Criminal Law Flashcards
1
Q
What are the elements of conspiracy?
A
(i) an agreement between two or more persons;
(ii) an intent to enter into an agreement; and
(iii) an intent to achieve the object of the agreement.
Conspiracy is formed as soon as there is an agreement + substantial step.
2
Q
What is the 2 guilty minds rule re conspiracy?
A
Conspiracy requires 2 guilty minds. If one person is only feigning interest, the other party may NOT be convicted of conspiracy.
Conspiracy = agreement + substantial step.
3
Q
Does it matter if the principal crime was successful in regards to conspiracy?
A
No! The conspiracy is already formed before the principal crime is committed.
4
Q
What is the general rule for ‘retreating’?
A
General rule: there is no duty for non-aggressor to retreat before using deadly force (in self defense).
BUT some states uphold the retreat doctrine (see other card).
5
Q
What is the retreat doctrine?
A
Minority view (some states): retreat (by non-aggressor) is required before using deadly force IF the victim can safely do so (e.g. by walking away), unless:
- the attack occurs in the victim’s own home
- the attack occurs while the victim is making a lawful arrest; or
- the assailant is in the process of robbing the victim.
SO no retreat is necessary if it cannot be made in complete safety.
AND there is no obligation to retreat unless the defender intends to use deadly force.
6
Q
What do Miranda rights require that a person in custody be informed of?
A
- He has the right to remain silent
- Anything he says can be used against his in a court of law
- He has a right to an attorney
- If he cannot afford an attorney, one will be appointed for him if he so desires.
7
Q
When is a confession considered involuntary?
A
When there is official coercion or compulsion
8
Q
Is a validly obtained confession (i.e. Miranda rights read) by police, rendered invalid when it is determined that the confessor is mentally unwell?
A
No! A statement is NOT considered involuntary when it is it the result of mental disease and there was no coercive police conduct in obtaining the statement.
In order to find that a confession is inadmissible based on involuntariness, there must have been some sort of coercion by the police to induce the statement.
9
Q
When is a Miranda warning required?
A
Anyone in CUSTODY of govt and accused of a crime must be given Miranda warnings PRIOR to INTERROGATION by police.
Govt conduct = D knows he is being interrogated by a govt agent
Custody = is the person’s freedom of action denied in a significant way based on objective circumstances, (arrest = custody, routine traffic stop = not custody)
Interrogation = any words/conduct by police that they should know would likely elicit a response from the D, i.e. not required before a spontaneous statement by a D
10
Q
Are Miranda warnings required for Terry stops?
A
No, Miranda warnings are not required for Terry stops (i.e. stop and frisk)
11
Q
What is required for the right to stop? (Stop and frisk/Terry)
A
Police must have reasonable suspicion supported by articulable facts (not just a hunch) of criminal activity or involvement in a completed crime.
NOTE: if police also have reasonable suspicion to believe that the detainee is armed and dangerous, they may also conduct a frisk to ensure that the detainee has no weapons.
12
Q
What are the requirements for a detention to be valid for a stop and frisk?
A
Police must act in a diligent and reasonable manner in confirming or dispelling their suspicions - detention must not be longer than necessary to do so.
13
Q
When does double jeopardy attach at a jury trial?
A
At the empaneling and swearing in of the jury
14
Q
When does double jeopardy attach at a bench trial?
A
When the first witness is sworn in.
15
Q
What is felony murder? What are the required felonies?
A
Felony murder is any death caused during the commission/attempt to commit of one of the following felonies: burglary, arson, rape, robbery, kidnapping (BARRK)
16
Q
If a D has been acquitted for rape but then the victim dies, can he be convicted of felony murder?
A
No - double jeopardy. The D has been acquitted of rape so you cannot use that charge again as the underlying crime in a felony murder charge as that puts him in jeopardy again.
IF a different theory of murder was used, the D may have been charged under that alternative theory. BUT you cannot charge a D with felony murder, using an acquitted charge as its basis - it violates DJ.
17
Q
When might a a felony murder charge not be able to be brought under DJ?
A
If the felony murder charge arises from the same conduct or criminal transaction for which the defendant has already been acquitted or convicted, double jeopardy would likely preclude the additional charge. In other words, if the felony murder charge is based on the same facts as the original offense, it may be considered the same offense for double jeopardy purposes.
18
Q
When do 2 crimes not constitute the same offense, for the purposes of DJ?
A
IF each crime requires proof of an additional element that the other crime does not require - even though some of the facts may be necessary to prove both crimes.
19
Q
Does the attachment of jeopardy for a greater offense bar retrial for a lesser included offense? What about the other way around? What are the exceptions?
A
Yes! e.g. crime of robbery includes the two lesser crimes of larceny and assault. If a defendant is tried for robbery, they cannot be retried for the lesser included offense of larceny.
This also works VICE VERSA (attachment of jeopardy for a lesser included offense bars retrial for the greater offense)- i.e, if the D is first put in jeopardy for the lesser included offense (larceny), they cannot later be tried for the greater offense (robbery).
BUT there is an exception IF unlawful conduct that is subsequently used to prove the greater offense (1) has not occurred at the time of prosecution for the lesser offense or (2) has not been discovered despite DD.
AND a retrial for murder is permitted if the victim dies after attachment of jeopardy for battery.
20
Q
What does ‘lesser included offense’ mean?
A
When a crime is classified as a lesser included offense, it means that commission of the greater offense necessarily involves commission of the lesser offense.
21
Q
What is the doctrine of transferred intent?
A
The D can be liable under the doctrine of transferred intent when they intend the harm that is actually caused, but to a different victim or object. In such cases, the law transfers the original intent from the intended target to the actual victim.
The doctrine of transferred intent applies to homicide, battery, and arson. It does not apply to attempt.
