________.

A

Different crimes

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49
Q

What are the four mental states defined by the Model Penal Code?

A
  1. Purposely
  2. Knowingly
  3. Recklessly
  4. Negligently
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50
Q

What is the MPC standard for “purposely”?

A

Conscious object to cause such result

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51
Q

What is the MPC standard for “knowingly”?

A

Aware such result practically certain

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52
Q

What defense is never available for any MPC mental state?

A

Mistake of law

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53
Q

Under MPC mental states, what defense is always available?

A

Reasonable mistake of fact

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54
Q

Unreasonable mistake of fact is a defense for every MPC mental estate except for ____________.

A

Negligently

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55
Q

What is the MPC standard for “recklessly”?

A

Conscious disregard of substantial & unjustifiable risk

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56
Q

What is the MPC standard for “recklessly”?

A

Conscious disregard of substantial & unjustifiable risk

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57
Q

A risk is substantial and unjustifiable if ___________.

A

Considering D’s conduct and known circumstances, the conduct deviates grossly from conduct that a law-abiding person would observe

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58
Q

What is the MPC standard for “negligently”?

A

D should be aware of substantial & unjustifiable risk

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59
Q

What is the concurrence requirement for crimes?

A
  1. Actus reus and mens rea must occur concurrently
  2. Mental state must cause the act
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60
Q

What is the causation requirement for crimes?

A

D’s actus reus caused the harmful result

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61
Q

What test is used for actual cause?

A

“But for” test

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62
Q

What is the “but for” test for causation

A

Whether the harm would not have occurred “but for” the defendant’s act/failure to act

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63
Q

What is the common law “year and a day rule” for murder?

A

The death of a victim must occur within 1 year and 1 day of the injury or the defendant cannot be found guilty of homicide

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64
Q

In order for someone to have caused the death of another person, they need not actually kill them; they need only _____________.

A

Accelerate the death process

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65
Q

What is proximate cause?

A

Limits liability to natural and probable consequences that bear reasonable relationship to the actor’s conduct.

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66
Q

What is the general rule under proximate cause analysis?

A

D is guilty for all natural/probable consequences of her act/omission

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67
Q

What is a dependent intervening cause?

A

A cause that is a consequence of D’s prior wrongful conduct; does not break the chain of causation

ex: falling while attempting to escape

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68
Q

When does an intervening cause break the chain of causation?

A

When the intervening force is so out of the ordinary that it is no longer fair to hold D criminally responsible for the outcome

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69
Q

Where may a crime be prosecuted?

A
  1. Any state where act constituting an element of the offense was committed
  2. Any state where the act caused a result
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70
Q

What is the standard for elements of a crime?

A

Beyond a reasonable doubt

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71
Q

What does an alibi do?

A

Negates an essential element of the crime; not a traditional defense

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72
Q

A directed verdict for __________ would be unconstitutional.

A

The prosecution

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73
Q

Why would a directed verdict for the prosecution be unconstitutional?

A

Would violate D’s 6th Amendment right to trial by jury

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74
Q

It is a violation of due process to give a mandatory ____________ in a criminal case on an element of a charged crime

A

Jury presumption

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75
Q

Why is a mandatory jury presumption unconstitutional?

A

Shifts burden of proof to defendant

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76
Q

When might a mandatory presumption not be a per se violation of the Due Process Clause?

A

When it is rebuttable

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77
Q

What is a prosecution’s duty toward defenses?

A

Prosecution must disprove every element of a defense raised by defendant beyond a reasonable doubt

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78
Q

What is the only defense that puts the burden of proof on the defendant?

A

Insanity defense, but it depends on the jurisdiction

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79
Q

What are factors?

A

Modifiers that increase the penalties for a crime

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80
Q

What is the standard for a factor?

A

Beyond a reasonable doubt

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81
Q

What constitutes a felony?

A

May be punished by more than one year in prison

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82
Q

What constitutes a misdemeanor

A

Maximum punishment may not exceed one year in prison

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83
Q

When two offenses are greater and lesser included offenses, a defendant cannot ___________.

A

Be convicted of both crimes for the same transaction

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84
Q

What must a state show in order to prove attempt?

A
  1. D intended to commit the crime
  2. D committed an overt act beyond mere preparation
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85
Q

Regardless of the underlying crime, attempt is always a _______ intent crime.

A

Specific

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86
Q

An unequivocal ___________ is insufficient for the actus reus required by attempt.

A

Expression of criminal intent

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87
Q

What is the MPC standard for attempt?

A

Substantial step towards completion

(broader than common law)

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88
Q

What is the common law standard for attempt?

A

Dangerous proximity to success

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89
Q

What happens to an attempt charge if the person actually completes the crime?

A

Prosecutor may convict the defendant for attempt or the completed crime, but not both

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90
Q

What kind of impossibility is a defense to attempt?

A

Legal impossibility

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91
Q

When is an attempt considered to be a legal impossibility?

A

When the defendant has completed all of her intended acts but her acts fail to constitute a crime

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92
Q

What kind of impossibility is never a defense to attempt?

A

Factual (e.g. dummy bomb)

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93
Q

Abandonment can be a defense to attempt, but common law and the MPC differ. How?

A

Common law: abandonment is no defense

MPC: Voluntary abandonment is a defense

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94
Q

What is the actus reus for solicitation?

A

Inciting another to commit a crime

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95
Q

What is the mens rea for solicitation?

A

Having the specific intent to incite another person to commit a crime

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96
Q

Can solicitation be merged with other crimes?

A

Not with conspiracy or a completed crime

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97
Q

Can withdrawal be a defense for solicitation?

A

No, but it does avoid accomplice liability

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98
Q

What are the requirements of conspiracy?

A
  1. An agreement to commit a crime between 2+ people
  2. Intent to enter an agreement
  3. Intent to pursue an unlawful objective
  4. overt act in furtherance of the conspiracy
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99
Q

A person cannot conspire with an undercover officer unless _________-

A

There is another co-conspirator

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100
Q

What is the Wharton rule?

A

Where 2+ people are necessary to commit a crime, there cannot be a conspiracy to commit that crime unless more than the required number of persons are involved.

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101
Q

Can a husband and wife conspire?

A

At common law, no, but virtually all courts have rejected this rule

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102
Q

Can a corporation conspire with an agent?

A

No conspiracy between a corporation and a single agent acting on the corporation’s behalf

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103
Q

What happens if all co-conspirators but one are acquitted?

A

Remaining defendant cannot be convicted of conspiracy

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104
Q

What happens if only one co-conspirator is arrested?

A

Defendant can still be convicted

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105
Q

Can intent to agree to conspiracy be inferred?

A

Yes, from actions; words are not necessary

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106
Q

When can circumstantial evidence show intent to enter into an agreement?

A

As long as the circumstantial evidence (taken in the light most favorable to the prosecution) is sufficient to allow a rational jury to find that there was a conspiratorial agreement beyond a reasonable doubt

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107
Q

When is there an intent to pursue an unlawful objective?

A

When there is a meeting of the minds between at least two people to pursue an unlawful objective

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108
Q

What is the unilateral conspiracy approach?

A

MPC allows defendant to be convicted of conspiracy even if all other co-conspirators are protected/undercover

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109
Q

Each co-conspirator is liable for the crimes of all other co-conspirators if ___________.

A

The crimes were reasonably foreseeable and committed in furtherance of the conspiracy even if unintended

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110
Q

A co-conspirator need not be _________ at the commission of each crime.

A

Present

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111
Q

The arrest of one co-conspirator does not automatically terminate the conspiracy where _________________.

