Criminal

Question 1

What is required for embezzlement?

Answer 1

The fraudulent conversion of property of another by a person who is in lawful possession of the property
Lower-level employees can generally not be guilty of embezzlement, as such an employee typically has custody, not possession of the employers property

Question 2

What is voluntary intoxication a defense to?

Answer 2

Specific-intent crimes (FIAT) only if if prevented the defendant from forming the mens rea

Question 3

What is seizure?

Answer 3

An officer, by means of physical force or show of authority, intentionally terminate or restrains the subjects freedom of movement
Test: would a reasonable person would feel free to disregard the officer
Ex. Suspect is shot in the leg

Question 4

When are warrantless arrests appropriate?

Answer 4

• The officer sees a crime being committed or someone told the officer a crime has been committed
• If someone told the officer about a crime, the crime must have been a felony.

Question 5

When are roadblocks allowed?

Answer 5

If the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles

Question 6

When are searches of automobiles allowed?

Answer 6

If police have probable cause to believe an automobile contains contraband, they can search those parts of the vehicle, and containers inside, which could contain that contraband

Question 7

When is manifest necessity for mistrial required?

Answer 7

When the defendant did not request (or objected to) a mistrial

Question 8

What is true of attempt?

Answer 8

It is a specific-intent crime, even when the completed offense is only a general-intent or malice crime

Question 9

What is true under the agency theory of felony murder?

Answer 9

The felon is not liable for the death of a bystander caused by a police officer because the officer is not the felon’s agent

Question 10

What is true of attempt?

Answer 10

It is a specific-intent crime, even when the completed offense is only a general-intent or malice crime

Question 11

What is true under the agency theory of felony murder?

Answer 11

The felon is not liable for the death of a bystander caused by a police officer because the officer is not the felon’s agent

Question 12

When can a defendant attack a facially valid warrant?

Answer 12

When the defendant can establish, by a preponderance of evidence, that 1) the affidavit contained false statements that were made by the affirms knowingly, intentionally, or with a reckless disregard of their truth; 2) the false statements were necessary to the finding of probable cause

Question 13

When can police enter evidence obtained through an informant after the defendant invoked his 6th Amendment right to counsel?

Answer 13

When the incriminating statements are used for impeachment purposes

Question 14

When does the exclusionary rule not apply?

Answer 14

The exclusionary rule does not apply in non-criminal proceedings
It does not apply when evidence is introduced to impeach against the defendant
It does not apply to civil proceedings

Question 15

What must the defendant show to prove a Brady violation?

Answer 15

• The evidence is within the control of the government (including police)
  The evidence is favorable to the defendant (exculpatory or impeaches)
• The failure to disclose CAUSED prejudice against the defendant (there is a reasonable probability of a different outcome had the evidence been disclosed earlier)
  *Does not apply to plea bargain or post-conviction proceedings

Question 16

When can double jeopardy bar a retrial after the defendant is convicted and appeals, and gets the conviction reversed?

Answer 16

If the reversal was based on insufficiency of the evidence

Question 17

How do you withdraw as an accomplice?

Answer 17

• Repudiate prior aid
• Do all that is possible to countermand prior assistance
• Do so before the chain of events is in motion and unstoppable

Question 18

What happens during imperfect of self-defense?

Answer 18

The charge of murder is reduced to voluntary manslaughter if a defendant honestly but unreasonably believes that deadly force is required to prevent death or serious bodily injury

Question 19

What is the difference between accessory before the fact and principal in the second degree?

Answer 19

Presence

An accomplice who is physically or constructively present during the commission is a principal in the second degree.

Question 20

What is true of factual impossibility?

Answer 20

It is not a defense if the crime attempted is factually impossible to commit due to circumstances unknown to the defendant

Question 21

When is inadvertent disclosure not a waiver of privilege?

Answer 21

If a holder took reasonable steps to prevent disclosure and reasonable steps to rectify disclosure

Question 22

When is disclosure in a state proceeding not a waiver in a later federal proceeding?

Answer 22

If the disclosure would’ve not been a waiver in federal court or was not a disclosure under state law

Question 23

When may the death penalty be imposed on an accomplice during felony murder?

Answer 23

When the accomplice defendant killed, attempted to kill, intended to kill, or significantly participated in the commission of a felony and acted with reckless indifference to human life

Question 24

What is true of double jeopardy and collateral estoppel?

Answer 24

Where a jury acquits a defendant of an offense that is a lesser included offense of another offense over which the jury deadlocks, the jury determination that the defendant did not commit the lesser included offense precludes the prosecution from retrying the defendant on the greater offense

Question 25

When does the right to a jury trial attach?

Answer 25

For all serious offense, which have an authorized punishment of more than 6 months.

Question 26

What is a requirement for aggravating circumstances for the death penalty?

Answer 26

It cannot be unconstitutionally vague

Question 27

What is true of derivative of physical evidence?

Answer 27

Physical evidence obtained as a result of a non-Mirandized confession is admissible, so long as that confession was not coerced

Question 28

What is true about conspiracy under the MPC?

Answer 28

An overt act is required
A member of the conspiracy is not criminally liable for crimes unless that member aids and abets in the commission of the crime
Withdrawal is possible only if defendant acts voluntarily to “thwart the success” of the conspiracy

Question 29

Can an honest mistake of law be a valid defense when the mistake negates the required intent as listed in the statute?

Answer 29

Yes.