A person found guilty of a crime on the basis of transferred intent is usually guilty of two crimes: the completed crime against the actual victim and attempt against the intended victim.
22
Q
If a D is guilty of murder and attempted murder (from one act), do the charges need to be tried together?
A
NO! Each is an independent and separate offense.
Attempt does NOT merge (conspiracy and solicitation do)
23
Q
Is motive behind a killing relevant to a murder charge?
A
Motive is NOT the same things as intent and will not excuse murder - it does not negate someone’s premeditation, deliberation and malice aforethought.
(Murder = unlawful killing with malice aforethought
Malice aforethought = killing with state of mind of:
i. intent to kill;
ii. intent to inflict great bodily injury;
iii. reckless indifference to an unjustifiably high risk to human life; or
iv. intent to commit a felony.)
24
Q
What are the 2 core requirements for a facially valid search warrant? (the 2Ps)
A
- It be based on probable cause
- Particularity - it describes the place to be searched and the items to be seized.
25
What is the scope of the search in a stop and frisk?
Generally limited to a pat-down of the outer clothing for concealed instruments of assault.
BUT an officer may reach directly into an area of suspect's clothing, without a preliminary frisk, if they have specific information that a weapon is being hid there - even if info comes from an informant's tip lacking sufficient reliability to support a warrant.
26
When is FORCED entry into a home permissible?
It is permissible with (i) a valid SEARCH warrant; and (ii) when the person is believed to be inside and no response occurs.
It is not permissible with a valid ARREST warrant unless there is probable cause to believe the person named is on the premises.
27
In accomplice liability, who is the principal?
The principal is the person who commits the illegal act or who causes an innocent agent to do so.
28
What is an innocent agent?
When a person uses someone else to commit a crime on their behalf and the person being used is unaware of the criminal nature of their acts, the person being used is an innocent instrumentality/innocent agent.
29
What is required to be shown for robbery?
1. A taking
2. of personal property of another
3. from the other's person
4. by force or threats of immediate death or physical injury to the victim/a family member/some other person in the victim's presence
5. with the intent to permanently deprive him of it
Robbery is different to larceny as it requires the D to use force/threats to get property.
30
Discuss the force/threats element of robbery
The victim must give up the property as a result of force used by the D or by threats made by the D. In the case of threats, the victim must give up the property because she feels threatened (not because she feels sorry for him or wants him to go away).
i.e. a pickpocket is guilty of larceny BUT if the victim notices the attempt and resists, it is robbery
31
What is needed for proof of 'malice'. (i.e. a crime requires malicious intent).
Proof of malice does NOT need to be actual specific intent to kill or ham another. I can be implied from a D's gross recklessness with regards to human life.
SO to show malice, the prosecution only needs to show that the D recklessly disregarded an obvious or high risk that the particular harmful result would occur.
32
What is specific intent?
33
What are specific intent crimes?
Crimes that require not only the doing of the act but the doing of it with a specific intent or objective.
I.e. with specific intent crimes you aim to produce a certain result. BUT if you aim to commit a specific action = general intent.
34
What are the malice crimes?
Common law murder and arson
35
What are the specific intent crimes and their requisite intent?
Solicitation - intent to have the person solicited commit the crime
Attempt - intent to commit the crime
Conspiracy - intent to have the crime completed
First degree premeditated murder - premeditated intent to kill
Assault - intent to commit a battery
Larceny and robbery - intent to permanently deprive another of his interest in the property taken
Burglary - intent at the time of entry to commit a felony in the dwelling of another
Forgery - intent to defraud
False pretenses - intent to defraud
Embezzlement - intent to defraud
36
What does larceny require to be shown?
A trespassory taking and carrying away of the personal property of another with intent to steal it/permanently deprive
Intent = at the time of the taking
37
Can a juvenile be convicted for life without parole?
No, it is a violation of the 8th amendment to impose mandatory life in prison without the possibility of parole on a person who was a minor when the crime was committed.
Minor = under the age of 18 at the time of the crime.
38
What are the requirements for the crime of false pretenses?
1. obtaining title (ownership, not mere possession)
2. to the property of another
3. by a knowing false statement of past or existing fact (intentional false statements, not future)
4. with intent to defraud the other (specific intent, victim must be deceived)
IF only custody of the property is obtained = larceny by trick
IF title is obtained = false pretenses
39
What is required for the crime of forgery?
Making/altering a document with purported legal significance (i.e. a doc that carries legal value - e.g. contract/check) to be false (alteration/creation - made to change legal significance of doc) with the intent to defraud (specific intent).
40
What does the Due Process clause require?
In all criminal cases, the govt must prove guilt beyond a reasonable doubt.
The prosecution must have the burden of proving each element of the crime charged.
However, the state may impose the burden of proof upon the D regarding an affirmative defense (e.g. entrapment).
41
What happens to the burden of proof with an affirmative defense?
The state may generally impose the burden of proof upon the defendant in regard to an affirmative defense, such as insanity/self-defense/duress/entrapment.
42
What may the prosecution do once a D has raised an affirmative defense?
The prosecution, in rebuttal is allowed to introduce evidence to disprove the defense.
43
When may a police officer make an automobile stop?
If a police officer has probable cause that a traffic law has been violated/reasonable suspicion to believe a law has been violated.
EVEN if the officer's ulterior motive is to investigate a crime for which the officer lacks sufficient cause to make a stop.
44
What is the mnemonic for specific intent crimes?
Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts
S = Solicitation
C = Conspiracy
A = Attempt
F = Forgery
A= Assault
L = Larceny
E = Embezzlement
F = False Presences
R = Robbery
B = Burglary
F = First degree murder
45
What intent does an 'attempt' crime require? Does this stand even if the underlying crime doesn't require it?
Attempt crimes require specific intent EVEN if the crime attempted foes not.