A

Other co-conspirators continue to carry out the goals of the conspiracy

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112
Q

What crimes are a co-conspirator liable for?

A
  1. Committed in furtherance of conspiracy
  2. Crimes were a natural and probably consequence of the conspiracy
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113
Q

What happens if someone goes through with a crime they conspired to commit?

A

Defendant can be convicted of both conspiracy and crime itself

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114
Q

What is a chain conspiracy?

A

A conspiracy that consists of a series of agreements that are part of a single larger scheme. The parties share a community of interest, so the chain is one large conspiracy.

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115
Q

What is the conspiracy of interest test?

A

A single conspiracy will be found if each participant:
1. Knows that the other participants exist
2. Realize they have a community of interest

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116
Q

______________ is not required in the community of interest test

A

Knowledge of others’ precise identity

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117
Q

What are hub-and-spoke conspiracies?

A

One participant enters reasonable independent agreements with different people

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118
Q

When will hub-and-spoke conspiraies be regarded as one conspiracy

A

If there is a community of interest

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119
Q

What kind of mistake is eligible as a defense to conspiracy?

A

Mistake of fact

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120
Q

When is withdrawal effective as a defense to conspiracy?

A
  1. D takes an affirmative act to notify all co-conspirators AND
  2. Sufficient time for co-conspirators to abandon crime
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121
Q

What happens if someone successfully withdraws from conspiracy?

A

Not a defense to prior conspiracy or already-committed crimes, but no liability for further crimes of conspiracy

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122
Q

When will someone be guilty under accomplice liability

A

When D aids, abets, encourages, or facilitates commission of a crime with the intent that the crime be committed

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123
Q

What proof is required for a conviction for accomplice liability?

A
  1. Proof that accomplice aided principal’s crime
  2. Accomplice acted with culpable mental state
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124
Q

Accomplice liability is not a separate offense, but rather ________.

A

An alternative way to be found guilty of the primary offense

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125
Q

Most jurisdictions recognize a lesser charge of accessory ________.

A

After the fact

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126
Q

In regards to accomplice liability, who is the principal?

A

Party who actually engages in the criminal act/omission

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127
Q

There is no requirement that the principal __________ in order to find accomplice liability

A

is actually prosecuted

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128
Q

What changes if someone is an acccessory after the fact?

A

Not liable for the principal crime but rather the less serious offense of accessory after the fact

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129
Q

Just because someone was present at the scene of the crime does not mean they were _______.

A

An accomplice

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130
Q

Failure to _______ does not make someone an accomplice unless _______.

A

intervene

There was an affirmative duty to intervene

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131
Q

_______ alone are sufficient to meet the actus reus requirement of being an accomplice.

A

Words alone

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132
Q

What is the mens rea requirement of accomplice liability?

A
  1. Intent to assist the primary party AND
  2. Intent that the primary party commit the charged offense
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133
Q

In some jurisdictions, a defendant cannot have accomplice liability for recklessness or negligence because __________.

A

One cannot have intent for negligence or reckless killing

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134
Q

In most jurisdictions, courts hold accomplices responsible for crimes like manslaughter if ____________.

A

Accomplice intentionally provided assistances and acted with recklessness/negligence

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135
Q

Intent can be inferred when the accomplice renders legal assistance if:

A
  1. Acomplice has knowledge of illegal purpose
  2. Accomplice has stake in the outcome
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136
Q

The scope of liability for accomplices includes:

A
  1. Liability for intended crime
  2. Liability for all other foreseeable crimes
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137
Q

What is battery?

A

The intentional, reckless, or criminally negligent application of unlawful force to another resulting in either bodily injury or offensive touching.

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138
Q

Battery is a _______ intent crime.

A

General

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139
Q

What is the actus reus for battery?

A

Any harmful or offensive touching

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140
Q

What is the mens rea of battery?

A

D had intent to make physical conduct (or at least be acting in a manner that is reckless or criminally negligent)

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141
Q

Assault is either:

A
  1. Attempt to commit battery OR
  2. Intentional creation of reasonable apprehension of imminent bodily harm
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142
Q

Attempted battery is a __________ intent crime

A

Specific

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143
Q

What is the mens rea of attempted battery?

A

Intent to commit a battery

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144
Q

What is the mens rea of assault as threat?

A

Intent to create reasonable apprehension of imminent bodily harm

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145
Q

_______ alone will almost never suffice for assault as threat.

A

Words

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146
Q

What are conditional threats?

A

Conditional threats where D threatens harm only if victim doesn’t obey D’s demands

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147
Q

Conditional threats are sufficient for assault liability UNLESS:

A
  1. D had legal right to compel victim to perform the action OR
  2. Condition expressly negates intent (e.g. ‘if you weren’t a girl, I’d kick your ass’)
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148
Q

What is mayhem?

A

D intentionally maims or permanently disables a victim

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149
Q

Modernly, mayhem is treated as ____________

A

A form of aggravated battery

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150
Q

What is homicide?

A

The unlawful killing of another person

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151
Q

What are the two principal types of homicide?

A
  1. Murder
  2. Manslaughter
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152
Q

What is murder?

A

Unlawful killing of another human being with malice aforethought

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153
Q

First-degree murder is created by ________.

A

Statute

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154
Q

First-degree murder typically consists of ____________.

A

Intentional, deliberate and premeditated killing

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155
Q

What is premeditation and deliberation

A

Killing is done after a period of time for prior consideration

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156
Q

The duration of time to reflect for 1st-degree murder should not _________.

A

be arbitrarily fixed

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157
Q

Premeditation and deliberation requires merely _________.

A

A moment’s reflection upon the killing

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158
Q

Deliberation and premeditation are NOT the same as intent _________.

A

To kill

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159
Q

What are the emotional requirements for first-degree murder?

A

D killed another person in a calm and calculated fashion

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160
Q

Brutality of killing cannot in itself support a finding that ____________.

A

Killer acted with premeditation and deliberation

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161
Q

What is second-degree murder?

A

Intentional killing of a person with malice aforethought

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162
Q

Second-degree murder doesn’t require the specific intent _______.

A

to kill

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163
Q

Malice aforethought exists if:

A
  1. There is no excuse to justify the killing
  2. There is no adequate provocation can be found AND
  3. The killing is committed with certain required states of mind
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164
Q

What’s the difference between first- and second-degree murder?

A

First-degree murder requires a statute

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165
Q

What states of mind qualify for malice aforethought

A
  1. Intent to kill
  2. Intent to commit great bodily injury
  3. Depraved heart killing
  4. Intent to commit a felony
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166
Q

A jury will look to ________ to find intent to kill.

A

Totality of the circumstances

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167
Q

What is the deadly weapon doctrine?

A

Where death is caused by the purposeful use of a deadly weapon, the intent to kill is implied

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168
Q

What is intent to commit great bodily injury?

A

Causing another’s death by actions intended to cause serious bodily injury short of death

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169
Q

Another term for depraved heart killing is _____________.

A

Wanton and willful disregard of human life

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170
Q

A depraved heart killing will be found where ____________.

A

Defendant was aware of the unjustifiably high risk to human life but chose to proceed anyway

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171
Q

The rule for intent to commit felony is ____________.

A

Felony murder rule

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172
Q

What is the felony-murder rule?

A

A person can be found guilty of a killing that occurs during the commission of an underlying felony that is inherently dangerous

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173
Q

Which deaths during the commission of a felony will be considered murder under the felony-murder rule?

A
  1. Reasonably foreseeable deaths
  2. Must have occurred before D reached a point of temporary safety
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174
Q

A defendant cannot be found guilty of felony murder if they are not ____________.

