Criminal Flashcards
What is the result of a Fourth Amendment violation?
Suppression of evidence. [F22]
What does the Fourth Amendment protect persons from?
Unreasonable search and seizure. [F22]
When can police make an ARREST without a warrant?
When police have probable cause to believe the person has committed a crime.
Considering the totality of the circumstances, probable cause exists if police have knowledge that would warrant a reasonably prudent person to believe that a person has committed or is committing a crime. [F22]
If information is received anonymously, what is required for it to be reliable for probable cause purposes?
Corroboration [F22]
The Fourth Amendment protects against unreasonable search and seizure from whom?
Government. Not private actors. [F22]
Searches without a warrant are?
Presumptively unreasonable.
One exception: automobile searches because vehicles are inherently movable and thus subject to disappearing (police must still have probable cause that the vehicle contains contraband / other evidence of a crime). [F22]
Searches incident to arrest are limited to what area?
The wingspan of the arrestee. [F22]
Fifth Amendment
protects against self-incrimination [F22]
Under Miranda, once a person is in custody they must…
…be informed of their right to remain silent before interrogation is commenced.
Applies to any police action designed to elicit a response.
A person is in custody once their freedom of movement is restrained. [F22]
A warrantless search is valid where a party gives police ___.
Consent.
Consent may be given by one with actual or apparent authority.
Where multiple parties have common authority over a premises, any one party with authority may grant consent despite the lack of express concurrence by any of the other parties. [J22]
Prior convictions ___ relevant at the sentencing stage, whether or not they are admissible at the guilt stage.
Are. [J22]
How to appeal a criminal conviction in circuit court?
-file a notice of appeal with the circuit court within 30 days of entry of his sentencing order (and transmit notice to opposing counsel) and file a copy of the notice of appeal with the clerk of the Court of Appeals along with the filing fee.
-The notice should contain a statement as to whether a transcript will be filed. The notice must contain the appropriate certificate.
-If a transcript is to be filed it must be filed with the trial court within 60 days.
-Once the trial record has been received by the Court of Appeals of Virginia, you have 40 days to submit his opening brief. [J22]
Definition of abduction
when a person by force or intimidation seizes, takes, transports or detains another person with intent to deprive that person of liberty.
Jerry might defend against the charge by arguing that there is a certain amount of restraint inherent in the commission of robbery, and that here he did not restrain the teller any more than necessary to commit the robbery, and that such restraint of the teller was merely incidental to the robbery. [J15]
Definition of robbery.
taking, with intent to deprive the owner or custodian, permanently, of personal property, from his person or in his presence, against his will, by force, threat or intimidation. [J15]
Crime of attempt definition.
One who intends to commit a crime and commits a direct, but ineffectual act towards commission of the crime.
Abandonment is not a defense. [J15]
When a cell phone is seized incident to arrest its contents…
…may not be searched without further justification. [F16]
Items may be lawfully seized from a vehicle pursuant to the police department’s…
…policy of taking standard inventory of disabled or seized vehicles impounded by the department. [F16]
Murder in the first degree is:
Murder, other than capital murder, by poison, lying in wait, imprisonment, starving,
or by any willful, deliberate, and premeditated killing,
or in the commission of, or attempt to commit, arson, rape, robbery, burglary or abduction.
“Willful, deliberate, and premeditated” means that the defendant acted with a specific intent to kill, adopted at some time before the killing, but which need not exist for any particular length of time. [J16]
Murder is…
…a killing with malice. [J16]
What is malice?
state of mind which results in the intentional doing of a wrongful act to another without legal excuse or justification, at a time when the mind of the actor is under the control of reason.
may result from any unlawful or unjustifiable motive including anger, hatred, or revenge.
may be inferred from any deliberate, willful, and cruel act against another, however sudden. [J16]
A court may order an accused to be tried for all crimes pending in one trail if…
…if justice does not require separate trials and either
The commonwealth attorney and accused agree or
charges are based on the same act or transaction, or on two or more acts or transactions that are connected or constitute parts of a common scheme or plan.
“Spillover prejudice” is one reason justice may require a separate trial. The accused may also wish to testify about only one charge. [J16]
Embezzlement
∆ was in the employ of the store, authorized to have custody of the money, and wrongfully and fraudulently took the money for his own use with the intent to permanently deprive the owner. [J17]
Felony murder is…
…any murder committed, whether intentional or accidental, during the commission of or during an attempt to commit:
* Arson
* Rape
* Robbery
* Burglary
* Abduction
Felony murder is treated as first degree murder.
