Criminal Law Flashcards
Accomplice liability (other crimes)
“natural and probable consequences of the accomplice’s conduct.”
Mistake of Fact (reasonableness)
SI - unreasonable ok
Malice/GI - must be reasonable
Accomplice liability withdrawal
MBE: “(i) repudiate prior aid, (ii) do all that is possible to countermand prior assistance, and (iii) do so before the chain of events is in motion and unstoppable.”
NY: “i) renounce his criminal purpose completely and voluntarily, (ii) withdraw from participation prior to commission of the crime, and (iii) make a substantial effort to prevent the commission”
NY accomplice liability evidence requirement
“i) renounce his criminal purpose completely and voluntarily, (ii) withdraw from participation prior to commission of the crime, and (iii) make a substantial effort to prevent the commission”
Excerpt From: Themis Bar Review, LLC. “Criminal Law Distinctions.” Themis Bar Review, LLC, 2013-03-06T07:00:00+00:00. iBooks.
This material may be protected by copyright.
Forgery
“i) Fraudulent;
ii) Making;
iii) Of a false writing;
iv) With apparent legal significance; and
v) With the intent to defraud”
Excerpt From: Themis Bar Review, LLC. “Criminal Law Distinctions.” Themis Bar Review, LLC, 2013-03-06T07:00:00+00:00. iBooks.
This material may be protected by copyright.
Embezzlement
i) Fraudulent;
ii) Conversion;
iii) Of the property;
iv) Of another;
v) By a person who is in lawful possession of
Excerpt From: Themis Bar Review, LLC. “Criminal Law Distinctions.” Themis Bar Review, LLC, 2013-03-06T07:00:00+00:00. iBooks.
This material may be protected by copyright.
False Pretenses
“i) Obtaining title to the property;
ii) Of another person;
iii) Through the reliance of that person;
iv) On a known false representation of a material past or present fact; and
v) The representation is made with the intent to defraud”
Excerpt From: Themis Bar Review, LLC. “Criminal Law Distinctions.” Themis Bar Review, LLC, 2013-03-06T07:00:00+00:00. iBooks.
This material may be protected by copyright.
Robbery merger
Larceny, assault, and battery all merge into robbery.
Excerpt From: Themis Bar Review, LLC. “Criminal Law Distinctions.” Themis Bar Review, LLC, 2013-03-06T07:00:00+00:00. iBooks.
This material may be protected by copyright.
Common law arson
“i) Malicious;
ii) Burning;
iii) Of the dwelling;
iv) Of another.”
Excerpt From: Themis Bar Review, LLC. “Criminal Law Distinctions.” Themis Bar Review, LLC, 2013-03-06T07:00:00+00:00. iBooks.
This material may be protected by copyright.
Solicitation
i) Enticing, encouraging, or advising of another person;
ii) To commit a crime;
iii) With the intent that the other person commits the crime.”
Excerpt From: Themis Bar Review, LLC. “Criminal Law Distinctions.” Themis Bar Review, LLC, 2013-03-06T07:00:00+00:00. iBooks.
This material may be protected by copyright.
Co-conspirator crimes - NY
“not vicariously liable for crimes committed by co-conspirators when he merely conspired and did not participate in committing the offense. People”
Excerpt From: Themis Bar Review, LLC. “Criminal Law Distinctions.” Themis Bar Review, LLC, 2013-03-06T07:00:00+00:00. iBooks.
This material may be protected by copyright.
Pinkerton Rule
Liable for “both the offense of conspiracy and all substantive crimes committed by any other co-conspirators acting in furtherance of the conspiracy”
Excerpt From: Themis Bar Review, LLC. “Criminal Law Distinctions.” Themis Bar Review, LLC, 2013-03-06T07:00:00+00:00. iBooks.
This material may be protected by copyright.
Majority view conspiracy withdrawal
“after there has been an agreement but before an overt act has been committed, a person may avoid criminal liability for conspiracy by communicating notice of his intent not to participate to the other potential co-conspirators or by informing the police about the agreement”
Excerpt From: Themis Bar Review, LLC. “Criminal Law Distinctions.” Themis Bar Review, LLC, 2013-03-06T07:00:00+00:00. iBooks.
