CRIMINAL Flashcards
What is an accomplice?
A person who assists or encourages the principal with the intent that the crime is committed.
Mere presence at the scene is not enough to be considered an accomplice.
Who is not considered an accomplice?
A victim of a crime or ‘necessary party’ is not an accomplice.
What is the liability of an accomplice?
An accomplice is liable for all crimes committed that he aids or encourages and all ‘natural and probable results’ of the crime that he intends to assist.
What is an accessory after the fact?
A person who knowingly assists a person who has committed a felony with the intent to help him avoid arrest, trial, or conviction.
Define first-degree murder.
(with malice aforethought)
An intentional killing with premeditation and deliberation.
(e.g., poisoning someone)
What constitutes voluntary manslaughter?
(without malice aforethought)
An intentional killing of a human being in the heat of passion due to adequate provocation.
Tip: mere words do not count as adequate provocation under the majority view.
(e.g., D finds wife in bed with another or D is punched in the face by someone and is enraged).
Can mere words be adequate provocation in voluntary manslaughter?
Mere words do not count as adequate provocation under the majority view.
What is second-degree murder characterized by?
(with malice aforethought)
(1) Extreme recklessness (e.g., D shoots his gun in a crowded room without intent to kill).
(2) Intentional infliction of great bodily harm and death results (e.g., D cuts someone’s legs off without intent to kill him but he dies).
(3) Catchall: D is not guilty of first-degree murder but acts with malice; D can intend to kill (e.g., D shoots and kills someone because he is enraged after being insulted by them).
Often this category looks like vol. manslau. but D is not adeq. provoked
What constitutes involuntary or misdemeanor manslaughter?
(without malice aforethought)
A killing due to gross negligence or recklessness (e.g., a parent does not take his extremely sick infant to the free local clinic and the infant dies), or
A killing during a misdemeanor or felony that does not qualify for felony murder (misdemeanor manslaughter rule).
What is felony murder?
(with malice aforethought) D commits a felony and someone other than a co-felon dies. The death can occur during the commission of the felony, the attempt to commit it, or the flight from it.
* The felony must be inherently dangerous (e.g., robbery, arson, rape, kidnapping, and burglary).
* There must be causation: Under the agency theory, the felon or his agent (co-felon) must cause the death. Under the proximate cause theory, the felon is liable so long as he “sets in motion” the acts that cause the death.
Define assault.
An attempted battery or the intentional infliction of apprehension.
What is larceny?
The trespassory taking and carrying away of personal property of another with the intent to permanently deprive them thereof.
What is larceny by trick?
D intentionally makes a false representation of material past or existing fact to obtain custody (but not title) of personal property of another.
What is false pretenses?
This is the same as larceny by trick, except D obtains title to the property with the intent to defraud.
Tip: Look at what the victim intends to do at the time he hands over the property. If the victim hands it over and never intends to get the property back, it is false pretenses. Otherwise, it is larceny by trick.
What is embezzlement?
The fraudulent conversion or misappropriation of property of another by someone who is already in lawful possession of that property.
What are the elements of robbery?
Larceny + a taking from another’s person or presence + force or threat of force.
Tip: D must use force or the victim must feel fear. (If the victim is not afraid and no
force is used, D cannot be liable for robbery.)
What constitutes burglary?
Breaking and entering the dwelling of another at night with the intent to commit a felony or larceny therein.
Tip: D must have the intent to commit the felony or larceny at the time he breaks in. He cannot form it while inside.
Fill in the blank: First-degree murder and inchoate crimes are also ____.
[Specific intent crimes.]
Fill in the blank: The specific intent to complete a crime is known as _______.
[Attempt]
* MPC/majority: a “substantial step” that is “strongly corroborative” of the criminal purpose. * Common law: D gets “dangerously close” to committing the crime.
What is conspiracy?
The specific intent to enter into the
agreement and accomplish its objectives.
Note: an overt act is not required at common law.
An agreement by two or more people to commit a crime and an overt act in furtherance of the crime (in some states).
What is solicitation?
The specific intent that the crime be committed.
True or False: One cannot be convicted of both attempt and the completed crime.
True.
