Criminal Law Flashcards
What is felony murder? How does merger relate?
Felony murder is an unintended killing proximately caused by and that occurs during the commission or attempted commission of an inherently dangerous felony (e.g., robbery). The underlying felony, as the lesser included offense, typically merges into the felony-murder charge.
Can you be convicted of robbery and assault for the same crime?
Nope. Robbery is larceny from the victim’s person or presence by force (battery) or intimidation (assault). Since larceny and battery/assault are lesser included offenses to robbery, they merge into the completed robbery. Therefore, the defendant may only be convicted of robbery—not its constituent offenses.
Is it still burglary if you break into a house to steal something but can’t find it and end up stealing nothing>
Yes. Common law burglary is complete when the defendant unlawfully breaks and enters a dwelling at night with the intent to commit a felony therein. Commission of the underlying felony is unnecessary. However, a burglary defendant who fails to complete the underlying felony is also guilty of the attempted commission of that felony.
When is a person who finds lost property guilty of larceny?
A person who finds lost or misplaced property is guilty of larceny if, at the time of the finding, the person (1) knows or believes he/she can locate the owner and (2) takes and carries away the property with the intent to steal it.
In common law, if you ask an undercover cop to kill your husband, are you guilty of solicitation or conspiracy or both?
Just solicitation.
Common law conspiracy requires proof of at least two guilty minds, so a defendant cannot be convicted of conspiracy if the other alleged conspirator(s) feigned agreement. Additionally, solicitation is complete upon the encouragement of the crime—it does not matter if the other person agrees to or can commit the solicited crime.
Under the MPC, if you plan a crime with an undercover cop, are you guilty of conspiracy?
Yes.
Under the MPC, conspiracy requires that (1) the defendant enter into an agreement to commit a crime, (2) the defendant specifically intend that the crime be committed, and (3) at least one conspirator commit an overt act. Since the MPC follows the unilateral approach, only one party need actually agree to the conspiracy.
If you go into a bank to rob it, and pass a handwritten threat, but the teller doesn’t see it and you change your mind and run out, are you guilty of attempted robbery?
Yes.
A defendant is guilty of attempt if he/she (1) had the specific intent to commit a crime and (2) took a substantial step toward the commission of that crime. The crime of attempt is complete once the defendant takes the substantial step, so there can be no abandonment or withdrawal after that step is taken.
If you try to poison someone but accidentally use something harmless, are you guilty of attempted murder?
Yes.
Attempt occurs when a person (1) takes a substantial step toward the commission of a crime (2) with the specific intent to commit the crime. Factual impossibility is never a defense to attempt. This is NOT MISTAKE OF FACT.
Can police go into a third party’s home if police know someone they have an arrest warrant for is inside?
Nope.
An arrest warrant implicitly authorizes entry into the arrestee’s home—not a third party’s home—to serve the warrant. Police may only search for an arrestee in a third party’s home if they have a warrant for the search, exigent circumstances, or consent to enter.
What’s the automobile exception to the warrant requirement?
The automobile exception to the warrant requirement allows police to conduct a warrantless search of a vehicle if they have probable cause to believe it contains evidence of a crime. Officers can search any area within the vehicle where the evidence might be located, including the trunk and locked containers.
Exceptions to warrant requirement
Exceptions to warrant requirement
Search incident to arrest Administrative search Stop and frisk Plain view Automobile exception Consent Exigent circumstance Special government purpose
Mnemonic: SAD SPACES
What can be used against a non-Mirandized suspect’s incriminating statement during a custodial interrogation?
A suspect’s incriminating statement during a custodial interrogation without Miranda warnings cannot be used against the suspect at a subsequent trial. However, physical evidence obtained as a result of the non-Mirandized statement is admissible so long as that statement was not coerced.
What does Aprendi mean for a jury recommending a capital punishment?
Due process requires that any fact (e.g., aggravating circumstances) that exposes a criminal defendant to a greater punishment than authorized by the jury’s guilty verdict is an element that must be submitted to and decided by the jury.
The due process clause guarantees a criminal defendant’s right to have an impartial jury determine whether the defendant is guilty of every element of a crime beyond a reasonable doubt. Accordingly, the U.S. Supreme Court held in Apprendi v. New Jersey that any fact that exposes a criminal defendant to a greater punishment than authorized by the jury’s guilty verdict is an element that must be submitted to and found by the jury.
This holding has been applied to state capital-murder sentencing schemes that require a finding of at least one aggravating circumstance at either the guilt or penalty phase before the death penalty can be imposed. Therefore, a capital-sentencing scheme (as seen here) violates Apprendi if it:
allows a jury to render an advisory sentence recommending the death penalty without specifically finding an aggravating circumstance and permits the judge to then make that finding independently
Does an anonymous tip give you probable cause?
NO, and it is not sufficient for a valid warrant.
Can police use a drug-sniffing dog on the porch of a suspect’s house?
NO. It’s curtilage and you can’t search that without a warrant. Police have an implied license to briefly enter a person’s curtilage in the same manner as a private individual. But if police intrude in an unusual manner for an uncommon purpose (e.g., to conduct a canine search), a warrant is generally required.
Does a witness in a grand jury have a constitutional right to have her attorney present?
