Crimes Flashcards
What are the four elements of a crime?
- Actus reus
- Mens rea
- Concurrence
- Causation
Define actus reus
A voluntary physical act or failure to act where there is a legal duty to act
An actus reus can be either a _________ or __________.
Commission
Omission
Define commission
Voluntary physical act
When is a physical act voluntary?
Bodily movement was the product of the actor’s own volition
Give some examples of nonvoluntary acts.
- Act not the product of actor’s will
- Reflex/convulsion
- Bodily movement during unconsciousness or sleep
When is possession a voluntary act?
If D was aware of her control of the contraband long enough to have been able to terminate possession
Legal duties to act can be created by:
- Statute
- Contract
- Relationship between parties
- Voluntary assumption of care
- Creation of peril
What liability does a good Samaritan take on by volunteering to help?
Obligation to act with a reasonable standard of care
What is the mens rea requirement for a crime?
D must have had a guilty state of mind at the time of the act
What is specific intent in connection to mens rea?
- Intent to preform AND
- Specific intent to cause some further objective
What defenses are only available for specific intent crimes?
- Diminished capacity
- Unreasonable mistake of fact
Describe the diminished capacity defense.
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
Mistake of fact does not have to be _________ to be a valid defense to specific intent crimes
Reasonable
What is the specific intent required for first-degree murder?
Premeditation
The defense of diminished capacity or unreasonable mistake of fact will reduce first-degree murder to _________.
Second-degree murder
Assault is a specific intent crime only if ___________.
Assault is defined as an attempted battery
What is the specific intent required for burglary?
Intent to commit a felony inside the victim’s dwelling
What is the specific intent required for robbery?
Intent to permanently deprive victim of her property
Describe conditional intent as it relates to robbery.
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)
What specific intent is required for larceny?
Intent to permanently deprive victim of her property
What specific intent is required for embezzlement?
Intent to defraud
What specific intent is required for false pretenses?
Intent to defraud
What specific intent is required for forgery?
Intent to defraud
What specific intent is required for solicitation?
Intent to have the person solicited complete the crime
What is an inchoate offense?
Type of crime committed by taking a punishable step toward the commission of another crime
What is the specific intent required for attempt?
Intent to complete the underlying offense
What is the specific intent required for conspiracy?
Intent to have the crime completed
What is general intent?
Intent to perform or cause the act that constitutes the actus reus
A jury may infer the required general intent from ___________.
The fact that the defendant committed the act
When is assault a general intent crime?
When assault is defined as a threat
Give examples of general intent crimes
- Battery
- Rape
- Kidnapping
- False imprisonment
A mistake must be ______ to be a valid defense to a general intent crime.
Reasonable
Intoxication must be ________ to be a valid defense to a general intent crime.
Involuntary
What is malice?
Intentional or reckless disregard of obvious or known risk
Defenses to ___________ do not apply to malicious crimes.
Specific intent crimes
Give examples of malicious crimes
- Common law murder
- Arson
What is strict liability?
No intent is required for criminal liability
How do you identify strict liability statutes?
Statutes do not contain any adverbs modifying the action that is prohibited
What defenses are related to intent (and capacity) for strict liability crimes?
- Insanity
- Involuntary intoxication
- Duress
Mistake of fact, whether reasonable or unreasonable, is not a defense for ___________.
Strict liability crimes
What is vicarious liability?
A type of strict liability that may be imposed upon one person for the act of another
What is the most common type of vicarious liability?
An employer is held liable for the acts of an employee
What must be found for vicarious liability to be found?
Defendant had the ability to control the person who committed the crime
What kind of punishment can vicarious liability incur?
Fines only
What is transferred intent?
When a defendant intended to harm one person but actually causes harm to another person, the intent is transferred to the victim actually harmed
Who can be the victim of attempt when transferred intent is involved?
Whoever the crime was attempted on, not who the crime actually occurred to
You cannot transfer intent between ___________.
Different crimes
What are the four mental states defined by the Model Penal Code?
- Purposely
- Knowingly
- Recklessly
- Negligently
What is the MPC standard for “purposely”?
Conscious object to cause such result
What is the MPC standard for “knowingly”?
Aware such result practically certain
What defense is never available for any MPC mental state?
Mistake of law
Under MPC mental states, what defense is always available?
Reasonable mistake of fact
Unreasonable mistake of fact is a defense for every MPC mental estate except for ____________.
Negligently
What is the MPC standard for “recklessly”?
Conscious disregard of substantial & unjustifiable risk
What is the MPC standard for “recklessly”?
Conscious disregard of substantial & unjustifiable risk
A risk is substantial and unjustifiable if ___________.
Considering D’s conduct and known circumstances, the conduct deviates grossly from conduct that a law-abiding person would observe
What is the MPC standard for “negligently”?
D should be aware of substantial & unjustifiable risk
What is the concurrence requirement for crimes?
- Actus reus and mens rea must occur concurrently
- Mental state must cause the act
What is the causation requirement for crimes?
D’s actus reus caused the harmful result
What test is used for actual cause?
“But for” test
What is the “but for” test for causation
Whether the harm would not have occurred “but for” the defendant’s act/failure to act
What is the common law “year and a day rule” for murder?
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
In order for someone to have caused the death of another person, they need not actually kill them; they need only _____________.
Accelerate the death process
What is proximate cause?
Limits liability to natural and probable consequences that bear reasonable relationship to the actor’s conduct.
What is the general rule under proximate cause analysis?
D is guilty for all natural/probable consequences of her act/omission
What is a dependent intervening cause?
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
When does an intervening cause break the chain of causation?
When the intervening force is so out of the ordinary that it is no longer fair to hold D criminally responsible for the outcome
Where may a crime be prosecuted?
- Any state where act constituting an element of the offense was committed
- Any state where the act caused a result
What is the standard for elements of a crime?
Beyond a reasonable doubt
What does an alibi do?
Negates an essential element of the crime; not a traditional defense
A directed verdict for __________ would be unconstitutional.
The prosecution
Why would a directed verdict for the prosecution be unconstitutional?
Would violate D’s 6th Amendment right to trial by jury
It is a violation of due process to give a mandatory ____________ in a criminal case on an element of a charged crime
Jury presumption
Why is a mandatory jury presumption unconstitutional?
Shifts burden of proof to defendant
When might a mandatory presumption not be a per se violation of the Due Process Clause?
When it is rebuttable
What is a prosecution’s duty toward defenses?
Prosecution must disprove every element of a defense raised by defendant beyond a reasonable doubt
What is the only defense that puts the burden of proof on the defendant?
