Criminal Flashcards
Arrest
Probable cause to arrest is present when at the time of the arrest the officer knows of reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe a crime was being committed.
Search incident to arrest
During a search incident to a lawful arrest, the police may contemporaneously search a person and areas within the wingspan.
6A right to counsel
A suspect has a sixth amendment right to be represented by counsel at all critical stages of a criminal prosecution after formal proceedings have begun. Counsel should be provided after charges have been brought, generally starting at arraignment.
A suspect has a right to have an attorney present at a post-charge lineup or showup. The suspect does not have a right to have an attorney present as a post-charge photo identification.
Due process under 14A
The due process clause of the fourteen amendment prohibits an identification process that is unnecessarily suggestive and where there is a substantial likelihood of misidentification.
5A and Miranda
The fifth amendment guarantees freedom against compelled self-incrimination. Under the fifth amendment, applicable to the states under the fourteenth amendment, a suspect must receive Miranda warnings prior to custodial interrogation by the police. A suspect is in custody when he is placed in a situation where a reasonable person would not feel free to terminate the encounter and where the environment is coercive. Police conduct an interrogation where their conduct is likely to illicit an incriminating response from the suspect.
If the suspect invokes his right to remain silent, the police may reinitiate questioning if they scrupulously honor the suspect’s invocation of the right to remain silent. If the suspect requests an attorney via an unambiguous request, questioning must stop and cannot be reinitiated.
In-court identification
A witness may make an in-court identification despite the existence of an illegal lineup if the in-court identification has an independent source.
Insanity
M’Naghten: Defendant lacked the ability to know of the wrongfulness of the actions or understand the nature and quality of his actions.
Irresistible Impulse: Unable to control his impulse.
Durham Test: But-for the mental defect, crime would not have been committed.
ALI / MPC: Defendant suffered from a mental defect and as a result lacked substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirement of law.
4A
For a defendant to assert a 4A challenge, she must demonstrate a reasonable expectation of privacy. To establish a reasonable expectation of privacy, the defendant must show she had at least an ownership or possessory interest in the place searched or items seized.
Co-Conspirator Liability
A conspirator may be held liable for crimes committed by other conspirators if the crimes were committed in furtherance of the objectives of the conspiracy and were foreseeable.
Accomplice liability
Liable if the accomplice acts with the intent to aid, counsel, or encourage the principal before or during the commission of the crime. An accomplice is responsible for the crimes he committed or counseled and for any other crimes committed in the course of committing the crime contemplated as long as the other crimes were probable and foreseeable.
Co-Defendants
The sixth amendment grants the defendant in a criminal proceeding the right to confront adverse witnesses. When two defendants are tried together and one has given a confession that implicates the other, the right to confrontation prohibits use of the statement unless: the portions referring to the defendant can be redacted, the confessing defendant takes the stand, or the co-defendant’s confession is being used to rebut the defendant’s claim that the confession was product of coercion.
Guilty Plea
Prior to accepting a guilty plea, the judge must determine that the plea is voluntary and intelligent. This is done by addressing the defendant personally in court, on the record. The judge must ensure that the defendant knows and understands the nature of the charge to which the plea is offered and the crucial elements of the crime charges, the maximum and minimum sentences, that a guilty plea waives a right to a jury trial, and that the defendant has a right not to plead guilty.
Attempt
An attempt consists of two elements: (i) the specific intent to commit the target offense and (ii) an overt act in furtherance of that intent. A defendant must have committed an act beyond mere preparation for the offense. The traditional rule follows the proximity test and requires an act that is dangerously close to success. A majority of states now follow the MPC and require a substantial step towards the commission of the crime.
Plain View
The police may make a warrantless search when they (i) are legitimately on the premises, (ii) discover evidence in plain view, and (iii) have probable cause to believe the item is evidence of a crime.
Embezzlement
Embezzlement is the fraudulent conversion of the property of another by a person in lawful possession.