A

Guilty of the underlying felony

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175
Q

A felony must be independent of __________ for the felony-murder rule to apply.

A

Independent of the original felony

e.g. you can’t have felony-murder for homicide

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176
Q

For the felony-murder rule to apply, the death must have been ____________.

A

A reasonably foresseable results of a felony

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177
Q

Co-felons will be liable for a killing committed by one felon If the killing was:

A
  1. Committed in furtherance of the felony
  2. A natural and probably consequence of the felony
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178
Q

Liability for a felony murder ends when:

A

1, The felony terminates
2. The felons reach a place of temporary safety after the felony

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179
Q

A felon is not guilty of felony murder when one of their co-felons is murdered by:

A
  1. Police
  2. Third party (such as victim)
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180
Q

When will a co-felon be guilty of felony murder because the police or third party killed someone?

A
  1. The decedent is an innocent party/bystander AND
  2. Defendant caused the death (e.g. initiating gun battle)
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181
Q

D convicted for felony murder cannot be sentenced to death if:

A
  1. Did not take life
  2. Did not attempt to take life AND
  3. Did not intend to take life
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182
Q

Voluntary manslaughter would be murder but for the existence of:

A
  1. Adequate provocation
  2. Imperfect self-defense OR
  3. Diminished capacity
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183
Q

Adequate provocation is also known as ________

A

Heat of passion

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184
Q

What elements are required for finding adequate provocation

A
  1. D provoked by V
  2. Sudden and intense passion in reasonable person
  3. No reasonable time to cool off
  4. D did not cool off
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185
Q

_________ words are not sufficient to create heat of passion, but _________ words are.

A

Insulting

Descriptive

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186
Q

What is the imperfect self-defense doctrine?

A

Someone engaged in good faith but unreasonable self-defense using deadly force.

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187
Q

What is the effect of the imperfect self-defense doctrine?

A

Mitigating defense; reduces murder to voluntary manslaughter

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188
Q

Diminished capacity can reduce murder to voluntary manslaughter unless it stems from ___________.

A

Voluntary intoxication

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189
Q

Involuntary manslaughter is an unintentional killing that results from either:

A
  1. Criminal negligence
  2. Misdemeanor-murder
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190
Q

What is criminal negligence?

A

Exceeds tort negligence but is less than the reckless indifference of depraved heart murder

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191
Q

In order to find criminal negligence, it is not necessary that the defendant ____________.

A

Was aware that her actions entailed a high degree of risk to human life

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192
Q

What’s the difference between criminal negligence and depraved heart murder?

A
  1. Subjective awareness of actions causing risk is req. for heart murder
  2. Wanton and reckless disregard for human life is req. for heart murder
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193
Q

If a misdemeanor is not ______, then a death must have been foreseeable for involuntary manslaughter.

A

inherently wrong

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194
Q

What is “malum in se”?

A

Inherently wrong

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195
Q

What happens if a death results from a felony not listed in the felony murder statute?

A

Involuntary manslaughter

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196
Q

What is rape?

A

Sexual intercourse without the victim’s consent by force or threat of force

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197
Q

At common law, only ______ is considered sexual penetration, while MPC also recognizes _________.

A

Vaginal intercourse

Anal penetration

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198
Q

__________ penetration will qualify as rape if done without consent

A

The slightest

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199
Q

In order to have a defense to rape, defendant must have had a reasonable belief that __________.

A

Victim consented

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200
Q

Lack of consent can exist when a victim is incapable of consenting due to:

A
  1. Unconsciousness
  2. Intoxication
  3. Mental incapacity
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201
Q

If consent is obtained via ____, it is nonetheless regarded as valid consent

A

Fraud

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202
Q

When will fraud not create consent to a rape?

A

Due to the fraud, victim did not even realize she is having sexual intercouse.

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203
Q

When will fraud not create consent regarding rape?

A

Due to the fraud, victim does not even realize that she is having sexual intercourse

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204
Q

At common law, _____ could not be found guilty of ______. Modernly, this exemption has been abolished.

A

A husband

His wife

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205
Q

What is statutory rape?

A

Sexual intercourse with a person under the age of consent

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206
Q

Neither ________ nor ____________ is a valid defense against statutory rape.

A

Consent

Mistake of fact as to the victim’s age

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207
Q

What is false imprisonment?

A

Unlawful confinement of a person

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208
Q

Confinement of a person is unlawful unless:

A
  1. It is authorized by law
  2. Person consents to confinement
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209
Q

For consent to confinement to be lawful, consent must be ____________

A

Freely given by a person with the capacity to consent

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210
Q

What is confinement?

A
  1. Forcing the victim to go where she does not wish to go OR
  2. Forcing the victim to remain where she does not wish to remain
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211
Q

When is preventing a person from going where she desires NOT confinement?

A

If alternative routes are available to her

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212
Q

What is kidnapping?

A

False imprisonment of the person or concealment of a person in an undisclosed location

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213
Q

In order to satisfy the movement requirement. of kidnapping, the movement of the victim must not be _________.

A

Related to some other offense (e.g. rapist forces victim into car)

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214
Q

What is the MPC requirement for movement under kidnapping?

A

Defendant moves the victim a “substantial distance” from the vicinity where she is found

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215
Q

What is larceny?

A
  1. Wrongful taking and
  2. carrying away
  3. of another’s tangible personal property
  4. with the intent to permanently deprive
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216
Q

When is a taking wrongful?

A

Taking without consent by trespass or misrepresentation

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217
Q

_________ will satisfy the “carrying away” element of larceny

A

The slightest movement

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218
Q

Larceny only requires that tangible property be taken from the lawful possessor; _________ is not required.

A

Transfer of title

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219
Q

Larcent is a _______ intent crime.

A

Specific

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220
Q

Can you commit larceny when recovering your own property or the property of someone who authorized you to take it back?

A

No; specific intent not found

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221
Q

What specific intent is required for larceny?

A

Intent to permanently deprive

222
Q

What is the doctrine of “continuing trespass”?

A

Trespass continues from original taking until the moment D devices leaves the property; intent can be found at any time during that stretch.

This can negate intent to return property

223
Q

What defences are available for larceny?

A
  1. Intent to return property
  2. Mistakenly believes property is her own
224
Q

What is embezzlement?

A
  1. Fraudulent
  2. conversion
  3. of another’s personal property
  4. by a person in lawful possession
225
Q

Embezzlement is a _________ intent crime

A

Specific

226
Q

What specific intent is required for embezzlement?

A

D intended to defraud

227
Q

What defense is available for embezzlement?

A

D intends to restore the EXACT item of property taken

228
Q

When is intent to restore property not a defense to embezzlement?

A
  1. Intent to restore similar property instead of exact
  2. Intent to repay money
229
Q

What is conversion?

A

Converts goods to her own use and excludes owner from use

230
Q

For the purposes of embezzlement, lawful possession can result from:

A
  1. Fiduciary relationship OR
  2. Trust agreement
231
Q

For embezzlement liability, it is important to distinguish between:

A
  1. Low-level employees (may not have lawful possession)
  2. High-level possession
232
Q

What is false pretenses?

A
  1. Obtaining title
  2. to another’s personal property
  3. by an intentional false statement of past or present facts
  4. with the specific intent to defraud
233
Q

Once title has passed to D illegally, D can only be found guilty of __________.

A

False pretenses

234
Q

False pretenses only occurs if there is a false statement of _______, not ______.

A

Fact

Opinion

235
Q

False representation does not create false pretenses alone; the false representation must actually ___________.