Insanity defense, but it depends on the jurisdiction
What are factors?
Modifiers that increase the penalties for a crime
What is the standard for a factor?
Beyond a reasonable doubt
What constitutes a felony?
May be punished by more than one year in prison
What constitutes a misdemeanor
Maximum punishment may not exceed one year in prison
When two offenses are greater and lesser included offenses, a defendant cannot ___________.
Be convicted of both crimes for the same transaction
What must a state show in order to prove attempt?
- D intended to commit the crime
- D committed an overt act beyond mere preparation
Regardless of the underlying crime, attempt is always a _______ intent crime.
Specific
An unequivocal ___________ is insufficient for the actus reus required by attempt.
Expression of criminal intent
What is the MPC standard for attempt?
Substantial step towards completion
(broader than common law)
What is the common law standard for attempt?
Dangerous proximity to success
What happens to an attempt charge if the person actually completes the crime?
Prosecutor may convict the defendant for attempt or the completed crime, but not both
What kind of impossibility is a defense to attempt?
Legal impossibility
When is an attempt considered to be a legal impossibility?
When the defendant has completed all of her intended acts but her acts fail to constitute a crime
What kind of impossibility is never a defense to attempt?
Factual (e.g. dummy bomb)
Abandonment can be a defense to attempt, but common law and the MPC differ. How?
Common law: abandonment is no defense
MPC: Voluntary abandonment is a defense
What is the actus reus for solicitation?
Inciting another to commit a crime
What is the mens rea for solicitation?
Having the specific intent to incite another person to commit a crime
Can solicitation be merged with other crimes?
Not with conspiracy or a completed crime
Can withdrawal be a defense for solicitation?
No, but it does avoid accomplice liability
What are the requirements of conspiracy?
- An agreement to commit a crime between 2+ people
- Intent to enter an agreement
- Intent to pursue an unlawful objective
- overt act in furtherance of the conspiracy
A person cannot conspire with an undercover officer unless _________-
There is another co-conspirator
What is the Wharton rule?
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.
Can a husband and wife conspire?
At common law, no, but virtually all courts have rejected this rule
Can a corporation conspire with an agent?
No conspiracy between a corporation and a single agent acting on the corporation’s behalf
What happens if all co-conspirators but one are acquitted?
Remaining defendant cannot be convicted of conspiracy
What happens if only one co-conspirator is arrested?
Defendant can still be convicted
Can intent to agree to conspiracy be inferred?
Yes, from actions; words are not necessary
When can circumstantial evidence show intent to enter into an agreement?
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
When is there an intent to pursue an unlawful objective?
When there is a meeting of the minds between at least two people to pursue an unlawful objective
What is the unilateral conspiracy approach?
MPC allows defendant to be convicted of conspiracy even if all other co-conspirators are protected/undercover
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 _________ at the commission of each crime.
Present
The arrest of one co-conspirator does not automatically terminate the conspiracy where _________________.
Other co-conspirators continue to carry out the goals of the conspiracy
What crimes are a co-conspirator liable for?
- Committed in furtherance of conspiracy
- Crimes were a natural and probably consequence of the conspiracy
What happens if someone goes through with a crime they conspired to commit?
Defendant can be convicted of both conspiracy and crime itself
What is a chain conspiracy?
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.
What is the conspiracy of interest test?
A single conspiracy will be found if each participant:
1. Knows that the other participants exist
2. Realize they have a community of interest
______________ is not required in the community of interest test
Knowledge of others’ precise identity
What are hub-and-spoke conspiracies?
One participant enters reasonable independent agreements with different people
When will hub-and-spoke conspiraies be regarded as one conspiracy
If there is a community of interest
What kind of mistake is eligible as a defense to conspiracy?
Mistake of fact
When is withdrawal effective as a defense to conspiracy?
- D takes an affirmative act to notify all co-conspirators AND
- Sufficient time for co-conspirators to abandon crime
What happens if someone successfully withdraws from conspiracy?
Not a defense to prior conspiracy or already-committed crimes, but no liability for further crimes of conspiracy
When will someone be guilty under accomplice liability
When D aids, abets, encourages, or facilitates commission of a crime with the intent that the crime be committed
What proof is required for a conviction for accomplice liability?
- Proof that accomplice aided principal’s crime
- Accomplice acted with culpable mental state
Accomplice liability is not a separate offense, but rather ________.
An alternative way to be found guilty of the primary offense
Most jurisdictions recognize a lesser charge of accessory ________.
After the fact
In regards to accomplice liability, who is the principal?
Party who actually engages in the criminal act/omission
There is no requirement that the principal __________ in order to find accomplice liability
is actually prosecuted
What changes if someone is an acccessory after the fact?
Not liable for the principal crime but rather the less serious offense of accessory after the fact
Just because someone was present at the scene of the crime does not mean they were _______.
An accomplice
Failure to _______ does not make someone an accomplice unless _______.
intervene
There was an affirmative duty to intervene
_______ alone are sufficient to meet the actus reus requirement of being an accomplice.
Words alone
What is the mens rea requirement of accomplice liability?
- Intent to assist the primary party AND
- Intent that the primary party commit the charged offense
In some jurisdictions, a defendant cannot have accomplice liability for recklessness or negligence because __________.
One cannot have intent for negligence or reckless killing
In most jurisdictions, courts hold accomplices responsible for crimes like manslaughter if ____________.
Accomplice intentionally provided assistances and acted with recklessness/negligence
Intent can be inferred when the accomplice renders legal assistance if:
- Acomplice has knowledge of illegal purpose
- Accomplice has stake in the outcome
The scope of liability for accomplices includes:
- Liability for intended crime
- Liability for all other foreseeable crimes
What is battery?
The intentional, reckless, or criminally negligent application of unlawful force to another resulting in either bodily injury or offensive touching.
Battery is a _______ intent crime.
General
What is the actus reus for battery?
Any harmful or offensive touching
What is the mens rea of battery?
D had intent to make physical conduct (or at least be acting in a manner that is reckless or criminally negligent)
Assault is either:
- Attempt to commit battery OR
- Intentional creation of reasonable apprehension of imminent bodily harm
Attempted battery is a __________ intent crime
Specific
What is the mens rea of attempted battery?
Intent to commit a battery
What is the mens rea of assault as threat?
Intent to create reasonable apprehension of imminent bodily harm
_______ alone will almost never suffice for assault as threat.
Words
What are conditional threats?