E.g. murder is NOT a specific intent crime - you just need a reckless disregard for human life BUT attempted murder requires specific intent to kill, without it, D is not guilty of attempted murder.
46
What is the requirements for establishing the crime of murder?
The unlawful killing of another human being with malice aforethought (express or implied).
47
What crimes require causation and why?
When a crime requires not merely conduct but also a specified result (e.g. death), the D's conduct must be both the cause-in-fact and the proximate cause of the specified result.
Such as: homicide, assault and battery, robbery, arson
(for offenses involving physical harm, causation is often required as the prosecution must demonstrate that the D's actions were the direct cause of the V's injuries).
48
Sufficiency of the Evidence - what does it mean?
Due process is violated if, viewing all the evidence in the light most favorable to the prosecution, no rational judge/jury would have found the D guilty of the crime of which he was convicted.
49
Can a police officer order occupants out of a car as part of an automobile stop?
Yes! When a police officer has lawfully stopped a vehicle, in the interests of office safety, the officer may order the occupants (driver and passengers) out of the car.
50
Roadblocks
51
What is malice aforethought in relation to a murder charge?
1. Intent to kill (express malice)
2. Intent to inflict great bodily injury
3. Reckless indifference to an unjustifiably high risk to human life (depraved heart); or
4. Intent to commit a felony (felony murder)
2,3,4 = malice is implied
52
What are the elements of causation that must be proved for the relevant crimes?
1. Cause in fact - but for
the result would not have occured 'but for' the D's conduct
(death of V must occur w/in 1 year and 1 day from the infliction of the injury/wound - abolished by most states)
2. Proximate Cause
ONLY arises when the V's death occurs because of the D's acts but in a manner not intended/anticipated by the D - is the chain of proximate cause causation broken?
General rule: a D is responsible for all results that occur as a 'natural and probable' consequence of his conduct, even if he did not anticipate the precise manner they would occur.
53
When is the chain of proximate causation broken (for a V's death)?
By the intervention of a 'superseding factor'/intervening event.
General rule: an intervening act shields the D from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the D.
NB - a 3rd party's negligent medical care or a victim's refusal of medical treatment for religious reasons = both foreseeable risks.
54
What are the 3 types of murder at common law?
1. Murder
2. Voluntary manslaughter
3. Involuntary manslaughter
55
What is the deadly weapon rule in murder? What is a deadly weapon?
Intentional use of a deadly weapon authorizes a permissive inference of an intent to kill.
A deadly weapon is any instrument (or in some circs, any part of the body) used in a manner calculated or likely to produce death or serious bodily injury.
e.g.
- drive a speedboat into a group of swimmers
- fire a bullet into a crowded room
- professional boxer beats up and kills someone
56
What is voluntary manslaughter?
A killing that would otherwise be murder but is distinguishable from murder by the existence of adequate provocation
i.e. a killing in the heat of passion
NOTE - with manslaughter, the jury will be instructed on both murder + manslaughter as they are crimes that would otherwise be murder but distinguished by the existence of another element.
57
What is 'adequate provocation' for the purposes of voluntary manslaughter?
4 tests:
1. Provocation must be one that would arouse sudden and intense passion in the mind of an ordinary person such as to cause him to lose his self control
2. D must have in fact been provoked
3. Must NOT have been a sufficient time between the provocation and the killing for passions for a reasonable person to cool
4. the D did in fact NOT cool off between the provocation and the killing
58
When is provocation most frequently seen as adequate for the purposes of VM?
Being subject to a serious battery or a threat of deadly force, and
Discovering one's spouse in bed with another person.
'mere words' = often inadequate
59
What are the two types of involuntary manslaughter?
1. Criminal negligence (or recklessness)
2. Unlawful act manslaughter
60
What is the difference between depraved/abandoned heart murder and involuntary manslaughter based on negligence?
Depraved/abandoned heart murder involves a greater risk of death than involuntary manslaughter based on recklessness.
Depraved/abandoned heart murder - the recklessness is different - D must have a reckless indifference to an unjustifiably HIGH risk to human life.
Recklessness generally = only a substantial and unjustifiable risk.
61
What are the 2 subcategories of 'unlawful act' manslaughter
Unlawful act manslaughter - a killing caused by an unlawful act
2 subcategories =
1. Misdemeanor-manslaughter rule = a killing in the court of a commission of a misdemeanor = manslaughter
2. Felonies not included in felony murder = killing caused during the commission of a felony but does not qualify as a felony murder case = manslaughter
(death must also be a foreseeable consequence of the felony)
62
What is first degree murder?
All murders are second degree unless the prosecution proves: there was a deliberate and premeditated killing.
Deliberate = D made the deicision to kill in a cool and dispassionate manner
Premeditated = the D actually reflected on the idea of killing, even if only v.brief.
63
What is the 'imperfect self defense' doctrine?
Recognized by some states - murder may be reduced to manslaughter even though:
1. D was at fault in starting the altercation; or
2. the D unreasonably but honestly believed in the necessity of responding with deadly force (so D's actions do not qualify for self-defense).
64
What is needed for a claim of self defense in a murder charge?
Claim of SD will be successful against a murder charge if the action resulting in death is reasonably necessary to prevent imminent death or great bodily harm to D from the use of unlawful force.
i.e. the D must be:
1. without fault
2. confronted with unlawful force
3. reasonably believing that they are threatened with imminent death or great bodily harm
IF D was AT FAULT = imperfect self defense doctrine (reduction of murder to manslaughter)
65
What are the factors to analyze for an evidentiary search and seizure?
1. Search/seizure right: Does the D have a 4th Amendment right (seizure by the govt concerning a place/thing in which the D has a reasonable expectation of privacy)?
OR does the search involve a physical intrusion into a constitutionally protected area?