A

Cause the owner to pass title

236
Q

What is commercial puffery?

A

I dunno, but it’s not false pretenses

237
Q

What is the willful blindness doctrine?

A

If defendant is aware of a fact’s existence and deliberately avoids learning the truth, they have knowledge of the fact.

Some states reject this; require actual knowledge

238
Q

What is robbery?

A
  1. Larceny plus
  2. Force/threat of immediate harm
239
Q

If someone is convicted of larceny, they cannot be convicted of robbery because ________.

A

Larceny is an element of robbery

240
Q

Threat of ______ does not meet the requirement of force or threat of immediate harm for robbery.

A

Future harm

241
Q

Robbery requires that the victim be ____________.

A

Aware of intimidation for robbery

242
Q

What is forgery?

A
  1. Making or altering of
  2. a writing with apparent legal significance
  3. so that it is false
  4. with the intent to defraud
243
Q

Forgery can be found even if ____________.

A

No one was actually defrauded

244
Q

What is extortion?

A
  1. Threat of future harm
  2. Specific intent to cause another person to cede property
245
Q

For the purposes of extortion, a threat of future harm could involve:

A
  1. Threat to cause harm
  2. Threat to expose information
246
Q

How is extortion distinguishable from robbery?

A
  1. There is no requirement that the property be taken from another’s person or presence
  2. Threat of future harm is sufficient
  3. In addition to physical threats, threats of economic/reputational harm are sufficient
247
Q

Extortion is a ______ intent crime

A

Specific

248
Q

What is the crime of receiving stolen property

A
  1. D receives stolen property
  2. D has knowledge that the property is stolen
  3. D has intent to deprive the owner
249
Q

Receipt of stolen property is a ________ intent crime

A

Specific

250
Q

What is burglary (at common law)?

A
  1. Trespassory breaking and entering
  2. into the dwelling of another
  3. at night time
  4. with the specific intent. tocommit a felony inside
251
Q

When is there trespassory breaking & entering?

A
  1. An obstruction must be overcome
  2. Any momentary intrusion of any part of the body
252
Q

At common law, what is a dwelling for the purposes of burglary?

A

A place where another person regularly sleeps

253
Q

Under modern law, what is a dwelling for the purposes of burglary?

A

Any structure

254
Q

When is nighttime for the purposes of burglary?

A

30 minutes after sunset and 30 minutes before sunrise

255
Q

What common law requirement for burglary has been eliminated by most jurisdictions?

A

“at night time”

256
Q

Can you commit burglary when recovering your own property or the property of another who authorized recovery?

A

No; lack the specific intent

257
Q

What is arson at common law?

A
  1. The malicious
  2. burning
  3. of another’s dwelling
258
Q

When is there malice for arson?

A

Intentional or reckless disregard of an obvious or known risk

259
Q

When is there burning for arson?

A

Damage to the building was caused. bythe fire

260
Q

What does a defense do?

A

Negates criminal liability

261
Q

Speaking generally, what can a defense be based on?

A
  1. Lack of criminal capacity
  2. Justification
262
Q

Why is insanity a defense to all crimes?

A

Insanity negates culpability even if requisite intent necessary for liability is present

263
Q

How do you set out an insanity defense

A

By demonstrating the requisite elements as opposed only to expert testimony of a psychiatrist

264
Q

How can expert testimony be used in an insanity defense?

A

To show elements of insanity as opposed to merely a psychiatric diagnosis of insanity

265
Q

What are the four theories of insanity?

A
  1. M’Naghten (cognitive) test
  2. Irresistible Impulse (volitional) test
  3. Durham (causation) test
  4. American Law Institute (ALI) or MPC test
266
Q

Summarize the M’Naughten Test for insanity.

A

Whether D’s mental disease prevents her from understanding right from wrong

267
Q

What are the elements of the M’Naghten Rule?

A

Accused is not guilty
1. Because of a disease of the mind that causes a defect in reason
2. she either:
a. lacks the capacity to understand the wrongfulness of her acts OR
b. cannot appreciate the nature and quality of her actions

268
Q

The M’Naughten rule does not allow a finding of insanity if:

A

D understood difference between right and wrong but couldn’t control her conduct

269
Q

What is the irresistible impulse test for insanity?

A

An accused is not guilty by reason of insanity if:
1. Because of a disease of the mind,
2. She can’t exercise the self-control or conform her actions to the requirements of the law

270
Q

What is the Durham rule?

A

D is not guilty by reason of insanity if the crime was the product of a mental disease or defect

271
Q

Essentially, the Durham test is a ____________ test.

A

“But for” test

272
Q

What is the ALI (or MPC) test for insanity?

A

Defendant may prove a defense of insanity if she shows that:
1. Because of a mental disease or defect
2. She lacked the substantial capacity to:
a. appreciate the criminality of her conduct
b. conform her conduct to the requirements of the law

273
Q

What are the two types of intoxication?

A
  1. Voluntary
  2. Involuntary
274
Q

Voluntary intoxication involves ________________.

A

The voluntary ingestion of an intoxicating substance

275
Q

Voluntary intoxication is only a defense against ____________

A

Specific intent crimes

276
Q

What is involuntary intoxication?

A

The involuntary ingestion of an intoxicating substance.

277
Q

Involuntary intoxication could occur due to:

A
  1. Duress
  2. Without knowing its nature
  3. Prescribed by a medical professional
    etc.
278
Q

At common law, there is no criminal liability for children under the age of _____.

A

Seven

279
Q

There is a rebuttable presumption of no criminal liability for children under the age of _________.

A

Seventeen

280
Q

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

A

Any time the victim reasonably believes that force will be used against her

281
Q

There is no obligation to _________ before using non-deadly force

A

Retreat

282
Q

What are the elements of self-defense using deadly force?

A
  1. Victim is not at fault
  2. Confronted with unlawful force
  3. Reasonable belief of imminent threat of death or great bodily harm
283
Q

What is the majority rule regarding duty to retreat before using deadly self-defense

A

No duty to retreat

284
Q

What is the true man doctrine?

A

A true man who is without fault is not obliged to flee from an assailant

285
Q

In a minority of jurisdictions, a victim must retreat before using deadly force if the victim can do so safely unless:

A
  1. Attack takes place in victim’s home
  2. Police officer making lawful arrest
286
Q

What kind of language can qualify as initial aggression?

A

Descriptive language (e.g. I killed your wife). Never insulting language.

287
Q

An aggressor can only use self-defense as a defense in what exceptional circumstances?

A
  1. Initial aggressor effectively withdraws
  2. Victim escalates fight from non-deadly to deadly force
288
Q

If a victim escalates a fight from non-deadly to deadly, the initial aggressor must ______ before using deadly force in self-defense.

A

Retreat

289
Q

What is the imperfect self-defense doctrine?

A

Mitigating defense that can reduce murder to voluntary manslaughter. Triggered when D uses good faith but unreasonable self-defense.

290
Q

A defendant asserting defense of others cannot ____________.

A

Use force that is excessive in the circumstances

291
Q

In the majority view, can someone assert defense of others if the other did not have a legal right of self-defense?

A

If D honestly and reasonably believed the other person had the right to use force in her own defense

292
Q

What is the alter ego doctrine?

A

D steps into shoes of the other person and can only assert self-defense if the other person could have done so. Minority view.

293
Q

When is deadly force allowed in defense of a dwelling?

A
  1. Where there is riotous and forcible entry (some jurisdictions)
  2. D reasonably believes such force is required to prevent unlawful entry by a person who intends to commit a felony/harm someone
294
Q

When may non-deadly force be used in defense of a dwelling?

