CRIMINAL

Question 1

What is an accomplice?

Answer 1

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.

Question 2

Who is not considered an accomplice?

Answer 2

A victim of a crime or ‘necessary party’ is not an accomplice.

Question 3

What is the liability of an accomplice?

Answer 3

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.

Question 4

What is an accessory after the fact?

Answer 4

A person who knowingly assists a person who has committed a felony with the intent to help him avoid arrest, trial, or conviction.

Question 5

Define first-degree murder.

Answer 5

(with malice aforethought)
An intentional killing with premeditation and deliberation.

(e.g., poisoning someone)

Question 6

What constitutes voluntary manslaughter?

Answer 6

(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).

Question 7

Can mere words be adequate provocation in voluntary manslaughter?

Answer 7

Mere words do not count as adequate provocation under the majority view.

Question 8

What is second-degree murder characterized by?

Answer 8

(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

Question 9

What constitutes involuntary or misdemeanor manslaughter?

Answer 9

(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).

Question 10

What is felony murder?

Answer 10

(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.

Question 11

Define assault.

Answer 11

An attempted battery or the intentional infliction of apprehension.

Question 12

What is larceny?

Answer 12

The trespassory taking and carrying away of personal property of another with the intent to permanently deprive them thereof.

Question 13

What is larceny by trick?

Answer 13

D intentionally makes a false representation of material past or existing fact to obtain custody (but not title) of personal property of another.

Question 14

What is false pretenses?

Answer 14

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.

Question 15

What is embezzlement?

Answer 15

The fraudulent conversion or misappropriation of property of another by someone who is already in lawful possession of that property.

Question 16

What are the elements of robbery?

Answer 16

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.)

Question 17

What constitutes burglary?

Answer 17

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.

Question 18

Fill in the blank: First-degree murder and inchoate crimes are also ____.

Answer 18

[Specific intent crimes.]

Question 19

Fill in the blank: The specific intent to complete a crime is known as _______.

Answer 19

[Attempt]

* MPC/majority: a “substantial step” that is “strongly corroborative” of the criminal purpose. * Common law: D gets “dangerously close” to committing the crime.

Question 20

What is conspiracy?

Answer 20

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).

Question 21

What is solicitation?

Answer 21

The specific intent that the crime be committed.

Question 22

True or False: One cannot be convicted of both attempt and the completed crime.

Answer 22

True.

Attempt merges with the complete crime. So, someone can just be convicted for attempt or the complete crime, never both

Question 23

True or false: One can be convicted of conspiracy and the completed crime.

Answer 23

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.)

Question 24

True or false: One can be convicted of solicitation and the completed crime.

Answer 24

False. Solicitation does merge.

Nobody can be convicted of solicitation and the completed crime.

Question 25

What is the standard for general intent?

Answer 25

The defendant is generally aware of what he is doing; motive is immaterial.

Question 26

Define battery.

Answer 26

The unlawful application of force to another resulting in bodily injury or offensive touching.

Question 27

What is strict liability?

Answer 27

There is no mens rea; engaging in the act is sufficient. (Statutory rape and regulatory offenses) ## Footnote Examples of strict liability crimes include selling contaminated food, littering, and vehicular traffic offenses.

Question 28

What is rape defined as?

Answer 28

Unlawful sexual intercourse without consent using force or threat of force.

Question 29

What is kidnapping?

Answer 29

Unlawful confinement or restraint that involves moving or hiding the victim.

Question 30

What is malice?

Answer 30

D acts recklessly. (Arson and second-degree murder)

Question 31

What is arson?

Answer 31

The malicious burning of the dwelling of another.

Question 32

What is statutory rape?

Answer 32

Sexual intercourse with a minor.

Question 33

When can self-defense be invoked?

Answer 33

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.

Question 34

What must a defendant prove for the insanity defense?

Answer 34

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.

Question 35

What constitutes incompetency to stand trial?

Answer 35

If D is unable to understand the nature of the proceedings against him or assist his lawyer, he may be incompetent to stand trial.

Question 36

What is the difference between voluntary and involuntary intoxication in legal defenses?

Answer 36

Voluntary intoxication is a defense to specific intent crimes only if it negates the specific intent. Involuntary intoxication is treated the same as insanity.

Question 37

When is Mistake of fact a good defense?

Answer 37

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.

Question 38

True or False: Mistake of law is generally a valid defense.

Answer 38

False. Generally, MOL is not a defense (even when relying on one’s lawyer!). There are very narrow exceptions to this general rule.

Question 39

When is necessity a defense?

Answer 39

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.

Question 40

What is duress?

Answer 40

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.

Question 41

What are the principles of Burdens of proof and persuasion?

Answer 41

The prosecution must prove every element of a crime beyond a reasonable doubt. D may be required to prove any affirmative defenses.

Question 42

What is the legal principle regarding acts and omissions?

Answer 42

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. ## Footnote E.g., a duty created by a statute, contract, or relationship (e.g., spouse to spouse or parent to child).

Question 43

Under what circumstances does a state have jurisdiction?

Answer 43

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.

Question 44

What is required for a valid warrant?

Answer 44

A valid warrant requires probable cause, particularity, and must be issued by an unbiased magistrate.

Question 45

When is an arrest warrant not needed?

Answer 45

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).

Question 46

What is the exclusionary rule?

Answer 46

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 **s**tanding, for **i**mpeachment, if discovery was **i**nevitable (or if there was an independent source or the taint disappeared), in **c**ivil (and other non-criminal) proceedings, or if the **k**nock and announce rule was violated.

