Criminal Flashcards
What is required for embezzlement?
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
What is voluntary intoxication a defense to?
Specific-intent crimes (FIAT) only if if prevented the defendant from forming the mens rea
What is seizure?
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
When are warrantless arrests appropriate?
- 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.
When are roadblocks allowed?
If the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles
When are searches of automobiles allowed?
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
When is manifest necessity for mistrial required?
When the defendant did not request (or objected to) a mistrial
What is true of attempt?
It is a specific-intent crime, even when the completed offense is only a general-intent or malice crime
What is true under the agency theory of felony murder?
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
What is true of attempt?
It is a specific-intent crime, even when the completed offense is only a general-intent or malice crime
What is true under the agency theory of felony murder?
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
When can a defendant attack a facially valid warrant?
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
When can police enter evidence obtained through an informant after the defendant invoked his 6th Amendment right to counsel?
When the incriminating statements are used for impeachment purposes
When does the exclusionary rule not apply?
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
What must the defendant show to prove a Brady violation?
- 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
When can double jeopardy bar a retrial after the defendant is convicted and appeals, and gets the conviction reversed?
If the reversal was based on insufficiency of the evidence
How do you withdraw as an accomplice?
- Repudiate prior aid
- Do all that is possible to countermand prior assistance
- Do so before the chain of events is in motion and unstoppable
What happens during imperfect of self-defense?
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
What is the difference between accessory before the fact and principal in the second degree?
Presence
An accomplice who is physically or constructively present during the commission is a principal in the second degree.
What is true of factual impossibility?
It is not a defense if the crime attempted is factually impossible to commit due to circumstances unknown to the defendant
When is inadvertent disclosure not a waiver of privilege?
If a holder took reasonable steps to prevent disclosure and reasonable steps to rectify disclosure
When is disclosure in a state proceeding not a waiver in a later federal proceeding?
If the disclosure would’ve not been a waiver in federal court or was not a disclosure under state law
When may the death penalty be imposed on an accomplice during felony murder?
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
What is true of double jeopardy and collateral estoppel?
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
When does the right to a jury trial attach?
For all serious offense, which have an authorized punishment of more than 6 months.
What is a requirement for aggravating circumstances for the death penalty?
It cannot be unconstitutionally vague
What is true of derivative of physical evidence?
Physical evidence obtained as a result of a non-Mirandized confession is admissible, so long as that confession was not coerced
What is true about conspiracy under the MPC?
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
Can an honest mistake of law be a valid defense when the mistake negates the required intent as listed in the statute?
Yes.
Can burglary be the breaking and entering into a bedroom after being invited to a house?
Yes.
What is larceny by trick?
Taking possession of, but not title to, property owned by another through fraud or deceit with the intent to unlawfully convert
What negates “trespassory” as a requirement in larceny?
Having the consent of the owner to be in possession of the item. If the defendant takes the property then, it is embezzlement
What does immunity protect against?
Future criminal prosecutions, not civil suits
When does the privilege against self-incrimination apply?
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
What does self-incrimination protect against?
Disclosure of testimonial evidence. Nontestimonial evidence (blood or urine sample, breathalyzer test, handwriting sample, voice sample, other evidence of physical characteristics) is not protected.
When does the 6th amendment right to counsel attach?
When the defendant is convicted of a crime for which a sentence of incarceration is imposed, even if that sentence is suspended
What is the dual-sovereignty doctrine?
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
What is the continuing trespass rule?
The defendant’s original taking was wrongful (without consent), and an intent to steal is later formed
What is true of double jeopardy and civil sanctions?
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
Can information gained from improper 5th and 6th amendment violations be admissible for impeachment?
Yes.
Can a police informant listen and report on statements in a cell without violating the 6th amendment right to counsel?
Yes.
Is duress a defense to intentional?
No. Duress is never a defense to intentional murder (deliberate and premeditated).
What is the standard for student searches?
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
What is true of robbery and merger?
Larceny, assault, and battery all merge into robbery or attempted robbery
What is true of burglary and merger?
If the underlying felony is completed, it does NOT merge with the burglary.
How does an accomplice withdraw from a crime?
Accomplice must repudiate prior aid or do all that he can to negate the prior assistance before the crime is put into motion
What is required for checkpoint stops?
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.
When is a checkpoint valid as a method of finding witnesses?
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
What is true regarding a cheek swab?
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.
What are the consequences of an unlawful arrest?
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.
May a police officer arrest a person in another person’s home without a valid search warrant?
No, absent exigent circumstances or valid consent
In a criminal trial, what is required regarding jury trials?
At least six members. If there are six members, a unanimous verdict is required.
What is required for a guilty plea to be knowing and voluntary?
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
What is the fruit of the poisonous tree?
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
What are exceptions to the fruit of the poisonous tree doctrine?
- Inevitable discovery rule
The evidence would have been inevitably discovered through lawful means - Independent source doctrine
The evidence was discovered in part by an independent source unrelated to the tainted evidence - 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) - 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
What is the doctrine of fruits of a tainted confession?
Derivative physical evidence obtained as a result of a non-Mirandized confession is admissible, so long as that confession was not coerced