2. Warrant: Did the police officers have a valid warrant?
(i.e. issued by a neutral and detached magistrate on a showing of probable cause and reasonably precise as to the place to be searched and the items to be seized?)
3. If the officers did NOT have a valid warrant, was the search/seizure w/in one of six exceptions to warrant req?
66
What must a person have in order to object to a governmental search?
Standing!
To have a 4th Amendment right, a person must have their own expectation of privacy with respect to the place searched or the item seized (determination made on the totality of the circs).
Person has a reasonable expectation of privacy any time:
1. The person owned/had a right to possession of the place searched
2. The place searched was in fact their home (whether or not they had a right to possession of it e.g. grandchild living at grandparent's home).
3. The person was an overnight guest of the owner of the place searched.
67
When is there no expectation of privacy?
There is no reasonable expectation of privacy for things that are held out to the public.
Generally includes information in the hands of 3rd parties.
Examples:
- sound of your voice
- style of your handwriting
- paint on outside of car
- account records held by a bank
- location of your car on a public street/driveway (GPS = search w/in 4A)
- anything that can be seen across open fields
- anything that can be seen flying over public airspace
- odors emanating from luggage/car
- garbage on curb for collection
- things in plain view of neighbors
68
What is the open fields doctrine
Anything outside the curtilage (dwelling house and outbuildings) are subject to police entry and search as they are 'held out tho the public' and so unprotected by 4A.
69
How is 'attempt' established?
Person must intend to commit the target crime (specific intent) and take a substantial step (more than mere preparation) towards committing that crime.
70
What must someone do to withdraw form an attempt?
The person's renunciation of the criminal purpose must be voluntary and complete. Fear of being caught is not sufficient.
71
What is required to establish an assault?
Intentional creation (other than by mere words) of a reasonable apprehension in the mind of the victim (NOT actual touching, actual touching = battery), of imminent bodily harm (or intent to commit a battery)
72
What is the difference between an accomplice and an accessory after the fact?
Accomplice (includes accessory before the fact) = a person who aids/encourages principal to commit the illegal conduct and is liable for the principal crime if they intended to aid/encourage crime
Accessory after the fact = person who aids another to escape knowing that he has committed a felony. They will be liable for the separate, less serious crime, of being an accessory after the fact.
73
What is the automobile exception to the warrant requirement of the 4th A?
Police may search a vehicle if they have probably cause to believe that it contains contraband, fruits or instrumentalities of a crime.
An automobile stop constitute a seizure - not only of the automobile's driver but also of any current passengers.
74
How is a crime for embezzlement established?
=
The fraudulent
Conversion (dealing w/the property in a manner inconsistent with the arrangement by which D has possession)
Of personal Property
Of another
By a person in lawful possession of that property
(amount embezzled is determined when the D converted it to their own use)
75
Is a state required to recognize an insanity defense?
No, no state is constitutionally required to recognize any form of an insanity defense. SO a state is within its power to eliminate an insanity defense without violating a D's constitutional protections under due process.
If a state does recognize an insanity defense, it is is constitutionally permissible to shift the burden to the accused to prove it is an affirmative defense. States have the ability to determine whether the prosecution/defense bears the burden of proof as to an affirmative defense.
76
Is a probationer/parolee 'in custody' for the purposes of a Miranda warning?
No! A person is 'in custody' only when under 'formal arrest or restraint on the freedom of movement of the degree associated with a formal arrest'.
The 'in custody' requirement is not met simply because a probationer/parolee is under a general obligation to appear and answer questions truthfully.
MIUST be custodial interrogation!
77
When is there a right to jury trial?
If there is a serious offense = an offense where imprisonment for more than 6 months is authorized
78
What kind of trial and what kind of burden of proof is needed when increasing a sentence beyond the statutory maximum, if additional facts are proved?
Jury trial and beyond a reasonable doubt
Proof of the facts must be submitted to the jury and proved beyond a reasonable doubt. Any fact that increases the penalty for a crime is considered an element that must be submitted to the jury.
79
Is abandonment a defense to attempt?
Majority rule: abandonment is never a defense.
If the defendant had the intent and committed an overt act, the defendant is guilty of attempt despite the fact that they changed their mind and abandoned the plan before the intended crime was completed.
The M.P.C., followed in a number of jurisdictions, provides that a fully voluntary and complete abandonment is a defense.
80
What is required for a claim of self defense to a murder charge?
D must show that he believed the action taken was necessary to prevent imminent death or great bodily harm to himself from unlawful force and that the belief was reasonable.
81
What is the standard for determining when a prospective juror should be excluded for cause?
Whether a juror's views would prevent or substantially impair the performance of their duties in accordance with their instructions and oath.
82
Exclusionary rule
83
What are the exceptions to an arrest needing a warrant? How is arrest defined - walk through the steps when answering a q re arrest.
Intro: an arrest occurs when the police take a person into custody against her will for the purposes of criminal prosecution or interrogation.
A seizure is an exercise of control by the govt of a person or thing - governmental detentions of a person (incuding arrests) certainly constitute seizures of the person.
An arrest falls under a 'seizure' and so in order to satisfy the 4A, you need to show that:
1. there is a govt actor
2. there was indeed a seizure - there is an application of physical force OR submission to the show of force, and a reasonable person would think they are not free to leave, under the totality of the circs
3. The D has standing to bring the claim - he personally has a reasonable expectation of privacy
4. there was probable cause for the arrest
5. was there a validly executed warrant
For a valid arrest you need probable cause + a warrant
BUT exceptions (NO warrant req'd) =
1. probable cause a felony has been committed
2. Misdo committed in presence of officer (the officer is aware of it through any of her senses)
3. Police have consent to enter home
4. Exigent circs, etc.
84
What effect does an unlawful arrest have on:
1. Criminal detention and prosecution?
2. Evidence seized?
1. No impact - if police improperly arrest a person (e.g. at home w/o a warrant), they can detain him if they have probable cause to do so and the invalid arrest is NOT a defense to the offense charged.