Conditional threats where D threatens harm only if victim doesn’t obey D’s demands
Conditional threats are sufficient for assault liability UNLESS:
- D had legal right to compel victim to perform the action OR
- Condition expressly negates intent (e.g. ‘if you weren’t a girl, I’d kick your ass’)
What is mayhem?
D intentionally maims or permanently disables a victim
Modernly, mayhem is treated as ____________
A form of aggravated battery
What is homicide?
The unlawful killing of another person
What are the two principal types of homicide?
- Murder
- Manslaughter
What is murder?
Unlawful killing of another human being with malice aforethought
First-degree murder is created by ________.
Statute
First-degree murder typically consists of ____________.
Intentional, deliberate and premeditated killing
What is premeditation and deliberation
Killing is done after a period of time for prior consideration
The duration of time to reflect for 1st-degree murder should not _________.
be arbitrarily fixed
Premeditation and deliberation requires merely _________.
A moment’s reflection upon the killing
Deliberation and premeditation are NOT the same as intent _________.
To kill
What are the emotional requirements for first-degree murder?
D killed another person in a calm and calculated fashion
Brutality of killing cannot in itself support a finding that ____________.
Killer acted with premeditation and deliberation
What is second-degree murder?
Intentional killing of a person with malice aforethought
Second-degree murder doesn’t require the specific intent _______.
to kill
Malice aforethought exists if:
- There is no excuse to justify the killing
- There is no adequate provocation can be found AND
- The killing is committed with certain required states of mind
What’s the difference between first- and second-degree murder?
First-degree murder requires a statute
What states of mind qualify for malice aforethought
- Intent to kill
- Intent to commit great bodily injury
- Depraved heart killing
- Intent to commit a felony
A jury will look to ________ to find intent to kill.
Totality of the circumstances
What is the deadly weapon doctrine?
Where death is caused by the purposeful use of a deadly weapon, the intent to kill is implied
What is intent to commit great bodily injury?
Causing another’s death by actions intended to cause serious bodily injury short of death
Another term for depraved heart killing is _____________.
Wanton and willful disregard of human life
A depraved heart killing will be found where ____________.
Defendant was aware of the unjustifiably high risk to human life but chose to proceed anyway
The rule for intent to commit felony is ____________.
Felony murder rule
What is 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
Which deaths during the commission of a felony will be considered murder under the felony-murder rule?
- Reasonably foreseeable deaths
- Must have occurred before D reached a point of temporary safety
A defendant cannot be found guilty of felony murder if they are not ____________.
Guilty of the underlying felony
A felony must be independent of __________ for the felony-murder rule to apply.
Independent of the original felony
e.g. you can’t have felony-murder for homicide
For the felony-murder rule to apply, the death must have been ____________.
A reasonably foresseable results of a felony
Co-felons will be liable for a killing committed by one felon If the killing was:
- Committed in furtherance of the felony
- A natural and probably consequence of the felony
Liability for a felony murder ends when:
1, The felony terminates
2. The felons reach a place of temporary safety after the felony
A felon is not guilty of felony murder when one of their co-felons is murdered by:
- Police
- Third party (such as victim)
When will a co-felon be guilty of felony murder because the police or third party killed someone?
- The decedent is an innocent party/bystander AND
- Defendant caused the death (e.g. initiating gun battle)
D convicted for felony murder cannot be sentenced to death if:
- Did not take life
- Did not attempt to take life AND
- Did not intend to take life
Voluntary manslaughter would be murder but for the existence of:
- Adequate provocation
- Imperfect self-defense OR
- Diminished capacity
Adequate provocation is also known as ________
Heat of passion
What elements are required for finding adequate provocation
- D provoked by V
- Sudden and intense passion in reasonable person
- No reasonable time to cool off
- D did not cool off
_________ words are not sufficient to create heat of passion, but _________ words are.
Insulting
Descriptive
What is the imperfect self-defense doctrine?
Someone engaged in good faith but unreasonable self-defense using deadly force.
What is the effect of the imperfect self-defense doctrine?
Mitigating defense; reduces murder to voluntary manslaughter
Diminished capacity can reduce murder to voluntary manslaughter unless it stems from ___________.
Voluntary intoxication
Involuntary manslaughter is an unintentional killing that results from either:
- Criminal negligence
- Misdemeanor-murder
What is criminal negligence?
Exceeds tort negligence but is less than the reckless indifference of depraved heart murder
In order to find criminal negligence, it is not necessary that the defendant ____________.
Was aware that her actions entailed a high degree of risk to human life
What’s the difference between criminal negligence and depraved heart murder?
- Subjective awareness of actions causing risk is req. for heart murder
- Wanton and reckless disregard for human life is req. for heart murder
If a misdemeanor is not ______, then a death must have been foreseeable for involuntary manslaughter.
inherently wrong
What is “malum in se”?
Inherently wrong
What happens if a death results from a felony not listed in the felony murder statute?
Involuntary manslaughter
What is rape?
Sexual intercourse without the victim’s consent by force or threat of force
At common law, only ______ is considered sexual penetration, while MPC also recognizes _________.
Vaginal intercourse
Anal penetration
__________ penetration will qualify as rape if done without consent
The slightest
In order to have a defense to rape, defendant must have had a reasonable belief that __________.
Victim consented
Lack of consent can exist when a victim is incapable of consenting due to:
- Unconsciousness
- Intoxication
- Mental incapacity
If consent is obtained via ____, it is nonetheless regarded as valid consent
Fraud
When will fraud not create consent to a rape?
Due to the fraud, victim did not even realize she is having sexual intercouse.
When will fraud not create consent regarding rape?
Due to the fraud, victim does not even realize that she is having sexual intercourse
At common law, _____ could not be found guilty of ______. Modernly, this exemption has been abolished.
A husband
His wife
What is statutory rape?
Sexual intercourse with a person under the age of consent
Neither ________ nor ____________ is a valid defense against statutory rape.
Consent
Mistake of fact as to the victim’s age
What is false imprisonment?
Unlawful confinement of a person
Confinement of a person is unlawful unless:
- It is authorized by law
- Person consents to confinement
For consent to confinement to be lawful, consent must be ____________
Freely given by a person with the capacity to consent
What is confinement?
- Forcing the victim to go where she does not wish to go OR
- Forcing the victim to remain where she does not wish to remain
When is preventing a person from going where she desires NOT confinement?
If alternative routes are available to her
What is kidnapping?
False imprisonment of the person or concealment of a person in an undisclosed location
In order to satisfy the movement requirement. of kidnapping, the movement of the victim must not be _________.