This material may be protected by copyright.
The “Incident to Lawful Arrest Search” (Car)
Passenger compartment/containers may be searched if the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search
or
it is reasonable to believe the
vehicle contains evidence of the offense of arrest
The “Probable Cause Search” (car)
justifies the search of the entire
vehicle (including the trunk) and its contents that
may conceal the object of the search
“Inventory Search” (car)
Police may search entire impounded car plus
closed containers.
The “Border Search” (car)
Complete warrantless search without probable
cause permissible.
The “Sobriety Stop” (car)
- conducted in a neutral or non-arbitrary
manner, - intrusion on motorists is limited, and
- further an important governmental or public
purpose (drunk driving)
*no requirement that an officer have a reasonable suspicion
Valid use of Statements in violation of Miranda
Impeachment only
Accomplice liability for unplanned crimes
Natural and probable consequences
Statements in violation of 6th A
However, even where a voluntary confession is obtained in violation of a defendant’s Sixth Amendment right to counsel, such confession may be used at trial to impeach the defendant’s testimony
NY right to counsel
New York protects the indelible right to counsel whenever there is significant judicial activity in the case
“i) When the accused is in custody where the police conduct is likely “overwhelming to a lay person” and counsel is requested;
ii) At investigatory lineups, only when the police know (or could have known from the defendant’s file) that the defendant is represented by an attorney on another charge and the defendant requests his attorney be present;
iii) At the commencement of formal judicial proceedings, whether or not the defendant has retained or requested a lawyer”
5th A right to silence invoked
- Stop questioning
2. Fresh Miranda if wants to waive
If Miranda is violated
- Can use statements to impeach
- Does not require suppression of physical fruits
- Does not require suppression of subsequent post-miranda statements
6th A remedies
- IF denied counsel at a non-trial proceeding (pre-indictment line-up) = harmless error
- Statement/physical evidence is inadmissible
NY ineffective assistance of counsel
- Did not receive meaningful rep
- Egregious prejudicial error
- But-for deficiency, result would’ve been different
NY Grand Jury Evidence
Must be legally sufficient –> admissible at trial
NY Prosecution must disclose
- all statement of prosecution W related to the W’s trial testimony
- D and Co-D statements
- All trangibles that prosecution will use at trial
*D must show failure to disclose materially contributed/altered the outcome of proceeding
NY Jury # requirements
Felony - 12
Non-felony - 6
NY Speedy trial limits
Felony - 6 mos
Class A - 90 days
Class B - 60 days
Violation - 30 days
NY Affirmative Defense standard
preponderance of the evidence
NY Double jeopardy
Crimes arising out of same T&O must be tried together unless:
- each offense has different elements
- one concerns possession and the other use
- each offense involves death/injury to different victims
MBE Jeopardy
Blockburger bars successive prosecution for greater/lessor offensives unless:
- prosecution for greater offense can follow prosecution for lessor offense if despite due diligence the evidence wasn’t ready before trial
- a guilty plea in lessor offense doesn’t preclude prosecution for greater offense
Retrial after insufficiency of the evidence
NOT OK
Grand jury
grand juries consist of between 16 and 23 people, and the agreement of 12 or more is necessary to return an indictment.
Prosecutor’s duty to disclose evidence intended to be used at trial
evidence relating to a defendant’s statements, or observations of the defendant, if the prosecution intends to use such evidence at trial. This notice must be given within 15 days of the arraignment and before trial.
Adverse inference from pleading the 5th
it is proper for the jury to draw an adverse inference in a civil case from a party’s assertion of the privilege against self-incrimination
Accomplice NY
- soliciting, requesting, commanding, urging, or intentionally aiding
- in the commission of a crime,
- while acting with the mental culpability required for the commission thereof.
NY Ineffective Counsel
(i) the defendant did not receive meaningful representation,
(ii) the attorney’s conduct constituted egregious and prejudicial error resulting in the absence of a fair trial to the defendant, and
(iii) but for the deficiency the result would have been different.