2. BUT evidence seized during the unlawful arrest = fruit of the poisonous tree doctrine - it may not be used against the D at trial because of the exclusionary rule
85
What are the requirements to stop someone for a stop and frisk?
This is an exception to the warrant requirement. BUT the police must have reasonable suspicion supported by articulable facts/reasonable articulable suspicion that someone is breaking the law/criminal activity AND to conduct a FRISK, they must have reasonable suspicions that they have a weapon/are armed and dangerous.
Whether there is 'reasonable suspicion' is judged under the TOTALITY of the circs.
E.g. suspect standing on a corner in a high crime area flees when he sees police arrive = both factors together = sufficiently suspicious (but neither alone would be sufficient).
Reasonable suspicion does not have to be grounded in a police officer's law enforcement training/experience - can derive from his common sense and outside experiences e.g. from an informant (must be indica of reliability)/police bulletin/flyer.
86
For reasonable suspicion under stop and frisk, how is this described?
More than just a vague suspicion - e.g. not enough that detainee is just in a crime-filled area BUT full probable cause is not required.
Whether standard is met is judged on totality of the circs.
Reasonable suspicion does not have to be grounded in a police officer's law enforcement training/experience - can derive from his common sense and outside experiences.
87
What do you need to look at where there is a informant's tip re suspicious activity? I.e. for a stop and frisk
Where the source of suspicion is an informant's tip, the tip MUST be accompanied by an indica of reliability, including predictive information sufficient to make the officer's suspicion reasonable.
So for example, a tip just telling someone to stop and frisk a guy wearing a plaid shirt at a bus stop is not sufficient. There must be an indica of reliability - e.g. there is a tip re a woman that predicts her movements for the day, the police follow the woman and see that her movements are accurately predicted by the informant, the informant thus is seen as reliable - it is reasonable for the police to believe she must have inside knowledge and so they can rely on her tip for reasonable suspicion.
88
What do you need to look at where there is an informant's tip re probable cause? I.e. in order to get a warrant
Courts must weigh (relevant factors):
- the credibility of the info
- the reliability of the informant
- corroboration by police
- the informant's declaration against interest
Need not be a particular fact about the informer - just needs to be enough information for the magistrate to make a common sense evaluation of probable cause.
89
What is probable cause? When does it apply? What must it be supported by?
90
SUPPRESSION?!?
When can a suppression hearing be used?
Can be used for due process violation during the ID process
91
All warrantless searches of homes are presumed unreasonable - who has the burden of proving exigent circumstances?
The government - burden of proving exigent circumstances to overcome this presumption
92
Can the police search for the subject of a warrant in the home of a third party?
NO! They would need a separate search warrant for the 3P home.
If the police do execute a valid arrest warrant at the home of the 3P w/o obtaining a search warrant or the home, the ARREST is still valid BUT evidence of any crime found in the home cannot be used against the owner of the home - it is the fruit of an unconstitutional search.
BUT arrestee will NOT be able to have such evidence suppressed unless he can establish a legitimate expectation of privacy in the home.
93
How long can a stop be for a stop and frisk?
Investigatory stops are generally brief BUT are NOT subject to a specific time limit.
For a stop to be valid, the police must act in a diligent and reasonable manner in confirming or dispelling their suspicions.
94
What has to happen for an officer to make an arrest during a stop and frisk?
The officer must have probable cause. Once he has probable cause, the detention becomes an arrest and he can proceed on that basis. He can conduct a full search incident to that arrest.
95
What would not constitute a stop?
If an officer merely approaches a person but does not detain them
A seizure or stop only occurs if a reasonable person would believe she is not free to decline an officer's requests or otherwise terminate the encounter.
96
Can police seize items during a stop and frisk?
Police can briefly seize items upon reasonable suspicion that they contain contraband or evidence BUT such seizures must be limited.
97
What is needed for a police officer to make an automobile stop?
At least reasonable suspicion to believe that a law has been violated.
98
Does the fact that a police officer stops a car based on reasonable suspicion which then turns out to be incorrect (e.g. police officer makes a mistake as to the law such as the need to have two brake lights working), invalidate the seizure?
NO - as long as the mistake was REASONABLE
99
If a car is stopped for no reason and then drug paraphernalia is found, can the evidence be lawfully seized?
NO! No reasonable suspicion.
automobile stop = seizure of the car and driver and any passengers
Passenger/driver would have standing to challenge admissibility of drug paraphernalia as fruit of an unlawful arrest.
100
If police have lawfully stopped a car, can they order the occupants out?
Yes, in the interests of officer safety. AND if officer believes detainee is armed and dangerous, she may conduct a frisk of the detainee.
101
Where can police search in the car?
The passenger compartment of the vehicle to look for weapons and any locked containers in vehicle and trunk IF they could reasonably hold evidence sought.
AND if officer believes detainee is armed and dangerous, she may conduct a frisk of the detainee.
102
If an officer reasonably believes a traffic law has been violated, can they stop a car even if the ulterior motive is to investigate a crime for which the officer lacks sufficient cause to make a stop.
YES
103
If police stop car for traffic violation, can they allow a narcotics detection dog to sniff the car?
YES as long as the police don't extend the stop beyond the time needed to issue a ticket and conduct ordinary inquiries incident to such a stop.
104
What are the requirements for a valid roadblock?
105
Can police detain suspect to prevent him going home and destroying evidence of drugs while they obtain a search warrant?
YES if they have PROBABLE CAUSE to believe suspect has hidden drugs in their house - can prohibit him for a reasonable time from going to the house to destroy the evidence
106
For automobiles, when do you need reasonable suspicion and when do you need probable cause?