Question 30

Can burglary be the breaking and entering into a bedroom after being invited to a house?

Answer 30

Yes.

Question 31

What is larceny by trick?

Answer 31

Taking possession of, but not title to, property owned by another through fraud or deceit with the intent to unlawfully convert

Question 32

What negates “trespassory” as a requirement in larceny?

Answer 32

Having the consent of the owner to be in possession of the item. If the defendant takes the property then, it is embezzlement

Question 33

What does immunity protect against?

Answer 33

Future criminal prosecutions, not civil suits

Question 34

When does the privilege against self-incrimination apply?

Answer 34

Defendant in any proceeding, whether civil or criminal, formal or informal, if the answer provide some reasonable possibility of incriminating the defendant in future criminal proceedings

Question 35

What does self-incrimination protect against?

Answer 35

Disclosure of testimonial evidence. Nontestimonial evidence (blood or urine sample, breathalyzer test, handwriting sample, voice sample, other evidence of physical characteristics) is not protected.

Question 36

When does the 6th amendment right to counsel attach?

Answer 36

When the defendant is convicted of a crime for which a sentence of incarceration is imposed, even if that sentence is suspended

Question 37

What is the dual-sovereignty doctrine?

Answer 37

Protection against double jeopardy does not preclude prosecution of a crime by both federal and state governments. A defendant may be charged and convicted for the same type of crime in a federal court and a state court. A defendant may also be prosecuted by two states for the same conduct

Question 38

What is the continuing trespass rule?

Answer 38

The defendant’s original taking was wrongful (without consent), and an intent to steal is later formed

Question 39

What is true of double jeopardy and civil sanctions?

Answer 39

The constitutional protection against double jeopardy generally does not apply to several sanctions imposed on conduct for which a person has previously been subject to criminal punishment

Question 40

Can information gained from improper 5th and 6th amendment violations be admissible for impeachment?

Answer 40

Yes.

Question 41

Can a police informant listen and report on statements in a cell without violating the 6th amendment right to counsel?

Answer 41

Yes.

Question 42

Is duress a defense to intentional?

Answer 42

No. Duress is never a defense to intentional murder (deliberate and premeditated).

Question 43

What is the standard for student searches?

Answer 43

It must be reasonable, meaning the personnel must have a “moderate chance” of finding the expected evidence, and the measures adopted for the search must be reasonably related to the objectives of the search and not excessively instructive in light of the age and sex of the student and the nature of the infraction

Question 44

What is true of robbery and merger?

Answer 44

Larceny, assault, and battery all merge into robbery or attempted robbery

Question 45

What is true of burglary and merger?

Answer 45

If the underlying felony is completed, it does NOT merge with the burglary.

Question 46

How does an accomplice withdraw from a crime?

Answer 46

Accomplice must repudiate prior aid or do all that he can to negate the prior assistance before the crime is put into motion

Question 47

What is required for checkpoint stops?

Answer 47

Reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles. Sobriety checks are valid; drug checks are not.

Question 48

When is a checkpoint valid as a method of finding witnesses?

Answer 48

1) The checkpoint stop’s primary law enforcement purpose is to elicit evidence to help them apprehend not the vehicle’s occupants but other individuals
2) The stop advanced a public concern to a significant degree
3) The police appropriately tailored their checkpoint stops to fit important criminal investigatory needs and to minimally interfere with liberties protected by the 4th amendment

Question 49

What is true regarding a cheek swab?

Answer 49

It constitutes a search, unlike a handwriting or voice sample. However, it is not testimonial and not protected under the 5th amendment. A cheek swab is a routine booking procedure during arrest.

Question 50

What are the consequences of an unlawful arrest?

Answer 50

And unlawful arrest alone has no bearing on a subsequent criminal prosecution, and it is not a defense to the crime charged. If the police have probable cause to detain a suspect, they may do so even if they illegally arrested him. And unlawful arrest has legal significance, however, when there is a seizure of evidence.

Question 51

May a police officer arrest a person in another person’s home without a valid search warrant?

Answer 51

No, absent exigent circumstances or valid consent

Question 52

In a criminal trial, what is required regarding jury trials?

Answer 52

At least six members. If there are six members, a unanimous verdict is required.

Question 53

What is required for a guilty plea to be knowing and voluntary?

Answer 53

The record must reflect that the judge has determined that the defendant knows and understands:

• The nature of the charges and their essential elements
• The consequences of the plea
• The rights that the defendant is waiving

Question 54

What is the fruit of the poisonous tree?

Answer 54

The exclusionary rule applies not only to evidence initially seized as a result of the primary government illegality, but also to secondary “derivative evidence” discovered as a result of the primary taint

Question 55

What are exceptions to the fruit of the poisonous tree doctrine?

Answer 55

1. Inevitable discovery rule
   The evidence would have been inevitably discovered through lawful means
2. Independent source doctrine
   The evidence was discovered in part by an independent source unrelated to the tainted evidence
3. Attenuation principle
   The chain of causation between the primary taint and the evidence has been so attenuated as to purge the taint (passage of time or intervening events)
4. Good-faith exception
   Police officers acted in good faith on either a facially valid warrant later determined to be invalid or an existing law declared unconstitutional

Question 56

What is the doctrine of fruits of a tainted confession?

Answer 56

Derivative physical evidence obtained as a result of a non-Mirandized confession is admissible, so long as that confession was not coerced