Attempt merges with the complete crime. So, someone can just be convicted for attempt or the complete crime, never both
True or false: One can be convicted of conspiracy and the completed crime.
True. Conspiracy does not merge.
D is also liable for all other crimes committed by his coconspirators so long as the crimes were foreseeable and in furtherance of the conspiracy. (Withdrawal is not a defense but will cut off liability for any crimes committed after the withdrawal.)
True or false: One can be convicted of solicitation and the completed crime.
False. Solicitation does merge.
Nobody can be convicted of solicitation and the completed crime.
What is the standard for general intent?
The defendant is generally aware of what he is doing; motive is immaterial.
Define battery.
The unlawful application of force to another resulting in bodily injury or offensive touching.
What is strict liability?
There is no mens rea; engaging in the act is sufficient.
(Statutory rape and regulatory offenses)
Examples of strict liability crimes include selling contaminated food, littering, and vehicular traffic offenses.
What is rape defined as?
Unlawful sexual intercourse without consent using force or threat of force.
What is kidnapping?
Unlawful confinement or restraint that involves moving or hiding the victim.
What is malice?
D acts recklessly.
(Arson and second-degree murder)
What is arson?
The malicious burning of the dwelling of another.
What is statutory rape?
Sexual intercourse with a minor.
When can self-defense be invoked?
Available if D reasonably believed force was necessary to avoid the imminent use of unlawful force by another.
Defense of others is also a recognized defense.
What must a defendant prove for the insanity defense?
Most jurisdictions use the M‘Naghten rules. D must prove he suffered a disease of the mind that caused a defect of reason and he lacked the ability to know the
wrongfulness of his actions or understand the nature and quality of his actions.
What constitutes incompetency to stand trial?
If D is unable to understand the nature of the proceedings against him or assist his lawyer, he may be incompetent to stand trial.
What is the difference between voluntary and involuntary intoxication in legal defenses?
Voluntary intoxication is a defense to specific intent crimes only if it negates the specific intent. Involuntary intoxication is treated the same as insanity.
When is Mistake of fact a good defense?
For specific intent crimes, a reasonable or unreasonable MOF can serve as a defense. For general intent or malice crimes, only a reasonable MOF is a defense. For strict liability crimes, MOF is not a defense.
True or False: Mistake of law is generally a valid defense.
False.
Generally, MOL is not a defense (even when relying on one’s lawyer!). There are very narrow exceptions to this general rule.
When is necessity a defense?
This is a defense if D reasonably believed his criminal conduct was necessary to prevent a greater harm and is not at fault in creating the situation that required
the necessity.
What is duress?
This is a defense if D reasonably feared that if he did not perform the crime, either he or another would suffer imminent death or serious bodily injury. Duress cannot be used as a defense to homicide.
What are the principles of Burdens of proof and persuasion?
The prosecution must prove every element of a crime beyond a reasonable doubt. D may be required to prove any affirmative defenses.
What is the legal principle regarding acts and omissions?
D must engage in a voluntary act. D is not liable for a failure to act (omission) unless there is a legal duty to act.
E.g., a duty created by a statute, contract, or
relationship (e.g., spouse to spouse or parent to child).
Under what circumstances does a state have jurisdiction?
Federal courts have jurisdiction over federally owned territory (the District of Columbia) and over conduct on ships or aircrafts. Federal courts also hear cases involving federal crimes. A state has jurisdiction if an act or omission that was part of the crime occurred in the state or the result occurred in that state.
What is required for a valid warrant?
A valid warrant requires probable cause, particularity, and must be issued by an unbiased magistrate.
When is an arrest warrant not needed?
An arrest warrant is not needed if the suspect is in a public place. An arrest warrant is needed if D is at his home or at the home of a third party (in the latter case, a search warrant is also needed).
What is the exclusionary rule?
If the Fourth Amendment is not satisfied, the exclusionary rule applies. Evidence is excluded from the prosecution’s case-in-chief. But, it can still be used (SIICK) if D does not have standing, for impeachment, if discovery was inevitable (or if there was an independent source or the taint disappeared), in civil (and other non-criminal) proceedings, or if the knock and announce rule was violated.
Good faith or a reasonable mistake by the officer saves a defective warrant. What are the exceptions to this?