EXPAND
stop = reasonable suspicion
search and seizure = probable cause
107
PROBABLE CAUSE and REASONABLE SUSPICION, type up book notes for Miranda and searches
108
What are prerequisites to the admissibility of any statement made by the accused during custodial interrogation?
Miranda warnings and a valid waiver
109
Does a Miranda warning need to be given verbatim?
No, as long as the substance of the warning is there
110
Do you need to repeat the Miranda warning when there is a break in the interrogation?
No, generally no need to repeat UNLESS time lapse has been so long that a failure to do so would seem like an attempt to take advantage of suspect's ignorance of his rights.
111
When and to whom MUST a Miranda warning be given?
Anyone in police custody and accused of a crime, no matter how minor, must be given Miranda warnings PRIOR to interrogation by the police.
112
Does Miranda apply to an informant who the D does not know is working for the police?
NO! The warnings are intended to offset the coercive nature of police-dominated interrogation, and if the D does not know that he is being interrogated by the police, there is no coercive nature to offset.
113
Do Miranda reqs apply to a witness testifying before a grand jury?
NO!
114
What determines if 'custody' has been met for Miranda?
1. Whether a reasonable person under the circs would feel that he was free to terminate the interrogation and leave
2. does the environment have the same inherently coercive pressures of a station house questioning
IF voluntary detention = not custody
IF long and involuntary = custody
Like a traditional station house arrest = custody
= an OBJECTIVE test
look at:
- location of questioning
- whether officers had guns drawn
- length
- suspect's age
-whether he was told he could leave
Fact a suspect is incarcerated doesn't mean any interrogation of him is custodial - test is still whether his freedom of action is limited in any significant way.
115
Do MW's need to be given at traffic stops?
NO
116
When second police agency continues to question a suspect at a point when the first police agency terminates its questioning, do MW need to be given again?
No, the impact of an earlier denial of rights by the 1st dept carries over to questioning by the second agency.
117
What will the police do if the detainee does nothing - i.e. doesn't affirm right to remain silent or ask for an atty
Court will not presume a waiver nor that he has asserted a right to remain silent or to consult with an attorney. SO police can continue to question the detainee.
118
Can suspect waive his rights under Miranda?
YES, if knowing and voluntary - court looks to totality of circs.
If court can show that suspect got Miranda warnings and then chose to answer qs = likely sufficient.
119
Is a confession after a voluntary waiver of Miranda rights admissible if police don't inform suspect that his lawyer is attempting to see him?
YES! still admissible
120
What happens when a suspect makes an explicit, unambiguous and unequivocal indication that he wishes to remain silent? Can police reinitiate?
ALL questioning related to that particular crime must stop.
BUT police can reinitiate IF they wait a significant time and do not badger detainee into talking.
121
What happens when a suspect makes an unambiguous and specific indication that he would like an attorney? Can police reinitiate?
ALL questioning must cease until detainee is provided with an atty OR he reinitiates further questioning himself.
So police may not even question re a totally unrelated crime (they can if detainee merely invokes right to remain silent).
122
Can detainee waive his right to counsel after invoking it?
Yes and questioning may then resume.
123
How specific does a request for counsel need to be?
Sufficiently cleat that a reasonable police officer in the same situation would understand the statement to be a request for counsel.
'Maybe I should talk to a lawyer' = not specific enough
Police can continue to question until an unambiguous request is received.
Detainees agreement to talk constitutes a voluntary and knowing waiver of right to counsel.
NB - mere consultation with counsel prior to questioning does not satisfy the right to counsel - police cannot resume questioning with detainee in absence of counsel.
124
What is the 'question first, warn later' tactic?
If facts make it seem that the police used this tactic as a get around - police obtain confession from detainee w/o giving warnings and then give the detainee MW and obtain a subsequent confession - subsequent confession will be admissible if = 'question first warn later'.
BUT confession may be admissible IF original unwarned questioning seemed unplanned and the failure to give MW seemed inadvertent.
125
What is an exception to MW
Public safety - if police interrogation = reasonably prompted by concern for public safety, responses to the qs may be used in court, even though suspect is in custody and no MW (e.g. asking where someone hit a lethal weapon - dangerous to community).
126
How long does prohibition against questioning last after request for atty?
entire time D is in custody + 14 more days after the detainee returns to his normal life.
127
Confession obtained in violation of Miranda = OK for impeachment
128
Defenses to attempt - Factual and Legal impossibility, when do they arise.
Factual impossibility (almost never successful) - arises because D makes a mistake concerning an issue of fact such that if he has NOT been mistaken he would have known that his attempt had no possibility of success.
Legal impossibility defense - arises when not only the D's complete actions could not possibly be a crime, but also, even if the facts had been as the D believed them to be, no crime would have been committed. SO D engages in conduct thay he BELIEVES is against the law but he misconstrued the meaning of the statute and his actions are not in fact illegal - VERY rare.
129
Is impossibility a defense when it comes about due to attendant circumstances?
Impossibility is NOT a defense in attendant circumstances - had the circumstances been as they believed they were, what they set out to do would be a crime. BUT because circs were otherwise, it will not be a crime - most courts see this as FACTUAL impossibility and it will NOT be a defense.
130
What about where there is a drug dealer (D) who is selling buyer (B) cocaine and B is going to resell it. D knows that he is selling B flour but B believes he is buying cocaine. B then resells the flour to a police officer who arrests him. Who is guilty of attempt to sell cocaine?
Attempt - D must have the intent that the crime be committed and take a substantial step - more than mere preparation in furtherance of the crime.