NO. A grand jury witness may consult with an attorney outside the grand jury room, but there is no constitutional right to have counsel present inside the grand jury room. Additionally, there is no constitutional right to present witnesses at a grand jury proceeding.
If you confess before Mirandaized, and then after Miranda warnings confess again, does the first violation mean your 2nd confession doesn’t count?
NO. A Miranda violation does not automatically require the suppression of the defendant’s later confession made after the receipt of Miranda warnings. Instead, admissibility turns on whether the later confession was voluntary based on the totality of the circumstances.
Does an undercover cop in a jail cell with a perp need to do miranda rights before perp’s confession is admissible?
NO. Miranda warnings are not required when a suspect who is subjected to a custodial interrogation is not aware that the interrogator is a police officer—i.e., when the officer is undercover.
When can the police search a car without a warrant if the person is already arrested?
Police may conduct a warrantless search incident to arrest when a person has been lawfully arrested and the search is limited to the person’s body and areas within the person’s immediate reach. The vehicle may also be searched it is reasonable to believe that evidence of the crime may be found therein.
At common law, can a conspirator be convicted of conspiracy if all other coconspirators are acquitted at the same trial?
No. But can be if they had different trials.
When can an initial aggressor claim self-defense?
An initial aggressor can claim self-defense only if (1) the aggressor’s use of nondeadly force was met with deadly force or (2) the aggressor, in good faith, completely withdrew from the altercation and communicated that fact to the victim.
If you enter a store during business hours to steal 2 mugs, and hide them under your shirt and leave, and don’t realize every customer got 2 mugs for free that day, what’s the most serious crime you’ve committed?
Attempted larceny.
Burglary requires proof that a person unlawfully entered a building, so a person cannot burglarize a building by entering an area that is open to the public at the time. And larceny requires a trespassory taking, so a person cannot commit larceny by taking property freely given by another—even if the person was unaware of this fact. However, this factually impossibility would not absolve the person of attempted larceny.
Is factual impossibility a defense to attempt?
NO.
A defendant is guilty of an attempted crime if he/she (1) had the specific intent to commit a crime, (2) performed an act in furtherance of that crime, but (3) did not complete it. Factual impossibility is no defense to attempt.
In VA law, felony murder constitutes
first-degree murder.
In a first degree murder involving juvenile aged 16 or 17, who decides what court it goes to?
In a first-degree murder case involving a juvenile who was 16 years of age or older at the time of the offense, if the Juvenile and Domestic Relations Court finds probable cause, the case must be certified to the Circuit Court for trial.
A motion to set aside the verdict must be made no later than _____________________ days after the final order of conviction.
21.
VA: define felony murder
Felony murder is murder of the first degree and is defined as a murder committed in the commission or attempted commission of arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, burglary, or abduction (kidnapping) except as otherwise provided in the aggravated murder statute. Felony murder may be intentional or accidental, as long as the death results from acts in furtherance of one of the enumerated felonies.
VA: define robbery
Robbery is a common-law crime in Virginia. The elements of the crime as defined at common law are: (i) the taking, (ii) with intent to steal, (iii) of the personal property of another, (iv) from his person or in his presence, (v) against his will, (vi) by violence or intimidation.
Explain a principal in the 1st degree and a principal in the 2nd degree.
A principal in the first degree is the person whose acts or omissions are the actus reus of the crime. Typically, a principal in the first degree is present at the scene of the crime. A principal in the second degree is a person who is present at the commission of the crime and shares the principal in the first degree’s intent that the crime be committed or aids, abets, encourages, assists, or advises a principal in the first degree in the commission of the crime. In felony cases, every principal in the second degree may be indicted, tried, convicted, and punished in the same manner as a principal in the first degree.
Can an accidental killing during a robbery constitute felony murder? For the principal in the second degree?
Yes and yes.
Even an accidental killing that results from the commission of a robbery can form the basis of felony murder.c
VA: define conspiracy
A person is guilty of conspiracy if he confederates or agrees with another to commit a felony. Virginia does not require an overt act to be performed to complete a conspiracy; an agreement to commit a felony is sufficient.
Although a defendant who has been tried and convicted of a substantive offense cannot be tried for conspiracy to commit that same offense at a later trial, a defendant who has been tried and convicted of an offense he conspired to commit can be convicted of both the substantive offense and the underlying conspiracy in the same trial.
VA: Can a lawyer lie to the court?
No. a lawyer shall not make a false statement of fact or law to a tribunal (Rule 3.3).
VA: Can a lawyer thwart the opposing party’s legally proper discovery request?
No. A lawyer shall not make a frivolous discovery request or fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party (Rule 3.4).
VA: When can a plaintiff file for a nonsuit?
A plaintiff has the right to take a first nonsuit at any time before (i) a motion to strike the evidence has been sustained, (ii) the jury retires from the bar to decide the case, or (iii) the action has been submitted to the court for decision.
VA: May the court impose sanctions for a lawyer’s failure to comply with a discovery order?
Under the Virginia Supreme Court rules (Rule 4:12), the court may impose sanctions for a party’s the failure to comply with a discovery order. When the party has failed to attend his own deposition, serve answers to interrogatories, or respond to a request for production or inspection, the court may impose certain sanctions, including striking the pleadings but not contempt, without the prior entry of an order to compel these discovery actions.