A

End
1. Unlawful entry OR
2. Attack on the dwelling

295
Q

The use of _________ is never allowed for the defense of property.

A

Deadly force

296
Q

Non-deadly force may be used in defense of property in what situations?

A
  1. Use of force appears reasonably imminent and request to desist/refrain from interference would not suffice
  2. Used to regain property wrongfully taken while in immediate pursuit
297
Q

What is duress?

A

D is coercively forced under threats from another to commit a criminal act

298
Q

What are the elements of duress?

A

D reasonably believed another would inflict death or great bodily harm on her or an immediate family member

299
Q

Duress is a complete defense to all crimes except ________.

A

Homicide

300
Q

Necessity is a defense to a crime if:

A
  1. D reasonably believed that committing the crime was necessary to avoid greater harm
  2. No reasonable alternative
301
Q

Necessity is not a defense to _______.

A

Homicide

302
Q

Necessity is not available to D if ______________

A

D created the necessity

303
Q

What’s the difference between necessity v. duress?

A

Necessity involves threats from natural or physical forces.

Duress involves threats from another person.

304
Q

What does mistake of fact mean?

A

If facts were as the accused honestly believed them, she wouldn’t have committed a crime

305
Q

An unreasonable mistake of fact is a defense only to __________.

A

Specific intent crimes

306
Q

Reasonable mistake of fact is available to:

A
  1. Specific intent crimes
  2. General intent crimes
307
Q

No mistake of fact is ever a defense to ________

A

Strict liability crimes

308
Q

When is mistake of law a defense?

A

Never

309
Q

When can a person lawfully resist arrest?

A

When officer has no lawful basis whatsoever to make an arrest on another person

310
Q

Which parties can never, EVER plead a lawful resistance of arrest?

A

Third-party onlookers

311
Q

What is the entrapment defense?

A

D must establish that she had no predisposition to commit the crime

312
Q

When is consent a defense to a crime?

A

Only if lack of consent is an element of the crime

313
Q

The Bill of Rights only applies to what actions?

A
  1. Government actions
  2. Private conduct sponsored by the government
314
Q

Does the 8th Amendment “excessive fines” clause apply to states?

A

Yes, and that probably includes excessive bail

315
Q

What is the only Bill of Rights guarantee that is not applicable to the States?

A

Right to indictment by grand jury in felony cases

316
Q

The exclusionary rule is also known as the _______ doctrine.

A

Fruit of the poisonous tree

317
Q

What is the exclusionary rule?

A

If D’s constitutional rights are violated in connection with criminal prosecution, all evidence obtained in violation of those rights - and all derivative evidence - must be excluded.

318
Q

In order to overcome the exclusionary rule, the government must __________.

A

Establish evidence admissibility by preponderance of the evidence

319
Q

Whose rights must be violated for D to assert the exclusionary rule?

A

D’s own

320
Q

The exclusionary rule generally only applies to _____________.

A

Evidence presented by P as part of its case in chief at D’s trial

321
Q

The exclusionary rule is not applicable to:

A
  1. Civil proceedings
  2. Deportation hearings
  3. Parole revocation proceedings
  4. Grand jury proceedings
322
Q

What is the purged taint exception to the exclusionary rule?

A

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

323
Q

When could D purge the taint and thus circumvent the exclusionary rule?

A

By committing an intervening act of D’s free will

324
Q

When will an intervening act of D’s free will NOT purge the taint of a constitutional violation?

A

Confession given in custody immediately after unconstitutional arrest

325
Q

What is the independent source rule in regards to purging the taint and the exclusionary rule?

A

If the evidence was obtained by a source independent of the original constitutional violations, the evidence will not be excluded

326
Q

What is inevitable discovery in regards to purging the taint and the exclusionary rule?

A

If evidence would have been inevitably discovered by other investigative techniques even without the original unconstitutionally obtained information, the evidence will not be excluded

327
Q

What evidence will not be excluded even if there are Miranda violations?

A

Physical fruits

328
Q

Evidence obtained in violation of D’s constitutional rights to ____________.

A

Impeach D’s testimony

329
Q

______ confessions are not admissible for any purpose

A

Coerced

330
Q

Only ________ can be impeached with evidence obtained from illegal search

A

D

331
Q

Exclusionary rule doesn’t apply if the police relied in good faith on:

A
  1. Judicial opinion
  2. Statute/ordinance
  3. Defective search warrant
332
Q

Police can rely in good faith on a defective warrant unless:

A
  1. Warrant was obtained pursuant to an illegal search
  2. Warrant is facially defective
  3. Affidavit is lacking in probable cause
  4. Police lied to/mislead magistrate
  5. Magistrate is biased
333
Q

When is a magistrate biased in relation to a warrant?

A
  1. Magistrate is also attorney general
  2. Magistrate is paid per warrant
  3. Magistrate is not neutral and detached
334
Q

What is the knock-and-announce requirement?

A

Under the 4th Amendment, the police must knock and announce their presence and purpose before forcibly entering the premises

335
Q

What happens if there is a knock-and-announce violation on a valid search warrant?

A

Evidence not excluded

336
Q

A state may grant broader rights under its own constitution than ________________.

A

Are granted by the federal constitution

337
Q

What does the Fourth Amendment prohibit?

A

Unreasonable search and seizure

338
Q

What is an unreasonable search and seizure?

A

Those involving state actions that intrude upon an individual’s reasonable expectation of privacy

339
Q

What is the purpose of the Fourth Amendment?

A

To prevent police and law enforcement misconduct

340
Q

What is a seizure?

A

Exercise of control by the government over. person or thing

341
Q

When does seizure of a person occur?

A

Only when a reasonable person would believe that she is not free to leave or terminate the encounter with the government

342
Q

A police officer may stop a person without probable cause for arrest if ________.

A

The police officer has articulable and reasonable suspicion of criminal activity

343
Q

Is an automobile stop a seizure subject to 4th Amendment protection?

A

Yes

344
Q

Automobile stops are constitutional if objectively justifiable regardless of ____________.

A

The officer’s subjective motivation

345
Q

Who is seized during an automobile stop?

A

Driver and all passengers

346
Q

When has an arrest occurred?

A

When police take a suspect into custody against her will for purposes of interrogation and/or prosecution

347
Q

The police need ________ to make an arrest.

A

Probable cause

348
Q

When is there probable cause to make an arrest?

A

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

349
Q

In public, no warrant is required to make an arrest if:

A
  1. Officer has reasonable grounds to believe the suspect has committed a felony
  2. Misdemeanor was committed in the officer’s presence
350
Q

Does an officer need a warrant to arrest someone in the suspect’s home?

A

Yes, unless it’s an emergency

351
Q

An arrest warrant authorizes forcible entry only if _________________.

A

The officers had reason to believe that the suspect was home at the time of entry.

352
Q

Other than a suspect, who else in the suspect’s home can only be arrested via warrant?

A

Overnight guest

353
Q

What is the effect of an invalid arrest?

A

No impact on criminal prosecution, but any evidence that is a fruit of the unlawful arrest will be excluded

354
Q

What is a search?

A

Government intrusion where a person has. a reasonable and justifiable expectation of privacy

355
Q

How should you approach unreasonable search and seizure questions?

A
  1. State action?
  2. Does D have a reasonable expectation of privacy?
  3. Did police have a valid warrant?
  4. If not, does exception to warrant requirement apply?
356
Q

Privately paid police are not subject to the 4th Amendment unless ______________.

A

They have the power to arrest

357
Q

D has standing to challenge a government search if ___________________.

