Criminal Flashcards
When does a miranda violation occur?
When you are in a custodial interrogation and you are not read your Miranda Rights.
What is a search under the 4th amendment?
Somewhere there is a reasonable expectation of privacy.
When can a cop conduct a search under the 4th amendment?
They have (1) probable cause and (2) warrant
What is probable cause?
When a reasonable person would conclude it’s more probable than not that a crime has taken place
What happens when a search is conducted without a warrant?
The search is illegal and nothing will be admissible UNLESS warrant exception applies
Elements of a warrant
(1) Issued by a neutral and detached magistrate
(2) Facts have to fresh and not out of date
(3) Specific as to the persons or places that need to be searched
Knock and announce
When cops have a warrant, they must knock and announce their identity UNLESS
(1) Dangerous
(2) Futile
If they don’t —> the search will be valid as long as the warrant is
Can cops get probable cause from an informant?
Yes - as long as reliable. Totality of circumstances
What if there was an illegal search, you therefore arrested me from an illegal search?
If the search was bad, and they arrested me as a result of what they found but the search was illegal in the first place, it does not automatically mean that I can get a dismissal of the indictment by itself.
Inventory search
Once you’re at the police station, the cop can do an inventory search of the car and the person
What can the cops search if I am arrested?
You can search me, my person, and anything within my wingspan, anything within my physical control under search incident to a lawful arrest
What are the 3 scenario under search incident to a lawful arrest?
You are arrested in the car –> they can search the passenger compartment
You are arrested and not secured, you are not in the handcuffs, you can still move around and get access —> can search the passenger compartments
If the cops have reasonable belief that there’s evidence in the car itself —> can search the passenger compartments
Exigent circumstances
Reasonable belief that the evidence could be lost or destroyed
List the exceptions to the warrant requirement
- Exigent circumstances
- Search Incident to a lawful arrest
- Consent
- Plain view
- Protective sweep
Warrant exception consent: Who can consent to search of the property?
One who owns or has apparent authority over the premises.
If you own the property or you have apparent authority over the property
Search incident to a lawful arrest
(1) That the arrest was lawful.
Cop pulls you over for no reason and sees cocaine on your face: Are you getting arrested?
No. Cop was not allowed to stop you in the first place because there is no probable cause
Cop pulls you over for a traffic stop - you are not committing a crime. What can he search?
Nothing. He can shine his flashlight but can not search because there is no probable cause. No reasonable belief criminal activity is occurring. Probable cause
Cop pulls you over for a traffic violation - what can he search?
You can pull me over, but you only get further and further inside the car once there’s probable cause or evidence of criminal activity.
Paper bag in passenger seat - can search the passenger side compartments.
Car pulls you over because he has probable cause the car is carrying contraband – what can he search?
The entire care
Is a warrant necessary for a boarder search?
No
Is a warrant necessary for searching outside the US?
No
Do you need a warrant for a dog sniff in a public place?
No. The dog is not conducting a search because no reasonable expectation of privacy.
Can not open up bags
Stop and frisk
The stop is allowed when there’s reasonable suspicion that criminal activity is afoot
Frisk me if there’s further evidence that I may be armed, that I may have a weapon on my person
When should miranda rights be read to you?
When you are subject to custodial interrogation
What is “custody” under miranda rights?
1) Reasonable person would not feel free to leave under those circumstances
2) Objection
What is “interrogation” under miranda rights?
Cop’s statement is trying to elicit a criminal response
What happens when you invoke your right to counsel?
All questioning must cease.
Can you waive you Miranda rights?
Yes; (1) knowingly (2) voluntarily
Incriminating myself: You can not compel D to testify against themselves BUT you can …?
You can compel the D to perform physical demonstrations that are incriminating BUT not communication
Lineups are unconstitutional if
(1) unnecessarily suggestive
- totality of circumstances
When does right to counsel attach for 5th and 6th amendment?
5th amendment: Precharge
6th amendment: After charged
There is no right to counsel at a lineup prior to an indictment.
Right to counsel standard:
Did the lawyer deviate from the norms of what a lawyer usually does and it reasonably probable that the verdict would not have been guilty
You have a right to counsel at…
all critical stages of the proceeding. Most of these are post indictment:
Can co-defendants share one counsel?
Two defendants can have the same counsel but not if any conflict could arise or it would hurt the ability of the lawyer to represent one of them
If you place the undercover cop into the cell to get the suspect to talk, to brag, to boast, and they know that’s gonna get him to start speaking on his own or her own, that violates…
the right to counsel
Guilty plea must be …
Entered voluntarily and intelligently and understand the consequences of what you’re doing
Can you sever in trial?
If two defendants are tried together, if one of those defendants will be unfairly prejudiced, then that defendant can sever the trial and be tried on their own
Define Competency
The defendant must be competent to understand the charges and work with the lawyer to correspond or talk to the lawyer, understand what the lawyers talking about.
The defendant may even be given drugs as crazy as that sounds to get them competent to stand trial.
Examples of what would make or not make a fair trial
(1) Defendant Competency
(2) Biased judge
You have a right to a jury trial when…
The offense has a sentence longer than six months.