This is not present if there are serious problems with the affidavit (e.g., it is based on an officer’s lies), search warrant, or magistrate (e.g., if she is not neutral).
What is the automobile exception in search and seizure?
Officers can search an automobile if they have probable cause to believe that evidence, instrumentalities, or fruits of a crime exist within it.
Tip: this includes the trunk if there is probable cause to believe evidence is in the trunk.
What is a search incident to arrest?
At the time of a lawful arrest (or “contemporaneous” with it), an officer may conduct certain searches of the arrestee (including his person, clothing, and his
“wingspan” or grabable space) without a warrant in order to keep the officer safe and to preserve evidence.
Tip: the officer may not search the trunk under this exception.
Exception if the arrestee is in a vehicle: once the arrestee is secured, the police officer can
only search the vehicle if it is reasonable to believe it contains evidence of the crime for which the suspect was arrested.
What is the plain view doctrine?
An officer, who is lawfully present in the area that he is in, may seize an item
if it is “immediately apparent that it is contraband or evidence of a crime.”
Tip: this extends to other senses as well (plain smell and plain feel).
What are the three common scenarios for administrative searches?
- Officers can search arrestees and impounded vehicles.
- Public school officials can search students and their personal effects upon reasonable suspicion.
- Random drug testing is permitted for public school children involved in any extracurricular activities.
What is required for consent to search?
If one with actual or apparent authority to consent gives consent voluntarily, officers may search the areas to which they understand the consent to extend.
Tip: a cotenant can consent to search of areas over which he has control but other cotenants who are present may revoke the consent.
What are emergency circumstances that allow for a warrantless search?
- When an officer is in hot pursuit of a suspect.
- If there is a serious injury or threat of injury.
- If evidence of a crime likely will disappear before a warrant can be obtained.
(Tip: in the hot pursuit, there must be probable cause to believe that the suspect has committed a crime and he is in a particular place)
What is a Terry stop?
Is an exception where only reasonable suspicion is needed. For a Terry stop, the officer needs reasonable suspicion that criminal activity is afoot.
What is a Terry frisk?
Is an exception where only reasonable suspicion is needed. The officer needs a reasonable belief that the suspect is armed and dangerous.
Tip: the officer can only frisk for weapons
What does the Fifth Amendment privilege against self-incrimination protect?
This privilege protects a witness from having to give testimony against himself. The prosecution may give use or transaction immunity to the witness to compel the witness to testify.
Tip: This privilege does not apply when the government admits D’s blood, handwriting, or voice against him in court. Further, it does not apply to lineups.
What is double jeopardy as defined by the Fifth Amendment?
No person shall be “subject for the same offense to be twice put in jeopardy of life or limb.”
Tip: the Double Jeopardy Clause does not prevent reprosecution when the prosecution is conducted by different sovereigns (e.g., the state and federal government, or different states)
When does jeopardy “attach” in a jury trial?
Jeopardy “attaches” when the jury is impaneled and sworn in a jury trial or when the first witness is sworn in a bench trial. The Double Jeopardy Clause prevents both reprosecution after acquittal and after
conviction (if the guilty verdict was set aside due to insufficient evidence presented at trial), and reprosecution for the same offense.
What is the Blockburger test used for?
To determine if two offenses are considered the ‘same offense’ under the Double Jeopardy Clause. If each crime contains an element that the other does not, they are not considered to be the “same offense.”
What is the right to counsel as stated in the Sixth Amendment?
Each D has the right to effective assistance of counsel. This extends to the first appeal.
How must be composed the jury according to the Sixth Amendment?
The jury pool must represent a cross-section of the community.
Tip: the jury itself need not be diverse.
What must a defendant show to prove ineffective assistance of counsel?
D must show that his lawyer’s performance was deficient and fell below an objective standard of reasonableness and there is a reasonable probability that but for the
ineffective assistance, the result would be different.
Tip: this is difficult to show!
When can a defendant withdraw a guilty plea?
D may withdraw a guilty plea before
sentencing at any time. If sentencing has taken place, D must show a fair and just reason to withdraw it (e.g., counsel was ineffective, the plea was involuntary, the prosecutor did not act as promised, or the wrong court heard the plea).
What does the Eighth Amendment prohibit?
