Criminal Flashcards
Template for a search & seizure essay
Fourth Amendment to the US Constitution provides that people are to be free from unreasonable searches and seizures. To challenge a governmental search, a person must show that he has standing, which means the person must show he had a reasonable expectation of privacy that was violated. To be reasonable, a search or seizure must be pursuant to a warrant, although there are a number of exceptions.
- Government action
- Defendant must have standing
- Valid warrant
- Exceptions to the warrant requirement
Specific intent crimes
Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts
Solicitation
Conspiracy
Attempt
First degree premeditated murder
Assault
Larceny
Embezzlement
False pretenses
Robbery
Burglary
Forgery
Attempt
(i) specific intent to commit the crime and (ii) some step beyond mere preparation toward completing the crime.
Common law = proximity test. The acts committed by the defendant come dangerously close to completing the crime.
Modern statutes and MPC = substantial step test.
Abandonment and attempt
Common law/general rule = once a defendant has performed sufficient acts to be criminally liable for an attempt, an abandonment of the criminal attempt would not be a defense
MPC = abandonment is a defense if it is fully voluntary (and not due to the difficulty in completing the crime or the increased risk of being caught) and complete (and not a mere postponement)
Plain view exception
A police officer may make a warrantless seizure of evidence if (1) the officer is in a place he is lawfully allowed to be and (2) sees in plain view items that he has (3) immediate probable cause to believe are (4) contraband or evidence, instrumentalities, or fruits of a crime
Miranda warning
To protect the Fifth Amendment privilege against self incrimination, a person in police custody must be given a Miranda warning before a police officer may conduct a custodial interrogation. This privilege is applied to the states through the Due Process Clause of the Fourteenth Amendment.
Any statement, question, or conduct by the police designed to elicit an incriminating response is an interrogation.
A person will be considered in custody if his freedom of action is limited in a significant way.
Exclusionary rule
Under the Supreme Court’s exclusionary rule, evidence obtained in violation of a person’s constitutional rights generally will be excluded from admission into evidence at trial. Under the fruit of the poisonous tree doctrine, the exclusionary rule generally applies to evidence derived from unconstitutionally obtained evidence.
Miranda exception to the exclusionary rule
If the police obtain an unwarned confession from a suspect, warn the suspect, re-question the suspect and obtain a second confession, if it appears there was no “question first, warn later” scheme to get around Miranda, the exclusionary rule will not prevent the admission of the second, warned confession
Common law state of mind tests
- Specific intent = Intent to engage in proscribed conduct
- General intent = Awareness of acting in proscribed manner
- Malice = Reckless disregard of a known risk
- Criminal negligence = Substantial deviation from the standard of care that a reasonable person would have exercised
- Strict liability = Conscious commission of proscribed act
MPC fault standards
- Purposefully = conscious disregard to engage in proscribed conduct (subjective)
- Knowingly = awareness that conduct is of a particular nature or will cause a particular result (subjective)
- Recklessly = consciously disregarding a substantial and unjustifiable risk (subjective and objective)
- Negligently = failure to be aware of a substantial and unjustifiable risk (objective)
Conspiracy
(1) An agreement between two or more persons;
(2) An intent to enter into the agreement; and
(3) An intent by at least two persons to achieve the objective of the agreement
- Specific intent crime
- Majority of states now require an over act (any little act; mere preparation will suffice)
Unilateral v. bilateral conspiracy
Unilateral = Modern, UPC trend, which requires that only one party have genuine criminal intent (ex. conspiracy when one party is an undercover cop)
Bilateral = Common law rule, which requires at least two “guilty minds”
When does a conspiracy terminate?
Upon completion of the wrongful objective. Unless agreed to in advance, acts of concealment are not part of the conspiracy. Important because statements by a co-conspirator are only admissible if they were made in furtherance of the conspiracy.
Larceny
(1) A taking
(2) And carrying away
(3) Of tangible personal property
(4) Of another with possession
(5) By trespass (without consent or by consent induced by fraud)
(6) With intent to permanently deprive (at the time of the taking)
Continuing trespass = defendant wrongfully took the property without intent to permantely deprive, then later decided to keep the property (guilty of larceny)
Embezzlement
(1) The fraudulent
(2) Conversion
(3) Of personal property
(4) Of another
(5) By a person in lawful possession of that property
False pretenses
(1) Obtaining title
(2) To personal property
(3) By an intentional false statement of a past or existing fact
(4) With intent to defraud the other
Larceny by trick
(1) Obtaining custody or possession
(2) To personal property
(3) By an intentional false statement of a past or existing fact
(4) With intent to defraud the other
Robbery
(1) A taking
(2) Of personal property of another
(3) From the other’s person or presence (anywhere in their vicinity)
(4) By force or threats of imminent death or physical injury
(5) With intent to permantely deprive
Involuntary manslaughter
A person commits involuntary manslaughter when he causes a death by criminal negligence.
Criminal negligence is defined as a failure to be aware of a substantial and unjustifiable risk, and that failure constituted a substantial deviation from the standard of care that a reasonable person would have exercised in the same situation.
Alternatively, some states use a recklessness standard for involuntary manslaughter and require that the person consciously disregard a substantial and unjustifiable risk.
Accomplice
A person who (1) with the intent to assist the principal before or during the crime (2) actually aids, counsels, or encourages the principal before or during the commission of the crime
When the underlying crime has a recklessness or negligence mens rea, most jurisdictions hold that the intent element is satisfied if the accomplice (1) intended to facilitate the commission of the crime, and (2) acted with recklessness or negligence
Duress
A person is not guilty of a crime, other than intentional homicide, if he performs an otherwise criminal act under the threat of imminent infliction of death or great bodily harm, so long as he reasonably believes death or great bodily harm will be inflicted on him if he does not perform such conduct.
Sixth Amendment right to counsel
In all criminal prosecutions the defendant has a right to the assistance of counsel during all critical stages of a criminal prosecution after formal proceedings have begun.
- The right is offense specific.
- An officer’s failure to inform a defendant that a lawyer is trying to see them does not violate the Sixth Amendment unless judicial proceedings have commenced.