A

D has a reasonable expectation of privacy in the item/place searched

358
Q

The Court has found automatic standing in face of a search where:

A
  1. Search takes place in suspect’s home
  2. Search takes place somewhere owned by the suspect
  3. Suspect is an overnight guest of property owner
359
Q

Technically, a suspect lives not only at their home but _______________.

A

In temporary dwellings like hotel rooms

360
Q

In these situations, there is a presumption of standing, but it can be overcome:

A
  1. Suspect’s property seized
  2. Suspect is legitimately present on premises searched
361
Q

A guest on the premises for ________ is less likely to have a legitimate expectation of privacy than _________.

A

Business

a social guest

362
Q

There is no standing for ______________.

A

Items held out to the public

363
Q

Are public actions and conversations protected by the 4th Amendment?

A

No; police may eavesdrop

364
Q

Is handwriting protected by the 4th Amendment?

A

No

365
Q

Is paint on a car protected by the 4th Amendment?

A

No

366
Q

Are account records held by a bank protected by the 4th Amendment?

A

No

367
Q

Can police monitor a suspect’s vehicle in public thoroughfares without a search warrant?

A

Yes

368
Q

Is abandoned property protected by the 4th Amendment?

A

No

369
Q

Give an example of abandoned property.

A

Garbage left for collection

370
Q

Are open fields protected by the 4th Amendment?

A

As long as they’re not close to a house

371
Q

What is the 4th Amendment rule for flyovers?

A

Anything the police can see with the naked eye is considered “plain view”

372
Q

Can police use high-tech devices without a search warrant?

A

Not if those devices are not in general civilian use

373
Q

Can dogs be used without a search warrant?

A

Yes, since it is a search limited to the presence/absence of contraband

374
Q

Is wiretapping protected by the 4th Amendment?

A

Yes; requires a warrant

375
Q

What is the unreliable ear exception?

A

Assume that everyone you’re speaking with could be a government informant; if someone consents to being on a wire, no 4th Amendment needed.

376
Q

Are pen registers protected by the 4th Amendment?

A

No

377
Q

What does a pen register do?

A

Records only numbers dialed on a telephone

378
Q

When is warrantless wiretapping allowed?

A
  1. If one party consents to wearing a wire
  2. Foreign communications, as long as there’s no substantial likelihood that surveillance will acquire comms to which a US person is a party.
379
Q

When is a warrant valid?

A
  1. Issued on probable cause
  2. Specifically describe the place to be searched or the person/things to be seized
  3. Issued on an unbiased magistrate
380
Q

Just because a warrant was valid when signed by the magistrate doesn’t necessarily mean __________________

A

It was valid when executed

381
Q

What probable cause is required for a search warrant?

A

Probable cause that a reasonable person would believe incriminating evidence will be found

382
Q

Whether the use of informants is sufficient evidence for probable cause is determined by ________.

A

The totality of the circumstances

383
Q

What items is a warrant’s validity limited to?

A

Those items described in the warrant

384
Q

Once the items identified in the warrant have been discovered, the warrant does not ___________________

A

Authorize further exploratory search of the premises

385
Q

There is no general _______ exception to the warrant requirement

A

Emergency

386
Q

Does a search incident to a lawful arrest require a warrant?

A

No, as long as:
1. Arrest occurs first
2. Search is contemporaneous in time & place with arrest

387
Q

What is the scope of a search incident to arrest?

A

Limited to arrestee’s person and area within arrestee’s immediate control

388
Q

When an arrest takes place in the suspect’s home, the police may ________ without a warrant.

A

Conduct a protective sweep of immediately adjacent areas

389
Q

Police just arrested someone in their home. They may make a protective sweep of areas beyond spaces immediately adjacent to the suspect if _______________

A

They believe others inside the home may pose a danger. Limited to cursory visual inspection. of hiding places.

390
Q

Is DNA sampling permitted without a warrant?

A

Yes. May be limited to basic cheek swabs

391
Q

Can police search a suspect’s cell phone incident to a lawful arrest?

A

Not without a warrant; they contain too much private information

392
Q

What part of a car may be searched incident to an arrest without a warrant?

A

Passenger compartment, and only if:
1. Arrestee is within reach of the compartment at the time of search OR
2. It’s reasonable to believe the vehicle contains evidence of the offense

393
Q

In terms of automovile searches, the search need not be _____________________ with the arrest.

A

Contemporaneous

394
Q

An arrest for ________________ does not allow for the incidental search of a vehicle.

A

Traffic violations

395
Q

Do police need a warrant to search an arrestee’s personal belongings?

A

No

396
Q

What is the automobile exception to the search warrant requirement?

A

If police have probable cause to believe an automobile contains evidence of a crime/contraband, police may search anywhere in the vehicle that might contain the item

397
Q

What is the plain view exception to the search warrant requirement?

A

Any evidence seen by an officer when the officer has a lawful right to search the area may be admitted

398
Q

For the plain view requirement, there is no requirement that discovery of evidence in plain view was _________.

A

Inadvertant

399
Q

To justify warrantless seizure of an item in plain view, not only must the item be in plain view, but also __________________

A

Its incriminating character must also be immediately apparent

400
Q

Even if an object is in plain view and its incriminating nature is immediately apparent, police must still have ________ in order to seize it.

A

Lawful right to access the object

401
Q

Police may ask for consent for a search without:

A
  1. Informing individuals of their right to refuse consent
  2. Giving Miranda warnings
402
Q

Consent to a search must be given ______ and ______.

A

Voluntarily

Intelligently

403
Q

If consent is obtained by ___________ of a valid search warrant, the consent is invalid.

A

A false claim

404
Q

A person’s consent to search can be effective even if she did not know ___________.

A

Her right to withhold consent to the search

405
Q

A search provided via consent only extends to _____________.

A

Scope of consent

406
Q

If there are multiple parties in a property, how many must consent to search?

A

All present (and only those present) parties must consent

407
Q

When may a third party consent to search?

A

As long as police reasonably believed the party consenting had the authority to do so

408
Q

Which third parties may never provide consent to search?

A
  1. Landlord
  2. Hotel manager
409
Q

What is the hot pursuit exception to the search warrant requirement?

A

An officer chasing a fleeing felon may make a warrantless search and seizure or follow a suspect into a private dwelling

410
Q

What is the evanescent evidence exception to the search warrant requirement?

A

Evidence that would disappear if the police officer waited to obtain a warrant may be seized without warrant

411
Q

Any ________ must be reasonable in regards to evanescent evidence.

A

Bodily intrusions

412
Q

Stop and frisk stops are also known as _________________.

A

Terry stops

413
Q

When may an officer make a Terry stop?

A

Officer has articulable and reasonable suspicion to believe that a person engages in criminal activity.

414
Q

What may officers look for in a Terry stop?

A

Frisk for weapons

415
Q

During a Terry stop, police may question a suspect without ______________.

A

Reading Miranda warnings

416
Q

The standard for a Terry Stop is _______, which is lower than _________

A

Articulable and reasonable suspicion

Probable cause

417
Q

Articulable and reasonable suspicion for a Terry stop must be based on ________.

A

Objective facts

418
Q

Flight only creates reasonable suspicion for a Terry stop if ___________________.

A

it is a high crime area

419
Q

When does a Terry stop become an arrest?

A

If it is sufficiently long or intrusive

420
Q

How long is a Terry stop reasonably necessary?

A

As long as needed to verify/dismiss officer suspicions. Generally not longer than a few minutes.

421
Q

How far can police go in getting verification of identity during a Terry stop?

A

Ask for oral identification; may not demand document identification

422
Q

When can a police officer enter clothing during a Terry stop?