Death must result from actions of the felon or from acts directly calculated to further the felony or necessitated by the felony, not from circumstances coincident to the felony. [J18]
Felony homicide is…
the accidental killing, contrary to the intention of the parties, while committing some felonious act not specified in the first degree murder and aggravated murder statutes. [J18]
Can D be convicted of a crime and also the conspiracy to commit that crime?
Yes. However, merger prevents the crimes from being charged successively. [J18]
There is no double jeopardy problem where…
…each crime contains an element the other does not. [J18]
Under the plain view exception to the warrant requirement, police may seize illegal items…
…which they observe in plain view so long as they have the right to be where they observe the items and that it is immediately apparent to them that the items are contraband.
In execution of a warrant to search for an object, police are permitted to search…
…any place or container where the object of the search may reasonably be found.
Subjective intent of an officer will not render a stop illegal where the officer also had…
…objectively reasonable suspicion. [F20]
The bailee of a vehicle has both ___ and ___.
Reasonable expectation of privacy as to the vehicle and therefore has standing to object to its search; authority to consent to a search of the vehicle. [F20]
Drug possession requires…
…actual or constructive possession of the drug with knowledge of its character by one who exercises dominion and control of the drug. [F20]
Felony possession of a firearm requires…
…actual knowledge of possession of the firearm.
[From July ’19:] Possession of the firearm does not require active, physical possession. It is sufficient if Jerry held such dominion and control over the firearm such that he had constructive possession of it. [F20]
Does a criminal defendant have a right to a judge in place of a jury?
No.
A jury trial may only be waived with the consent of the defendant, the Commonwealth, and the court.
Same rights for juvenile. [J21]
When a juvenile is ___ years of age or older and is charged with a felony, ___ a direct indictment, …
16; Before.
…the juvenile court shall conduct a preliminary hearing and if the court finds probable cause it will certify the charge to the grand jury.
If the court finds probable cause, the court loses jurisdiction over the charge and any ancillary charges, and the Commonwealth may seek direct indictment. Until this happens, juvenile court has exclusive jurisdiction.
An indictment cures any error or defect in the juvenile court proceeding. [J21]
Even after a suspect is read their Miranda rights, officers must stop interrogating them after a…
…clear indication of their desire to stop talking.
Must be more concrete than an equivocal expression of reservations about answering questions. [J21]
6th Amendment Confrontation Clause
guarantees the right of cross examination, and a defendant can cross-examine a witness as to any evidence that bears on the credibility of the witness.
A plea bargain in exchange for one’s testimony is highly relevant because it means the witness’ testimony may be based on self interest. [J21]
Accomplice liability: Principals in the second degree
persons who aided, advised, or encouraged the principal and were present at the crime. [J21]
Accomplice liability: Accessories before the fact
persons who assisted or encouraged but were not present. [J21]
Accomplice liability: Accessories after the fact
persons who, with knowledge that the other committed a felony, assisted them to escape arrest or punishment. [J21]
Punishment of accomplices
In felony cases, every principal in the second degree and accessory before the fact may be indicted, tried, convicted, and punished in all respects as if a principal in the first degree.
Being an accessory after the fact is a separate crime.
It is not necessary for the principal in the first degree to be convicted of the offense for another party to be convicted. However, it must be shown that a crime has been committed by the principal before the accessory can be convicted. [J21]
Co-conspirators are liable for the…
…reasonably foreseeable acts of their co-conspirators in furtherance of the conspiracy.
Withdrawal communicated to all co-conspirators is a defense to this liability but not for the original conspiracy. [J21]
D was entrapped where:
-The criminal design originated with law enforcement officers, and
-The defendant was not predisposed to commit the crime prior to contact by the government.
The prosecution may use prior crimes to show predisposition, but only if they are:
-close in time,
-similar, and
-such that the probative value outweighs the prejudice. [F21]
Possession and distribution of a drug requires that D knew…
…the character of the substance possessed and distributed. [F21]
An accommodation defense does not result in ___ but rather in ___.
Acquittal; mitigation of the sentence.
Must prove motivation was to accommodate another. [F21]
Opening an unlocked door ___ sufficient for a “breaking.”
Is [F21]
Statutory burglary does not require…
A breaking if it was done at night. [F21]
Can a court overrule a criminal defendant’s objection to a joint trial?
Yes. It is within the court’s discretion.
The main inquiry is whether the objecting party would be prejudiced, e.g. by unrelated crimes of a codefendant. [F21]