Related to some other offense (e.g. rapist forces victim into car)
What is the MPC requirement for movement under kidnapping?
Defendant moves the victim a “substantial distance” from the vicinity where she is found
What is larceny?
- Wrongful taking and
- carrying away
- of another’s tangible personal property
- with the intent to permanently deprive
When is a taking wrongful?
Taking without consent by trespass or misrepresentation
_________ will satisfy the “carrying away” element of larceny
The slightest movement
Larceny only requires that tangible property be taken from the lawful possessor; _________ is not required.
Transfer of title
Larcent is a _______ intent crime.
Specific
Can you commit larceny when recovering your own property or the property of someone who authorized you to take it back?
No; specific intent not found
What specific intent is required for larceny?
Intent to permanently deprive
What is the doctrine of “continuing trespass”?
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
What defences are available for larceny?
- Intent to return property
- Mistakenly believes property is her own
What is embezzlement?
- Fraudulent
- conversion
- of another’s personal property
- by a person in lawful possession
Embezzlement is a _________ intent crime
Specific
What specific intent is required for embezzlement?
D intended to defraud
What defense is available for embezzlement?
D intends to restore the EXACT item of property taken
When is intent to restore property not a defense to embezzlement?
- Intent to restore similar property instead of exact
- Intent to repay money
What is conversion?
Converts goods to her own use and excludes owner from use
For the purposes of embezzlement, lawful possession can result from:
- Fiduciary relationship OR
- Trust agreement
For embezzlement liability, it is important to distinguish between:
- Low-level employees (may not have lawful possession)
- High-level possession
What is false pretenses?
- Obtaining title
- to another’s personal property
- by an intentional false statement of past or present facts
- with the specific intent to defraud
Once title has passed to D illegally, D can only be found guilty of __________.
False pretenses
False pretenses only occurs if there is a false statement of _______, not ______.
Fact
Opinion
False representation does not create false pretenses alone; the false representation must actually ___________.
Cause the owner to pass title
What is commercial puffery?
I dunno, but it’s not false pretenses
What is the willful blindness doctrine?
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
What is robbery?
- Larceny plus
- Force/threat of immediate harm
If someone is convicted of larceny, they cannot be convicted of robbery because ________.
Larceny is an element of robbery
Threat of ______ does not meet the requirement of force or threat of immediate harm for robbery.
Future harm
Robbery requires that the victim be ____________.
Aware of intimidation for robbery
What is forgery?
- Making or altering of
- a writing with apparent legal significance
- so that it is false
- with the intent to defraud
Forgery can be found even if ____________.
No one was actually defrauded
What is extortion?
- Threat of future harm
- Specific intent to cause another person to cede property
For the purposes of extortion, a threat of future harm could involve:
- Threat to cause harm
- Threat to expose information
How is extortion distinguishable from robbery?
- There is no requirement that the property be taken from another’s person or presence
- Threat of future harm is sufficient
- In addition to physical threats, threats of economic/reputational harm are sufficient
Extortion is a ______ intent crime
Specific
What is the crime of receiving stolen property
- D receives stolen property
- D has knowledge that the property is stolen
- D has intent to deprive the owner
Receipt of stolen property is a ________ intent crime
Specific
What is burglary (at common law)?
- Trespassory breaking and entering
- into the dwelling of another
- at night time
- with the specific intent. tocommit a felony inside
When is there trespassory breaking & entering?
- An obstruction must be overcome
- Any momentary intrusion of any part of the body
At common law, what is a dwelling for the purposes of burglary?
A place where another person regularly sleeps
Under modern law, what is a dwelling for the purposes of burglary?
Any structure
When is nighttime for the purposes of burglary?
30 minutes after sunset and 30 minutes before sunrise
What common law requirement for burglary has been eliminated by most jurisdictions?
“at night time”
Can you commit burglary when recovering your own property or the property of another who authorized recovery?
No; lack the specific intent
What is arson at common law?
- The malicious
- burning
- of another’s dwelling
When is there malice for arson?
Intentional or reckless disregard of an obvious or known risk
When is there burning for arson?
Damage to the building was caused. bythe fire
What does a defense do?
Negates criminal liability
Speaking generally, what can a defense be based on?
- Lack of criminal capacity
- Justification
Why is insanity a defense to all crimes?
Insanity negates culpability even if requisite intent necessary for liability is present
How do you set out an insanity defense
By demonstrating the requisite elements as opposed only to expert testimony of a psychiatrist
How can expert testimony be used in an insanity defense?
To show elements of insanity as opposed to merely a psychiatric diagnosis of insanity
What are the four theories of insanity?
- M’Naghten (cognitive) test
- Irresistible Impulse (volitional) test
- Durham (causation) test
- American Law Institute (ALI) or MPC test
Summarize the M’Naughten Test for insanity.
Whether D’s mental disease prevents her from understanding right from wrong
What are the elements of the M’Naghten Rule?
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
The M’Naughten rule does not allow a finding of insanity if:
D understood difference between right and wrong but couldn’t control her conduct
What is the irresistible impulse test for insanity?
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
What is the Durham rule?
D is not guilty by reason of insanity if the crime was the product of a mental disease or defect
Essentially, the Durham test is a ____________ test.
“But for” test
What is the ALI (or MPC) test for insanity?
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
What are the two types of intoxication?
- Voluntary
- Involuntary
Voluntary intoxication involves ________________.
The voluntary ingestion of an intoxicating substance
Voluntary intoxication is only a defense against ____________
Specific intent crimes
What is involuntary intoxication?
The involuntary ingestion of an intoxicating substance.
Involuntary intoxication could occur due to:
- Duress
- Without knowing its nature
- Prescribed by a medical professional
etc.
At common law, there is no criminal liability for children under the age of _____.
Seven
There is a rebuttable presumption of no criminal liability for children under the age of _________.
Seventeen
When may a non-aggressor victim use non-deadly force in self-defense?
Any time the victim reasonably believes that force will be used against her
There is no obligation to _________ before using non-deadly force
Retreat
What are the elements of self-defense using deadly force?
- Victim is not at fault
- Confronted with unlawful force
- Reasonable belief of imminent threat of death or great bodily harm
What is the majority rule regarding duty to retreat before using deadly self-defense
No duty to retreat
What is the true man doctrine?
A true man who is without fault is not obliged to flee from an assailant
In a minority of jurisdictions, a victim must retreat before using deadly force if the victim can do so safely unless:
- Attack takes place in victim’s home
- Police officer making lawful arrest
What kind of language can qualify as initial aggression?