D KNEW that the powder was flour and so cannot have intended to sell cocaine to B. D did not possess the requisite intent to commit the crime of selling/attempting to sell cocaine - no MR for intent. SO only B is guilty of attempting to sell cocaine (he believed it was cocaine when he sold it to the police officer). B did more than mere preparation - repackaged the flour, arranged the sale.
Impossibility is NOT a defense in attendant circumstances - had the circumstances been as they believed they were, what they set out to do would be a crime. BUT because circs were otherwise, it will not be a crime - most courts see this as FACTUAL impossibility and it will NOT be a defense.
131
In order to be charged of ANY degree of murder, malice must exist (felony, first degree and second degree). When does malice exist.
When a person:
- intends to kill
- intends to inflict great bodily harm
- intends to commit an inherent dangerous felony, OR
- acts with reckless indifference to an unjustifiably high risk to human life.
132
Does a D have a right to be present during jury selection?
YES, for a non-misdemeanor offense, the D must be present at every trial stage after formal proceedings have begun, including jury selection. HE MUST BE THERE.
IF D is not present during jury selection, his constitutional rights have been violated.
D can only miss if there is GOOD CAUSE - look this up!
If misdemeanor - D does not need to be present.
133
Where there has been an IMPROPER ARREST without a WARRANT, should the indictment of the person be dismissed?
REMEMBER - the effect of an unlawful arrest BY ITSELF has no impact on the subsequent criminal prosecution - it just means that any evidence seized is the fruit of an unlawful arrest and may not be used at trial against the D because of the exclusionary rule.
If the police improperly arrest a person they may detain him if they have probable cause to do so and so the invalid arrest is NOT a defense to the offense charged.
Remember to read the question here - it is easy to assume that it is asking you whether the arrest is valid (they are trying to trick you) BUT LOOK at what it is asking you - if it is asking whether an INDICTMENT is valid - it is. An invalid arrest, no matter how invalid it is, does not affect prosecution! An unlawful arrest by itself has no bearing on a subsequent criminal prosecution so any motions to dismiss an indictment should NOT be granted.
134
What happens when a person is arrested outside of the US?
RESEARCH THIS
135
IF a D is at trial and tells the judge that he is unhappy with his court-appointed counsel (public defender), and the judge refuses so the D represents himself and loses. D then appeals on the basis that he was deprived of his right to counsel - what should be looked at?
Under the 6A, D has a right to counsel at ALL CRITICAL STAGES of criminal prosecution. BUT D does have a right to represent himself at trial.
IF he chooses to represent himself, his waiver must be 'knowing and intelligent' and he is competent to proceed pro se. A D's waiver is voluntary if the court finds that the D has a rational and factual understanding of the proceedings against him.
Court would need to have inquired into whether the D had the knowledge necessary to represent himself or the understanding of what the undertaking would entail, or any rights he may have been waiving.
NB - on appeal, D has not right to represent himself.
136
If you're in a COMMON law jx and a man offers to sell drugs to a police officer but it is then found that the man has no drugs on his person, what is he guilty of? (jx applies dangerous proximity test)
He is guilty of solicitation.
Solicitation consists of counseling, advising or commanding another to commit a crime with the specific intent that the person commit the crime. The man committed criminal solicitation when he attempted to cause the undercover officer to commit the crime of possessing a controlled substance.
Why is this not attempt? Common law = dangerous proximity - man was not in dangerously close proximity to a completed offense because he did NOT have drugs in his possession.
137
In a criminal case, the prosecution has the burden to prove each element of a charged offense beyond a reasonable doubt BUT when does it switch to the D to prove beyond a reasonable doubt?
It switches when the D presents an affirmative defense - the burden of establishing this defense will switch to him.
Affirmative defenses include: consent, self-defense, insanity, necessity, entrapment, mistake of fact.
138
Is a victim's refusal to get medical treatment a foreseeable intervening act? Even if, had they got the medical treatment, they would have survived? (And so D is still liable)
A refusal to get medical treatment by the victim is foreseeable and is insufficient to allow a D to escape criminal responsibility.
Whether an intervening act = sufficient to break the chain of causality in a homicide case rests on the foreseeability of the intervening act. A D will be held criminally responsible or the foreseeable consequences of his actions - however if an unforeseeable act intervenes, a D will NOT be deemed responsible for the death.
139
What does voluntary manslaughter require? How does imperfect self defense relate to it?
VM = a killing resulting from adequate provocation (heat of passion killing) OR imperfect self defense.
Adequate provocation - the provocation would cause sudden an intense passion in an ordinary person, causing him to lose self-control, the D was in fact provoked, there was insufficient time for an ordinary person to cool off and the D did not cool off.
Imperfect self defense (honest but unreasonable mistake as to necessity of D's actions) - D murders someone while acting in self-defense and his criminal liability can be reduced to VM IF the D:
(i) provoked the initial alteration that required the self-defense; or
(ii) unreasonably believed deadly force was necessary.
140
Is a slap enough for adequate provocation under VM?
A jury should STILL be instructed as to VM if there is AT LEAST SOME EVIDENCE that the murder was done in the 'heat of passion'.
IT DOESN'T matter if the provocation is adequate in terms of instructing a jury - there is some and so they should be instructed to consider it.
MERE WORDS is probably not adequate provocation BUT NOTE - modern courts tend to be more reluctant to take such cases form juries and are more likely to submit to the jury the question of whether 'mere words' or similar matters constitute adequate provocation.
141
When the information in a search warrant is incorrect, will the evidence seized pursuant to the warrant be suppressed?
ONLY if there is evidence that the officer KNEW the information was false - the exclusionary rule is meant to prevent law enforcement officers from acting improperly.
IF the officer acted in GOOD FAITH RELIANCE on the warrant, the evidence will not be suppressed.
If the officer KNEW that the warrant contained false info - motion to suppress = granted.