Question 47

Good faith or a reasonable mistake by the officer saves a defective warrant. What are the exceptions to this?

Answer 47

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).

Question 48

What is the automobile exception in search and seizure?

Answer 48

Officers can search an automobile if they have probable cause to believe that evidence, instrumentalities, or fruits of a crime exist within it. ## Footnote Tip: this includes the trunk if there is probable cause to believe evidence is in the trunk.

Question 49

What is a search incident to arrest?

Answer 49

*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. ## Footnote ***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.

Question 50

What is the plain view doctrine?

Answer 50

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.” ## Footnote Tip: this extends to other senses as well (plain smell and plain feel).

Question 51

What are the three common scenarios for administrative searches?

Answer 51

* 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.

Question 52

What is required for consent to search?

Answer 52

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. ## Footnote Tip: a cotenant can consent to search of areas over which he has control but other cotenants who are present may revoke the consent.

Question 53

What are emergency circumstances that allow for a warrantless search?

Answer 53

* 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. ## Footnote (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)

Question 54

What is a Terry stop?

Answer 54

Is an exception where only reasonable suspicion is needed. For a Terry stop, the officer needs reasonable suspicion that criminal activity is afoot.

Question 55

What is a Terry frisk?

Answer 55

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

Question 56

What does the Fifth Amendment privilege against self-incrimination protect?

Answer 56

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. ## Footnote 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.

Question 57

What is double jeopardy as defined by the Fifth Amendment?

Answer 57

No person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” ## Footnote 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)

Question 58

When does jeopardy "attach" in a jury trial?

Answer 58

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*.

Question 59

What is the Blockburger test used for?

Answer 59

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.”

Question 60

What is the right to counsel as stated in the Sixth Amendment?

Answer 60

Each D has the right to effective assistance of counsel. This extends to the *first appeal*.

Question 61

How must be composed the jury according to the Sixth Amendment?

Answer 61

The jury pool must represent a cross-section of the community. Tip: the jury itself need not be diverse.

Question 62

What must a defendant show to prove ineffective assistance of counsel?

Answer 62

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!

Question 63

When can a defendant withdraw a guilty plea?

Answer 63

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).

Question 64

What does the Eighth Amendment prohibit?

Answer 64

Punishment cannot be excessive in comparison to the crime.

Question 65

There are some defendants who cannot be given the death penalty. Which are?

Answer 65

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.

Question 66

What is a plain error in the context of appeal and error?

Answer 66

A ***plain error*** is one that affects his substantial rights and is appealable even if not objected to during trial.

Question 67

When does the Sixth Amendment right to counsel attach?

Answer 67

This right attaches when D is *formally charged*. It attaches to all "critical stages" of the proceedings thereafter. ## Footnote There is no right to counsel for a pre-charge lineup, as this right attaches upon being charged!

Question 68

Regarding confessions and self-incrimination, what does the Sixth Amendment rule?

Answer 68

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.* ## Footnote Tip: This right exists for post-charge lineups and show-ups but not photo identifications, finger printing, or other forms of identification.

Question 69

What is the exclusion rule regarding confessions under the Sixth Amendment?

Answer 69

Any confession is excluded in the prosecutor's case-in-chief but may be used for impeachment.

Question 70

When does the Fourteenth Amendment due process applies?

Answer 70

This applies when police engage in coercive conduct that overcomes the suspect’s will.

Question 71

What is excluded under the rule of exclusion of the Fourteenth Amendment?

Answer 71

An involuntary confession and “fruits” of confession are not admissible for *any* purpose.

Question 72

What rights are included in the Fifth Amendment Miranda rights?

Answer 72

The Fifth Amendment contains the right to remain silent and the right to counsel. This right attaches whenever there is a *custodial interrogation*.

Question 73

Can police interrogate a suspect in custody without counsel?

Answer 73

No, police cannot interrogate a suspect who is in custody without counsel or a waiver (exception: public safety). ## Footnote The waiver must be “knowing, intelligent, and voluntary.”

Question 74

What is required for an invocation of rights?

Answer 74

It must be explicit and unequivocal ## Footnote Remaining silent is not sufficient; one must verbally invoke the right.

Question 75

True or False: Remaining silent is enough to invoke Miranda rights.

Answer 75

False. An invocation must be explicit and unequivocal. ## Footnote Tip: Remaining silent is not enough. Ironically, one must speak.

Question 76

What is and is not admitted under the exclusion of the Fifth Amendment?

Answer 76

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.

Question 77

What is homicide?

Answer 77

A killing of a human being

Question 78

Types of homicide?

Answer 78

* Intentional killings: defendant acts with intent to kill. * Unintentional killings: D does not always act with intent to kill, but can

Question 79

4 types of common law murder?

Answer 79

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).

Question 80

What are specific intent crimes?

Answer 80

The ones that D intentionally or knowingly commits. E.g.: burglary, First-degree murder, inchoate crimes, robbery, attempt, conspiracy, solicitation, etc.

Question 81

Which crimes merge?

Answer 81

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.

Question 82

Which crimes merge?

Answer 82

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.

Question 83

What is solicitation?

Answer 83

The specific intent crime when D requests, encourages, advises, or commands that someone commit a crime.

Question 84

**Factual impossibility** and **withdrawing** are defenses to inchoate crimes?

Answer 84

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.

Question 85

Under the common law, can Conspiracy exist with just one person?

Answer 85

No. Conspiracy requires a bilateral agreement under the common law. "Unilateral" conspiracy is a new modern rule.