Descriptive language (e.g. I killed your wife). Never insulting language.
An aggressor can only use self-defense as a defense in what exceptional circumstances?
- Initial aggressor effectively withdraws
- Victim escalates fight from non-deadly to deadly force
If a victim escalates a fight from non-deadly to deadly, the initial aggressor must ______ before using deadly force in self-defense.
Retreat
What is the imperfect self-defense doctrine?
Mitigating defense that can reduce murder to voluntary manslaughter. Triggered when D uses good faith but unreasonable self-defense.
A defendant asserting defense of others cannot ____________.
Use force that is excessive in the circumstances
In the majority view, can someone assert defense of others if the other did not have a legal right of self-defense?
If D honestly and reasonably believed the other person had the right to use force in her own defense
What is the alter ego doctrine?
D steps into shoes of the other person and can only assert self-defense if the other person could have done so. Minority view.
When is deadly force allowed in defense of a dwelling?
- Where there is riotous and forcible entry (some jurisdictions)
- D reasonably believes such force is required to prevent unlawful entry by a person who intends to commit a felony/harm someone
When may non-deadly force be used in defense of a dwelling?
End
1. Unlawful entry OR
2. Attack on the dwelling
The use of _________ is never allowed for the defense of property.
Deadly force
Non-deadly force may be used in defense of property in what situations?
- Use of force appears reasonably imminent and request to desist/refrain from interference would not suffice
- Used to regain property wrongfully taken while in immediate pursuit
What is duress?
D is coercively forced under threats from another to commit a criminal act
What are the elements of duress?
D reasonably believed another would inflict death or great bodily harm on her or an immediate family member
Duress is a complete defense to all crimes except ________.
Homicide
Necessity is a defense to a crime if:
- D reasonably believed that committing the crime was necessary to avoid greater harm
- No reasonable alternative
Necessity is not a defense to _______.
Homicide
Necessity is not available to D if ______________
D created the necessity
What’s the difference between necessity v. duress?
Necessity involves threats from natural or physical forces.
Duress involves threats from another person.
What does mistake of fact mean?
If facts were as the accused honestly believed them, she wouldn’t have committed a crime
An unreasonable mistake of fact is a defense only to __________.
Specific intent crimes
Reasonable mistake of fact is available to:
- Specific intent crimes
- General intent crimes
No mistake of fact is ever a defense to ________
Strict liability crimes
When is mistake of law a defense?
Never
When can a person lawfully resist arrest?
When officer has no lawful basis whatsoever to make an arrest on another person
Which parties can never, EVER plead a lawful resistance of arrest?
Third-party onlookers
What is the entrapment defense?
D must establish that she had no predisposition to commit the crime
When is consent a defense to a crime?
Only if lack of consent is an element of the crime
The Bill of Rights only applies to what actions?
- Government actions
- Private conduct sponsored by the government
Does the 8th Amendment “excessive fines” clause apply to states?
Yes, and that probably includes excessive bail
What is the only Bill of Rights guarantee that is not applicable to the States?
Right to indictment by grand jury in felony cases
The exclusionary rule is also known as the _______ doctrine.
Fruit of the poisonous tree
What is the exclusionary rule?
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.
In order to overcome the exclusionary rule, the government must __________.
Establish evidence admissibility by preponderance of the evidence
Whose rights must be violated for D to assert the exclusionary rule?
D’s own
The exclusionary rule generally only applies to _____________.
Evidence presented by P as part of its case in chief at D’s trial
The exclusionary rule is not applicable to:
- Civil proceedings
- Deportation hearings
- Parole revocation proceedings
- Grand jury proceedings
What is the purged taint exception to the exclusionary rule?
If enough additional factors intervene between the violation and discovery of evidence, the evidence may still be admissible
When could D purge the taint and thus circumvent the exclusionary rule?
By committing an intervening act of D’s free will
When will an intervening act of D’s free will NOT purge the taint of a constitutional violation?
Confession given in custody immediately after unconstitutional arrest
What is the independent source rule in regards to purging the taint and the exclusionary rule?
If the evidence was obtained by a source independent of the original constitutional violations, the evidence will not be excluded
What is inevitable discovery in regards to purging the taint and the exclusionary rule?
If evidence would have been inevitably discovered by other investigative techniques even without the original unconstitutionally obtained information, the evidence will not be excluded
What evidence will not be excluded even if there are Miranda violations?
Physical fruits
Evidence obtained in violation of D’s constitutional rights to ____________.
Impeach D’s testimony
______ confessions are not admissible for any purpose
Coerced
Only ________ can be impeached with evidence obtained from illegal search
D
Exclusionary rule doesn’t apply if the police relied in good faith on:
- Judicial opinion
- Statute/ordinance
- Defective search warrant
Police can rely in good faith on a defective warrant unless:
- Warrant was obtained pursuant to an illegal search
- Warrant is facially defective
- Affidavit is lacking in probable cause
- Police lied to/mislead magistrate
- Magistrate is biased
When is a magistrate biased in relation to a warrant?
- Magistrate is also attorney general
- Magistrate is paid per warrant
- Magistrate is not neutral and detached
What is the knock-and-announce requirement?
Under the 4th Amendment, the police must knock and announce their presence and purpose before forcibly entering the premises
What happens if there is a knock-and-announce violation on a valid search warrant?
Evidence not excluded
A state may grant broader rights under its own constitution than ________________.
Are granted by the federal constitution
What does the Fourth Amendment prohibit?
Unreasonable search and seizure
What is an unreasonable search and seizure?
Those involving state actions that intrude upon an individual’s reasonable expectation of privacy
What is the purpose of the Fourth Amendment?
To prevent police and law enforcement misconduct
What is a seizure?
Exercise of control by the government over. person or thing
When does seizure of a person occur?
Only when a reasonable person would believe that she is not free to leave or terminate the encounter with the government
A police officer may stop a person without probable cause for arrest if ________.
The police officer has articulable and reasonable suspicion of criminal activity
Is an automobile stop a seizure subject to 4th Amendment protection?
Yes
Automobile stops are constitutional if objectively justifiable regardless of ____________.
The officer’s subjective motivation
Who is seized during an automobile stop?
Driver and all passengers
When has an arrest occurred?
When police take a suspect into custody against her will for purposes of interrogation and/or prosecution
The police need ________ to make an arrest.
Probable cause
When is there 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
In public, no warrant is required to make an arrest if:
- Officer has reasonable grounds to believe the suspect has committed a felony
- Misdemeanor was committed in the officer’s presence
Does an officer need a warrant to arrest someone in the suspect’s home?