Jury should be a cross section of the community
If it’s a state trial with six members, it must be a unanimous verdict versus a state trial with 12 members.
does not need to be unanimous
Federal trial with 12 jurors must be
unanimous
Any exclusion of a juror based on race or gender violates
Equal protection
Does the press have a right to be present at a trial?
Unless the judge has an overriding interest to close the trial.
The defendant has a right to a public trial in all criminal trials.
Right of confrontation: Scenario 1
Co-defendants, one defendant is gonna confess against the other they could, but that confessor must be available to testify because I wanna get them on the stand and get them on cross.
So if one defendant who’s gonna make a confession or they’re using a confession against me, would not be available to testify somehow, that is not permissible.
When can out of court statements that implicate the defendant come into evidence?
Comes down to whether these statements were testimonial or not
If an out-of-court statement is testimonial, which means it was not made during an emergency, it was with the help the police not made during an emergency, then that statement is inadmissible.
When does double jeopardy attach?
Jury: When the jury is sworn and impaneled. Nothing before actual trial Non Jury Trial: When the first witness is sworn in
But once trial number one began, what must there be for double jeopardy to apply?
A final judgment, a judgment on the merits.
Can you be tried in two different states?
Can I be tried in state court and then be tried in federal court?
Yes
Yes
Collateral estoppel scenario
‘m tried for robbery, tried for robbery. Okay? And I’m tried for bank robbery, I’m found not guilty. Then the security guard that was shot during the robbery dies. Now, they wanna try me for felony murder. Okay? I’m tried for the bank robbery and found not guilty. Now the guy dies, the security guard who was shot during the bank robbery, so now they wanna try me for felony murder. Can they try me for felony murder? No. Why can’t they try me for felony murder? Because if you remove the underlying felony from felony murder, can you prove that I committed felony murder? No.
Cruel and unusal punishment
the sentence must be proportionate to the crime and the sentences of other criminals in similar cases.
the death penalty is not considered cruel and unusual punishment as long as there’s procedural safeguards in place to prevent arbitrary or discriminatory sentencing
What rights do you have during sentencing?
Right to counsel and to remain silent
Can you execute someone under 18?
No or anyone who was mentally challenged.
larceny
(1) trespassory taking, carrying away
(2) personal property of another
(3) with the intent to permanently deprive.
Larceny merges into robbery
If I pick up your laptop and I move it an inch wanting to steal it but then the guilt comes, my mother would kill me, I’ll put it back. I’m sorry and I put it back. Am I guilty of the larceny?
Yes, 100% of the time. Why? Because when I touched it, I wanted to steal it. And even if I put it back, have I trespassorily picked something up and taken it away
Burglary
Breaking and entering the dwelling house of another at night with the intent to commit a felony. Common law
Not a commercial establishment
Must have intent to commit the felony
Breaking and entering counts even through fraud
Robbery
The trespassory taking and carrying away of the property of another but by force, intimidation, or fear.
Assault. Both forms
Intent to commit a battery or intent to merely place you in imminent apprehension.
Larceny by trick vs false pretenses
T: You obtain possession of another’s property by some sort of false statement
FP: I’m obtaining your personal property through some sort of false statement, but I obtain title.
- It only becomes false pretenses if you see a two-way transaction involving money
Receiving stolen property
Receiving stolen property, you are in physical possession of the property, you know it was stolen with an intent to keep it
Forgery
The fraudulent making of a false document “that has legal significance” with the intent to make wrongful use
Example = MONEY
Accomplice liability
(1) Specific intent to achieve the crime
(2) aid or abet or help you in accomplishing the crime
Accessory after the fact
The felony was completed, the accessory knew of the completed crime.
Ex) I know you robbed the bank, I know you committed the crime, and I am now giving you aid. I’m helping you get away with it,
Battery
General Intent Crime
Unlawful application of force
Arson
Malice crime
The malicious burning of the dwelling of another
You knew or should have known the dwelling would have burned down
Rape
General intent crime
General intent crimes:
battery, arson, rape, kidnapping
When they give you a statute, you religiously go by the elements of the statute
Generally, no intent is necessary but when they give you a statute, you always have to watch out, could they put the word intent into the statute
Attempt
(1) you have the intent to commit the crime
(2) take some sort of an overt act towards completing the crime
Withdrawal, can you withdraw from the crime of attempt?
No
Merger
Attempt merges into the completed crime
Conspiracy (common law)
Two or more people have the specific intent to commit the crime and we agree
No one’s joking around
conspiracy (MPC)
unilateral theory
only one person on their own has to come to an agreement by themselves with the specific intent to commit a crime
Co-conspirator rule
A co-conspirator will be guilty of any other crime their co-conspirator commits in furtherance of the underlying conspiracy.
The co-conspirator rule says, “If you and I agree to rob the bank, we’re both guilty of conspiracy. We’re gonna meet tomorrow at 9:00 a.m.”
Can you withdraw from conspiracy?
No
You can withdraw from other crimes committed in further and sub the conspiracy if you give your co-conspirators timely notice, if you notify those co-conspirators timely, which means what…before they would have a chance to commit the crime. If I tell my co-conspirators, “I’m not involved in any of that,” then anything they do is on them and I have no guilt on my own.
Solicitation
You encourage, urge, entice another to commit a crime.
You have the intent that the crime should be completed.