A

When she reasonably believes based on plain feel that it is a weapon or contraband

423
Q

What technique must an officer use during a pat down?

A

One feel rule

424
Q

A police officer may order a driver and passengers to step out of a vehicle during a justified stop even without ___________________.

A

Suspicion of criminal activity

425
Q

What is the special needs exception to the search warrant requirement?

A

Where 4th Amend. intrusion serves special governmental needs

426
Q

Are routine sobriety checkpoints constitutional?

A

Yes, as long as:
1. Initial stop
2. Minimal intrusion
3. Seizure is carried according to specific instruction

427
Q

Are criminal wrongdoing checkpoints constitutional?

A

The more general the crime control, the more unconstitutional the checkpoints.

428
Q

Are border searches protected by the 4th Amendment?

A

No, not for citizens or non-citizens

429
Q

Are immigration-related searches not at the point of entry protected by the 4th Amendment?

A

Yes; customs, etc.

430
Q

Are permanent alien checkpoints constitutional?

A

Yes, since the intrusion is minimal and the purpose is legitimate

431
Q

Are roving-patrol traffic stops that supplement the alien checkpoint system constitutional?

A

Reasonable suspicion is required

432
Q

Do administrative inspectors need warrants?

A

Yes, but the probable cause required is lower

433
Q

Issuance of a warrant for an administrative inspection requires _________.

A

A general and neutral enforcement plan

434
Q

Do administrative searches of public school stiddemts require warrants?

A

Not if officials have reasonable grounds that the search will result in incriminating evidence

435
Q

Can an administrative investigator make. a warrantless search to seize spoiled or contaminated food?

A

Yes

436
Q

What kinds of highly-regulated businesses can an administrative investigator search without a warrant?

A
  1. Automobile junkyards
  2. Arms dealers
  3. Strip-mining
  4. Liquor
437
Q

_____ passengers may be searched without a warrant

A

Airline

438
Q

Can parolees be searched without a warrant?

A

Yes, and so can their homes

439
Q

Can government employees be searched without a warrant?

A

No, but their desks and filing cabinets can be

440
Q

What does the 5th Amendment protect against?

A

Double jeopardy for the same offense

441
Q

What jurisdictions does double jeopardy apply to?

A
  1. State
  2. Federal
442
Q

Double jeopardy only applies to _______ cases.

A

Criminal

443
Q

Does double jeopardy apply to arraignments?

A

No

444
Q

Does double jeopardy apply when a court accepts D’s guilty plea?

A

Yes

445
Q

In a jury trial, jeaopardy attaches when __________.

A

The jury is selected and sworn in

446
Q

In a bench trial, jeopardy attaches when _________.

A

The first witness is sworn in

447
Q

In civil trial, jeopardy attaches when _______.

A

Trick question, it never does

448
Q

In a preliminary hearing, jeaopardy attaches when ______.

A

Trick question, it never does

449
Q

What happens to double jeopardy if there is a hung jury?

A

D may still be retried for the same offense

450
Q

D may be retried for the same offense if the original trial was aborted for _______________.

A

Manifest necessity

451
Q

D who has breached ________ may be retried for the same offense.

A

Plea bargain

452
Q

Can D who successfully appealed a conviction be retried for the same offense?

A

Yes, unless the decision was reversed on insufficient of evidence

453
Q

Two crimes do not constitute the same offense if each crime requires ________.

A

An element that the other does not

454
Q

How does double jeopardy apply to lesser included offenses?

A

Attachment of jeopardy for the greater offense bars retrial for lesser included offenses

455
Q

How does double jeopardy apply to greater included offenses?

A

Attachment of jeopardy for a lesser offense bars retrial for greater included offenses

456
Q

When could attachment of a lesser offense NOT bar retrial for the greater offense?

A
  1. Unable to try both simultaneously (e.g. battery charge and then D dies)
  2. New evidence that couldn’t have occurred by prosecution or hadn’t been discovered despite due diligence
457
Q

Acquittal by one sovereign does not bar __________________.

A

Prosecution by another sovereign

458
Q

What are “same sovereigns”?

A

State courts and municipal courts within the same state

459
Q

Does double jeopardy apply to factual questions?

A

Yes; once a court has litigated a factual question in favor of D, it cannot be re-litigated in the same sovereign to D’s detriment

460
Q

Under what doctrine can denial of dismissal based on double jeopardy be immediately appealed?

A

Collateral order doctrine

461
Q

D may object to admissibility of her confession to the police if:

A
  1. Confession wasn’t given voluntarily
  2. Confession was obtained in violation of her Miranda rights
462
Q

Why must Miranda warnings be given before police interrogation?

A

Mostly because of the right against self-incrimination

463
Q

What rights to the Miranda warnings inform D of?

A
  1. Right to remain silent
  2. Right to counsel
464
Q

The rights to silence and counsel only apply in _________.

A

Custodial interrogation

465
Q

When is a person in custody?

A

When she is not objectively free to terminate an encounter with the government

466
Q

Is a person in custody if they go voluntarily to the police for questioning?

A

No

467
Q

Is a traffic stop custody?

A

Not the initial period of a routine traffic stop

468
Q

Is a probation interview custody?

A

No

469
Q

Is a tax audit interview custody?

A

No

470
Q

What is police interrogation?

A

Any conduct that police know or should have known was likely to elicit an incriminating response from the suspect

471
Q

Miranda only applies when D knows _________.

A

That a government agent is conducting the interrogation

472
Q

Miranda does not apply to interrogations by ___________.

A

Informants who D does not know are working for the police

473
Q

How must a suspect exercise her Miranda rights?

A

Clearly and unequivocally

474
Q

When can Miranda rights be exercised?

A

At any time during questioning

475
Q

“_____________ I need a lawyer” is not an unequivocal request for an attorney

A

I think

476
Q

Do Miranda warnings have to be given verbatim?

A

No, as long as the substance of the warnings is present

477
Q

The right to remain silent is ____ specific.

A

Offense

478
Q

Once D asserts a right to remain silent, police must not ________________.

A

Attempt to obtain a waiver of these rights with respect to the same crime

479
Q

Which Miranda right is not offense specific?

A

Right to an attorney

480
Q

The obligation of police to honor the invocation of the Miranda right to counsel terminates after ________.

A

14 days

481
Q

How must D waive her Miranda rights in order for the waiver to be valid?

A
  1. Knowingly
  2. Voluntarily
  3. Intelligently
482
Q

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

A

The government

483
Q

What is a spontaneous statement?

A

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

484
Q

Can silence be admitted to impeach D’s testimony?

A

Only silence prior to Miranda warnings

485
Q

What kind of evidence resulting from Miranda violations is still admissible?

A

Physical fruits

486
Q

The privilege against self-incrimination extends only to compelled testimonial communications; thus, a criminal suspect may be compelled to make ________.

A

A recording of her voice

487
Q

The police may conduct an interrogation without giving the suspect Miranda warnings if there is a reasonable concern for ________. However, this only applies to statements _____________________.

A

Public safety

Made voluntarily by the suspect

488
Q

Courts will allow an officer to question a suspect about the location of ________ without giving Miranda warnings if it is necessary because of _________.

A

A weapon

Exigent circumstances

489
Q

Miranda warnings do not need to be given to a witness subpoenaed to testify in __________.

A

Grand jury proceedings

490
Q

The due process clause of the 14th Amendment requires that confessions be _________ to be admissible.

A

Voluntary

491
Q

What considerations will courts make in determining whether a confession was coerced?