Yes, unless it’s an emergency
An arrest warrant authorizes forcible entry only if _________________.
The officers had reason to believe that the suspect was home at the time of entry.
Other than a suspect, who else in the suspect’s home can only be arrested via warrant?
Overnight guest
What is the effect of an invalid arrest?
No impact on criminal prosecution, but any evidence that is a fruit of the unlawful arrest will be excluded
What is a search?
Government intrusion where a person has. a reasonable and justifiable expectation of privacy
How should you approach unreasonable search and seizure questions?
- State action?
- Does D have a reasonable expectation of privacy?
- Did police have a valid warrant?
- If not, does exception to warrant requirement apply?
Privately paid police are not subject to the 4th Amendment unless ______________.
They have the power to arrest
D has standing to challenge a government search if ___________________.
D has a reasonable expectation of privacy in the item/place searched
The Court has found automatic standing in face of a search where:
- Search takes place in suspect’s home
- Search takes place somewhere owned by the suspect
- Suspect is an overnight guest of property owner
Technically, a suspect lives not only at their home but _______________.
In temporary dwellings like hotel rooms
In these situations, there is a presumption of standing, but it can be overcome:
- Suspect’s property seized
- Suspect is legitimately present on premises searched
A guest on the premises for ________ is less likely to have a legitimate expectation of privacy than _________.
Business
a social guest
There is no standing for ______________.
Items held out to the public
Are public actions and conversations protected by the 4th Amendment?
No; police may eavesdrop
Is handwriting protected by the 4th Amendment?
No
Is paint on a car protected by the 4th Amendment?
No
Are account records held by a bank protected by the 4th Amendment?
No
Can police monitor a suspect’s vehicle in public thoroughfares without a search warrant?
Yes
Is abandoned property protected by the 4th Amendment?
No
Give an example of abandoned property.
Garbage left for collection
Are open fields protected by the 4th Amendment?
As long as they’re not close to a house
What is the 4th Amendment rule for flyovers?
Anything the police can see with the naked eye is considered “plain view”
Can police use high-tech devices without a search warrant?
Not if those devices are not in general civilian use
Can dogs be used without a search warrant?
Yes, since it is a search limited to the presence/absence of contraband
Is wiretapping protected by the 4th Amendment?
Yes; requires a warrant
What is the unreliable ear exception?
Assume that everyone you’re speaking with could be a government informant; if someone consents to being on a wire, no 4th Amendment needed.
Are pen registers protected by the 4th Amendment?
No
What does a pen register do?
Records only numbers dialed on a telephone
When is warrantless wiretapping allowed?
- If one party consents to wearing a wire
- Foreign communications, as long as there’s no substantial likelihood that surveillance will acquire comms to which a US person is a party.
When is a warrant valid?
- Issued on probable cause
- Specifically describe the place to be searched or the person/things to be seized
- Issued on an unbiased magistrate
Just because a warrant was valid when signed by the magistrate doesn’t necessarily mean __________________
It was valid when executed
What probable cause is required for a search warrant?
Probable cause that a reasonable person would believe incriminating evidence will be found
Whether the use of informants is sufficient evidence for probable cause is determined by ________.
The totality of the circumstances
What items is a warrant’s validity limited to?
Those items described in the warrant
Once the items identified in the warrant have been discovered, the warrant does not ___________________
Authorize further exploratory search of the premises
There is no general _______ exception to the warrant requirement
Emergency
Does a search incident to a lawful arrest require a warrant?
No, as long as:
1. Arrest occurs first
2. Search is contemporaneous in time & place with arrest
What is the scope of a search incident to arrest?
Limited to arrestee’s person and area within arrestee’s immediate control
When an arrest takes place in the suspect’s home, the police may ________ without a warrant.
Conduct a protective sweep of immediately adjacent areas
Police just arrested someone in their home. They may make a protective sweep of areas beyond spaces immediately adjacent to the suspect if _______________
They believe others inside the home may pose a danger. Limited to cursory visual inspection. of hiding places.
Is DNA sampling permitted without a warrant?
Yes. May be limited to basic cheek swabs
Can police search a suspect’s cell phone incident to a lawful arrest?
Not without a warrant; they contain too much private information
What part of a car may be searched incident to an arrest without a warrant?
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
In terms of automovile searches, the search need not be _____________________ with the arrest.
Contemporaneous
An arrest for ________________ does not allow for the incidental search of a vehicle.
Traffic violations
Do police need a warrant to search an arrestee’s personal belongings?
No
What is the automobile exception to the search warrant requirement?
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
What is the plain view exception to the search warrant requirement?
Any evidence seen by an officer when the officer has a lawful right to search the area may be admitted
For the plain view requirement, there is no requirement that discovery of evidence in plain view was _________.
Inadvertant
To justify warrantless seizure of an item in plain view, not only must the item be in plain view, but also __________________
Its incriminating character must also be immediately apparent
Even if an object is in plain view and its incriminating nature is immediately apparent, police must still have ________ in order to seize it.
Lawful right to access the object
Police may ask for consent for a search without:
- Informing individuals of their right to refuse consent
- Giving Miranda warnings
Consent to a search must be given ______ and ______.
Voluntarily
Intelligently
If consent is obtained by ___________ of a valid search warrant, the consent is invalid.
A false claim
A person’s consent to search can be effective even if she did not know ___________.
Her right to withhold consent to the search
A search provided via consent only extends to _____________.
Scope of consent
If there are multiple parties in a property, how many must consent to search?
All present (and only those present) parties must consent
When may a third party consent to search?
As long as police reasonably believed the party consenting had the authority to do so
Which third parties may never provide consent to search?
- Landlord
- Hotel manager
What is the hot pursuit exception to the search warrant requirement?
An officer chasing a fleeing felon may make a warrantless search and seizure or follow a suspect into a private dwelling
What is the evanescent evidence exception to the search warrant requirement?
Evidence that would disappear if the police officer waited to obtain a warrant may be seized without warrant
Any ________ must be reasonable in regards to evanescent evidence.
Bodily intrusions
Stop and frisk stops are also known as _________________.
Terry stops
When may an officer make a Terry stop?
Officer has articulable and reasonable suspicion to believe that a person engages in criminal activity.
What may officers look for in a Terry stop?
Frisk for weapons
During a Terry stop, police may question a suspect without ______________.