Punishment cannot be excessive in comparison to the crime.
There are some defendants who cannot be given the death penalty. Which are?
Those with an intellectual disability; those who are insane at the time the execution is set; those who were minors when they committed a crime; those who rape a person if the victim didn’t die; and those who are convicted of felony murder but “neither took life, attempted to take life, nor intended to take life” (e.g., the getaway
driver).
The PDF implies there could be more cases.
What is a plain error in the context of appeal and error?
A plain error is one that affects his substantial rights and is appealable even if not objected to during trial.
When does the Sixth Amendment right to counsel attach?
This right attaches when D is formally charged. It attaches to all “critical stages” of the proceedings thereafter.
There is no right to counsel for a pre-charge lineup, as this right attaches upon being charged!
Regarding confessions and self-incrimination, what does the Sixth Amendment rule?
Police cannot deliberately elicit an incriminating statement after formal charges have been filed unless D has counsel or waives his right. It is offense-specific.
Tip: This right exists for post-charge lineups and show-ups but not photo identifications, finger printing, or other forms of identification.
What is the exclusion rule regarding confessions under the Sixth Amendment?
Any confession is excluded in the prosecutor’s case-in-chief but may be used for impeachment.
When does the Fourteenth Amendment due process applies?
This applies when police engage in coercive conduct that overcomes the suspect’s will.
What is excluded under the rule of exclusion of the Fourteenth Amendment?
An involuntary confession and “fruits” of confession are not admissible for any purpose.
What rights are included in the Fifth Amendment Miranda rights?
The Fifth Amendment contains the right to remain silent and the right to counsel. This right attaches whenever there is a custodial interrogation.
Can police interrogate a suspect in custody without counsel?
No, police cannot interrogate a suspect who is in custody without counsel or a waiver (exception: public safety).
The waiver must be “knowing, intelligent, and voluntary.”
What is required for an invocation of rights?
It must be explicit and unequivocal
Remaining silent is not sufficient; one must verbally invoke the right.
True or False: Remaining silent is enough to invoke Miranda rights.
False. An invocation must be explicit and unequivocal.
Tip: Remaining silent is not enough. Ironically, one must speak.
What is and is not admitted under the exclusion of the Fifth Amendment?
Any confession is excluded in the prosecutor’s case-in-chief.
Tip: the confession may not be admitted (except for impeachment), but if it led to physical fruits (e.g., evidence like the murder weapon), those fruits may be admitted.
What is homicide?
A killing of a human being
Types of homicide?
- Intentional killings: defendant acts with intent to kill.
- Unintentional killings: D does not always act with intent to kill, but can
4 types of common law murder?
At common law, murder is the unlawful killing of another human being with malice aforethought.
Malice aforethought encompasses:
1) Intent-to-kill murder (with premeditation and deliberation).
2) Grievous-bodily-harm murder (killing someone in attack intended to cause them grievous bodily harm).
3) Felony-murder (killing someone while in the process of committing a felony).
4) Depraved heart murder (killing someone in a way that demonstrates a callous disregard for the value of human life).
What are specific intent crimes?
The ones that D intentionally or knowingly commits.
E.g.: burglary, First-degree murder, inchoate crimes, robbery, attempt, conspiracy, solicitation, etc.
Which crimes merge?
Attempt and Solicitation merge with the completed crime.
Conspiracy does not merge.
So, somebody can be convicted of conspiracy and the completed crime, but cannot be convicted of attempt/solicitation and the completed crime.
Which crimes merge?
Attempt and Solicitation merge with the completed crime.
Conspiracy does not merge.
So, somebody can be convicted of conspiracy and the completed crime, but cannot be convicted of attempt/solicitation and the completed crime.
What is solicitation?
The specific intent crime when D requests, encourages, advises, or commands that someone commit a crime.
Factual impossibility and withdrawing are defenses to inchoate crimes?
No.
Factual impossibility (e.g., the crime was impossible to complete) and withdrawing (e.g., changing one’s mind) generally are not defenses to inchoate crimes.
Under the common law, can Conspiracy exist with just one person?
No. Conspiracy requires a bilateral agreement under the common law.
“Unilateral” conspiracy is a new modern rule.