A
  1. Whether the police subjected the suspect to coercive conduct
  2. Whether the conduct was sufficient to overcome the will of the suspect
492
Q

When is coercive conduct sufficient to overcome the will of the suspect?

A

Courts consider totality of the circumstances, including:
1. COnduct of police
2. Suspect’s individual characteristics

493
Q

There is no Fifth Amendment protection if the confession is not ___________.

A

Incriminatory

494
Q

If a person responds to incriminating questions in __________, the person cannot later bar that evidence in criminal prosecution by invoking the Fifth Amendment.

A

Civil proceeding

495
Q

The Fifth Amendment only applies to ______ evidence, not _____ evidence.

A

Testimonial

Physical

496
Q

The Fifth Amendment will protect compelled statements even if they are not incriminating or introduced as evidence if _______________________.

A

The statements lead to the discovery of incriminating evidence

497
Q

In addition to testimony, the Fifth Amendment protects acts of _______ that would have testimonial significance by ________.

A

Compelled production

Authenticating documents

498
Q

It is unconstitutional for _____ or _____ to comment negatively on D’s decision not to testify.

A

Prosecutor

Judge

499
Q

D voluntarily waives the 5th Amendment by taking _______.

A

The witness stand

500
Q

The privilege against compelled incriminating testimony is eliminated if there is no longer _______.

A

A possibility of incrimination

501
Q

A witness cannot be compelled to provide potential incriminating testimony unless the witness is granted ___________ immunity

A

Use and derivative-use

502
Q

What is transactional immunity?

A

A witness cannot be prosecuted by the granting sovereign for any crimes the witness is required to testify about

503
Q

A sovereign who does not grant transactional immunity may prosecute a witness but may not use _________ nor _________.

A

Immunized testimony

Any other evidence derived from the testimony

504
Q

What does the Sixth Amendment provide?

A

The right to counsel at all criminal proceedings

505
Q

When does the Sixth Amendment apply?

A

Once D has been formally charged

506
Q

The Sixth Amendment preventes police from obtaining an incriminating statement ____________________.

A

Outside of the presence of counsel without first obtaining D’s waiver of counsel

507
Q

Is the Sixth Amendment right to counsel offense-specific?

A

Yes; it only attaches for the crimes for which D has not been formally charged.

508
Q

What is the difference between the Fifth and Sixth Amendment rights to counsel?

A

Sixth is offense-specific

509
Q

Indigent defendants are not always entitled to appointment of counsel, so the right to counsel includes ____________________

A

The broader right to retain an attorney at D’s own expense

510
Q

If there is a violation of the Sixth Amendment right to counsel at trial, there must be _________.

A

An automatic reversal of conviction

511
Q

If there is a violation of the Sixth Amendment right to counsel at any time other than trial, _________ will be applied.

A

The harmless error test

512
Q

The right to effective assistance of counsel includes the appoitnment of necessary experts in ________ cases.

A

Felony

513
Q

The right to effective counsel includes the appintment of necessary experts in _____

A

Felony cases

514
Q

In order to show that there was ineffective assistance of counsel, D must show difficient performance that is:

A
  1. Deficient performance was unruly unreasonable
  2. Result of proceeding would have been different but for the deficiency
515
Q

A pre-trial identification process must”

A
  1. Be fair to the suspect
  2. Not involve prejudice
  3. Not violate her due process rights
516
Q

A suspect lineup violates due process only if:

A
  1. It was so unnecessarily suggestive as to give rise to
  2. A very substantial likelihood of irreparable misidentification
517
Q

At what lineups does a suspect have the right to the presence of an attorney?

A

Any post-charge in-person lineup

518
Q

The right to counsel during identification processes does not apply when:

A
  1. Witness is being shown photographs of the suspect
  2. Police take physical evidence
519
Q

What is the remedy for an unconstitutional lineup?

A

Exclusion of in-court identification, since it may have caused irreparable misidentification

520
Q

A witness may make an in-court identification despite the existence of an unconstitutional pretrial identification if ___________________.

A

The in-court identification has a reliable independent source under a multi-factor inquiry

521
Q

A grand jury may indict D based on evidence that would be _____ at trial.

A

Inadmissible

522
Q

Does D have a right to notice of grand jury proceedings?

A

No

523
Q

Does D have a right to be present at grand jury proceedings?

A

No

524
Q

Does D have a right to counsel if called to testify in grand jury proceedings?

A

No, but D does have a right against self-incrimination

525
Q

D has no right to confront ______ for a grand jury.

A

Witnesses called to testify

526
Q

D has no right to introduce _____ at grand jury proceedings

A

Evidence

527
Q

The Sixth Amendment guarantees every D a right to _______.

A

A speedy trial

528
Q

When does the right to a speedy trial attach?

A

Post arrest or charge

529
Q

Whether the defendant has been given a speedy trial depends on an analysis of ________.

A

The totality of the circumstances

530
Q

The remedy for a violation of the right to a speedy trial is ________

A

Dismissal of the case with prejudice

531
Q

What rules guide a judge setting bail?

A
  1. Not required to set bail in all cases
  2. No excessive bail
532
Q

When can bail issues be appealed?

A

Immediately

533
Q

When is preventive detention?

A
  1. D poses a danger to society
  2. No amount of bail would ensure D’s appearance at trial
534
Q

Preventative detention requires __________.

A

A hearing on the issue

535
Q

There is a constitutional right to trial by jury for all ______ offenses.

A

Non-petty

536
Q

What is a non-petty offense?

A

Any offense that carries a potential sentence of over 6 months

537
Q

In 2020, the Supreme Court held that the Sixth Amendment requires ________ to support a conviction for a criminal offense

A

A unanimous jury verdict

538
Q

What is the right to venire?

A

D has a right to have the jury selected from a representative cross-section of the community

539
Q

Generally, the right to confront witnesses is _______

A

A face-to-face confrontation with witnesses who are offering testimonials, in the form of cross-examination during a trial

540
Q

When is D competent to stand trial?

A
  1. D has rational and factual understanding of the proceedings against her
  2. D must be able to consult with/assist counsel in her own defense
541
Q

When will a judge evaluate competency?

A

Early in the process, usually with the assistance of experts

542
Q

At what point in the process may D enter a guilty plea?

A

After the judge determines, on the record, that there has been full advisement of the constitutional rights that will be waived and the consequences of D’s guilty plea

543
Q

In order to plead guilty, D must understand the nature of ______ and ______ of the crime(s) charged.

A

The charges

The crucial elements

544
Q

In order to plead guilty, D must be advised of the maximum _______ and any mandatory ______.

A

Possible sentence

Minimums

545
Q

In order to plead guilty, D must be advised that she has a right to plead ______ and ______.

A

Not guilty

Go to trial

546
Q

If prosecution fails to uphold a plea bargain, D has rights to:

A
  1. Rescission OR
  2. Specific performance
547
Q

The death penalty can be imposed only under a statutory scheme that gives the judge or jury:

A
  1. Reasonable discretion
  2. Full information concerning D
  3. Guidance in making the decision
548
Q

How old does someone have to be to be eligible for execution?

A

At least 18 when the crime was committed

549
Q

What mental states can a person have at the time of committing a crime that could prevent them from being executed?

A
  1. Mentally disabled
  2. Legally insane
550
Q

The execution process cannot include _________

A

Torture or a lingering death

551
Q

For felony murder, the death penalty is unconstitutional if __________.

A

D didn’t take, attempt to, or intend to take life

552
Q

For felony murder, the death penalty is allowed if:

A
  1. D was a major participant in the underlying felony
  2. D acted with a reckless indifference to human life

Bar Exam (15 decks)

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