Reading Miranda warnings
The standard for a Terry Stop is _______, which is lower than _________
Articulable and reasonable suspicion
Probable cause
Articulable and reasonable suspicion for a Terry stop must be based on ________.
Objective facts
Flight only creates reasonable suspicion for a Terry stop if ___________________.
it is a high crime area
When does a Terry stop become an arrest?
If it is sufficiently long or intrusive
How long is a Terry stop reasonably necessary?
As long as needed to verify/dismiss officer suspicions. Generally not longer than a few minutes.
How far can police go in getting verification of identity during a Terry stop?
Ask for oral identification; may not demand document identification
When can a police officer enter clothing during a Terry stop?
When she reasonably believes based on plain feel that it is a weapon or contraband
What technique must an officer use during a pat down?
One feel rule
A police officer may order a driver and passengers to step out of a vehicle during a justified stop even without ___________________.
Suspicion of criminal activity
What is the special needs exception to the search warrant requirement?
Where 4th Amend. intrusion serves special governmental needs
Are routine sobriety checkpoints constitutional?
Yes, as long as:
1. Initial stop
2. Minimal intrusion
3. Seizure is carried according to specific instruction
Are criminal wrongdoing checkpoints constitutional?
The more general the crime control, the more unconstitutional the checkpoints.
Are border searches protected by the 4th Amendment?
No, not for citizens or non-citizens
Are immigration-related searches not at the point of entry protected by the 4th Amendment?
Yes; customs, etc.
Are permanent alien checkpoints constitutional?
Yes, since the intrusion is minimal and the purpose is legitimate
Are roving-patrol traffic stops that supplement the alien checkpoint system constitutional?
Reasonable suspicion is required
Do administrative inspectors need warrants?
Yes, but the probable cause required is lower
Issuance of a warrant for an administrative inspection requires _________.
A general and neutral enforcement plan
Do administrative searches of public school stiddemts require warrants?
Not if officials have reasonable grounds that the search will result in incriminating evidence
Can an administrative investigator make. a warrantless search to seize spoiled or contaminated food?
Yes
What kinds of highly-regulated businesses can an administrative investigator search without a warrant?
- Automobile junkyards
- Arms dealers
- Strip-mining
- Liquor
_____ passengers may be searched without a warrant
Airline
Can parolees be searched without a warrant?
Yes, and so can their homes
Can government employees be searched without a warrant?
No, but their desks and filing cabinets can be
What does the 5th Amendment protect against?
Double jeopardy for the same offense
What jurisdictions does double jeopardy apply to?
- State
- Federal
Double jeopardy only applies to _______ cases.
Criminal
Does double jeopardy apply to arraignments?
No
Does double jeopardy apply when a court accepts D’s guilty plea?
Yes
In a jury trial, jeaopardy attaches when __________.
The jury is selected and sworn in
In a bench trial, jeopardy attaches when _________.
The first witness is sworn in
In civil trial, jeopardy attaches when _______.
Trick question, it never does
In a preliminary hearing, jeaopardy attaches when ______.
Trick question, it never does
What happens to double jeopardy if there is a hung jury?
D may still be retried for the same offense
D may be retried for the same offense if the original trial was aborted for _______________.
Manifest necessity
D who has breached ________ may be retried for the same offense.
Plea bargain
Can D who successfully appealed a conviction be retried for the same offense?
Yes, unless the decision was reversed on insufficient of evidence
Two crimes do not constitute the same offense if each crime requires ________.
An element that the other does not
How does double jeopardy apply to lesser included offenses?
Attachment of jeopardy for the greater offense bars retrial for lesser included offenses
How does double jeopardy apply to greater included offenses?
Attachment of jeopardy for a lesser offense bars retrial for greater included offenses
When could attachment of a lesser offense NOT bar retrial for the greater offense?
- Unable to try both simultaneously (e.g. battery charge and then D dies)
- New evidence that couldn’t have occurred by prosecution or hadn’t been discovered despite due diligence
Acquittal by one sovereign does not bar __________________.
Prosecution by another sovereign
What are “same sovereigns”?
State courts and municipal courts within the same state
Does double jeopardy apply to factual questions?
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
Under what doctrine can denial of dismissal based on double jeopardy be immediately appealed?
Collateral order doctrine
D may object to admissibility of her confession to the police if:
- Confession wasn’t given voluntarily
- Confession was obtained in violation of her Miranda rights
Why must Miranda warnings be given before police interrogation?
Mostly because of the right against self-incrimination
What rights to the Miranda warnings inform D of?
- Right to remain silent
- Right to counsel
The rights to silence and counsel only apply in _________.
Custodial interrogation
When is a person in custody?
When she is not objectively free to terminate an encounter with the government
Is a person in custody if they go voluntarily to the police for questioning?
No
Is a traffic stop custody?
Not the initial period of a routine traffic stop
Is a probation interview custody?
No
Is a tax audit interview custody?
No
What is police interrogation?
Any conduct that police know or should have known was likely to elicit an incriminating response from the suspect
Miranda only applies when D knows _________.
That a government agent is conducting the interrogation
Miranda does not apply to interrogations by ___________.
Informants who D does not know are working for the police
How must a suspect exercise her Miranda rights?
Clearly and unequivocally
When can Miranda rights be exercised?
At any time during questioning
“_____________ I need a lawyer” is not an unequivocal request for an attorney
I think
Do Miranda warnings have to be given verbatim?
No, as long as the substance of the warnings is present
The right to remain silent is ____ specific.
Offense
Once D asserts a right to remain silent, police must not ________________.
Attempt to obtain a waiver of these rights with respect to the same crime
Which Miranda right is not offense specific?
Right to an attorney
The obligation of police to honor the invocation of the Miranda right to counsel terminates after ________.
14 days
How must D waive her Miranda rights in order for the waiver to be valid?
- Knowingly
- Voluntarily
- Intelligently
The burden of proof is on _________ for the waiver of Miranda rights by the suspect
The government
What is a spontaneous statement?
A statement by the suspect that was not made in response to police interrogation
Can silence be admitted to impeach D’s testimony?
Only silence prior to Miranda warnings
What kind of evidence resulting from Miranda violations is still admissible?
Physical fruits
The privilege against self-incrimination extends only to compelled testimonial communications; thus, a criminal suspect may be compelled to make ________.
A recording of her voice
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 _____________________.
Public safety
Made voluntarily by the suspect
Courts will allow an officer to question a suspect about the location of ________ without giving Miranda warnings if it is necessary because of _________.
A weapon
Exigent circumstances
Miranda warnings do not need to be given to a witness subpoenaed to testify in __________.
Grand jury proceedings
The due process clause of the 14th Amendment requires that confessions be _________ to be admissible.
Voluntary
What considerations will courts make in determining whether a confession was coerced?
- Whether the police subjected the suspect to coercive conduct
- Whether the conduct was sufficient to overcome the will of the suspect
When is coercive conduct sufficient to overcome the will of the suspect?
Courts consider totality of the circumstances, including:
1. COnduct of police
2. Suspect’s individual characteristics
There is no Fifth Amendment protection if the confession is not ___________.
Incriminatory
If a person responds to incriminating questions in __________, the person cannot later bar that evidence in criminal prosecution by invoking the Fifth Amendment.
Civil proceeding
The Fifth Amendment only applies to ______ evidence, not _____ evidence.
Testimonial
Physical
The Fifth Amendment will protect compelled statements even if they are not incriminating or introduced as evidence if _______________________.
The statements lead to the discovery of incriminating evidence
In addition to testimony, the Fifth Amendment protects acts of _______ that would have testimonial significance by ________.
Compelled production
Authenticating documents
It is unconstitutional for _____ or _____ to comment negatively on D’s decision not to testify.
Prosecutor
Judge
D voluntarily waives the 5th Amendment by taking _______.
The witness stand
The privilege against compelled incriminating testimony is eliminated if there is no longer _______.
A possibility of incrimination
A witness cannot be compelled to provide potential incriminating testimony unless the witness is granted ___________ immunity
Use and derivative-use
What is transactional immunity?
A witness cannot be prosecuted by the granting sovereign for any crimes the witness is required to testify about
A sovereign who does not grant transactional immunity may prosecute a witness but may not use _________ nor _________.
Immunized testimony
Any other evidence derived from the testimony
What does the Sixth Amendment provide?
The right to counsel at all criminal proceedings
When does the Sixth Amendment apply?
Once D has been formally charged
The Sixth Amendment preventes police from obtaining an incriminating statement ____________________.
Outside of the presence of counsel without first obtaining D’s waiver of counsel
Is the Sixth Amendment right to counsel offense-specific?
Yes; it only attaches for the crimes for which D has not been formally charged.
What is the difference between the Fifth and Sixth Amendment rights to counsel?
Sixth is offense-specific
Indigent defendants are not always entitled to appointment of counsel, so the right to counsel includes ____________________
The broader right to retain an attorney at D’s own expense
If there is a violation of the Sixth Amendment right to counsel at trial, there must be _________.
An automatic reversal of conviction
If there is a violation of the Sixth Amendment right to counsel at any time other than trial, _________ will be applied.
The harmless error test
The right to effective assistance of counsel includes the appoitnment of necessary experts in ________ cases.
Felony
The right to effective counsel includes the appintment of necessary experts in _____
Felony cases
In order to show that there was ineffective assistance of counsel, D must show difficient performance that is:
- Deficient performance was unruly unreasonable
- Result of proceeding would have been different but for the deficiency
A pre-trial identification process must”
- Be fair to the suspect
- Not involve prejudice
- Not violate her due process rights
A suspect lineup violates due process only if:
- It was so unnecessarily suggestive as to give rise to
- A very substantial likelihood of irreparable misidentification
At what lineups does a suspect have the right to the presence of an attorney?
Any post-charge in-person lineup
The right to counsel during identification processes does not apply when:
- Witness is being shown photographs of the suspect
- Police take physical evidence
What is the remedy for an unconstitutional lineup?
Exclusion of in-court identification, since it may have caused irreparable misidentification
A witness may make an in-court identification despite the existence of an unconstitutional pretrial identification if ___________________.
The in-court identification has a reliable independent source under a multi-factor inquiry
A grand jury may indict D based on evidence that would be _____ at trial.
Inadmissible
Does D have a right to notice of grand jury proceedings?
No
Does D have a right to be present at grand jury proceedings?
No
Does D have a right to counsel if called to testify in grand jury proceedings?
No, but D does have a right against self-incrimination
D has no right to confront ______ for a grand jury.
Witnesses called to testify
D has no right to introduce _____ at grand jury proceedings
Evidence
The Sixth Amendment guarantees every D a right to _______.
A speedy trial
When does the right to a speedy trial attach?
Post arrest or charge
Whether the defendant has been given a speedy trial depends on an analysis of ________.
The totality of the circumstances
The remedy for a violation of the right to a speedy trial is ________
Dismissal of the case with prejudice
What rules guide a judge setting bail?
- Not required to set bail in all cases
- No excessive bail
When can bail issues be appealed?
Immediately
When is preventive detention?
- D poses a danger to society
- No amount of bail would ensure D’s appearance at trial
Preventative detention requires __________.
A hearing on the issue
There is a constitutional right to trial by jury for all ______ offenses.
Non-petty
What is a non-petty offense?
Any offense that carries a potential sentence of over 6 months
In 2020, the Supreme Court held that the Sixth Amendment requires ________ to support a conviction for a criminal offense
A unanimous jury verdict
What is the right to venire?
D has a right to have the jury selected from a representative cross-section of the community
Generally, the right to confront witnesses is _______
A face-to-face confrontation with witnesses who are offering testimonials, in the form of cross-examination during a trial
When is D competent to stand trial?
- D has rational and factual understanding of the proceedings against her
- D must be able to consult with/assist counsel in her own defense
When will a judge evaluate competency?
Early in the process, usually with the assistance of experts
At what point in the process may D enter a guilty plea?
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
In order to plead guilty, D must understand the nature of ______ and ______ of the crime(s) charged.
The charges
The crucial elements
In order to plead guilty, D must be advised of the maximum _______ and any mandatory ______.
Possible sentence
Minimums
In order to plead guilty, D must be advised that she has a right to plead ______ and ______.
Not guilty
Go to trial
If prosecution fails to uphold a plea bargain, D has rights to:
- Rescission OR
- Specific performance
The death penalty can be imposed only under a statutory scheme that gives the judge or jury:
- Reasonable discretion
- Full information concerning D
- Guidance in making the decision
How old does someone have to be to be eligible for execution?
At least 18 when the crime was committed
What mental states can a person have at the time of committing a crime that could prevent them from being executed?
- Mentally disabled
- Legally insane
The execution process cannot include _________
Torture or a lingering death
For felony murder, the death penalty is unconstitutional if __________.
D didn’t take, attempt to, or intend to take life
For felony murder, the death penalty is allowed if:
- D was a major participant in the underlying felony
- D acted with a reckless indifference to human life