142
TIP: read the question! E.g. if a question asks, 'what is the most serious degree of criminal homicide the D is guilty of?' - do not pick the one that suits the crime best, pick the most serious crime that would fit. See answer for example.
SO for example D holds a bank up at gunpoint and then shoots through the window at police men to distract them, in doing this he kills a passerby.
IF felony murder is classified as third degree by a state's statute. The D could be guilty also of second degree murder (depending on statute) but = extreme recklessness. SO the most serious crime would be the second degree murder, not the felony murder as this state has classified it as third degree.
143
A conspiracy does not apply where the members of the conspiracy agree to commit an act that was designed to protect people in a given class. I.e. the protected class cannot be guilty of committing a crime in violation of a statute that is DESIGNED TO PROTECT THEM.
Victims cannot be convicted of participate in the crimes that victimize them so a victim CANNOT be a conspirator to statutory rape.
Conspiracy requires an agreement of 2 or more people so if one of them is protected by a statute, there can be no conspiracy.
e.g. A + B conspire to transport A over state lines for the purpose of prostitution, in violation of a statute. A cannot be guilty of conspiracy as this statute was designed to protect her. SO B cannot be guilty of conspiracy as there are not 2 guilty parties.
A (female) +B are both underage and conspire to have sex. The charge of statutory rape is meant to protect minor children and A is within the protected class. SO she cannot be charged with conspiracy. It is impossible for her to commit the crime so she cannot be a conspirator and so B's conviction for conspiracy should also be reversed.
144
Can you conspire with a minor to commit a crime?
Yes!
145
When does Wharton's Rule apply?
ONLY in cases where the underlying crime is one that, by definition, requires the voluntary, collaborative, criminal participation of two persons.
Rape is not one but dueling would be or bribery - one person is intentionally providing something to the benefit of the other and the other willingly accepts.
146
Does a D have a reasonable expectation of privacy in a dept store fitting room?
YES! A person has a reasonable expectation that they will not be watched in a place that is closed from public view such as the fitting room.
If search = conducted by state actor = no exception to warrant requirement that would allow the search.
No plain view exception.
If someone is observed in a fitting room stealing a dress and then is stopped leaving the store to have their purse searched. The search of the fitting room is invalid (see above) BUT the search of the purse will not be if done by another officer who had probable cause to arrest and search her purse (based on the spying detective's info). BUT NOTE - if it weren't for the detective's illegal search, there would bot have been probable cause for the arrest and the seizure of the dress would be fruit of the poisonous tree - SO it would be suppressed as evidence.
147
2 people rob a bank but only one commits second degree murder (killing committed with reckless indifference to an unjustified risk of human life), can they both be convicted of murder? (i.e. explain co-felon liability)
Yes because the other person is the murderer's accomplice - he aided the other with the robbery with the intent to encourage the commission of the robbery.
An accomplice is liable for the original crime and other foreseeable crimes committed by the principal in furtherance of the crime.
It s foreseeable that entering into a bank to rob it with loaded guns could result in the firing of those guns and killing someone. SO the other person can also be convicted of murder under accomplice liability.
147
What is the intent needed for felony murder?
The intent to commit the underlying felony. SO the D must be guity if the underlying felony or an attempt of the underlying felony.
A valid defense to the underlying felony also serves as a valid defense to felony murder.
148
What are the limitations of liability to a felony murder?
- the victim's death must be a foreseeable result of the felony
- the victim's death must have been caused before the D reaches a place of temporary safety.
- the D is not liable for the death of a co-felon killed by police or the original victim
- agency theory (majority view) = a D will only be liable for felony murder of an innocent party when the killing was committed by the D or an accomplice.
149
Explain the courts differing views (i.e. majority and minority) re the agency theory for co-felon liability - i.e. where there is a felony murder and an innocent party is killed by a third party (e.g. police accidentally shoot an innocent bystander in a shoot-out at a bank robbery).
Majority view = Agency theory - the D is only found liable for felony murder of an innocent party when the killing was committed by the D or an accomplice - the D can argue that he is not responsible for the death of an innocent party by a 3P.
Minority view = Proximate cause theory - a D can be liable for the death of an innocent party caused by a third party because the D started the series of events that caused the death.
150
When a MBE question provides a statute, a stringent application of the statute is necessary over common law. If someone is charged with 'knowingly violating' a statute, what do you need to look at?
When a crime requires that the D act knowingly, he must have been aware that his conduct was of a particular nature, or at least know that his conduct will necessarily or very likely cause a particular result.
151
If a suspect makes an incriminating statement immediately after being arrested, should it be suppressed as a violation of his Miranda rights?
No! If the suspect voluntarily made the statement. The statement was not made during the course of a custodial interrogation and so should not be suppressed.
SO even thought D is in custody (he is arrested), he is not being interrogated - so there is NOT custodial interrogation.
152
What is required for someone to be found guilty of solicitation? Can someone be guilty of solicitation even if the person they solicit doesn't ACTUALLY carry out the crime they were asked to?
Solicitation = a specific intent crime that involves asking someone to commit a crime, with the intent that the crime be committed.
A D may be guilty of solicitation if he REQUESTS or ENCOURAGES another to commit a crime with the intent that the crime takes place.
The crime punishes the requesting or encouraging SO a D can be guilty of solicitation if he meets these requirements, NO MATTER HOW THE PERSON HE SOLICITS RESPONDS.
153
For attempt, the D must intend to commit the target crime AND take a substantial step BEYOND mere preparation in committing that crime. What would constitute a substantial step?
See written notes.
A substantial step is determined on a sliding scale and the closer the act is to the actual perpetrations of the target crime, the more likely that court will find that it constitutes a substantial step for purposes of attempt.
The closer the act is to planning and preparation, the less likely a court will find that it constitutes a substantial step.
154
Difference between a bilateral and unilateral conspiracy
Conspiracy = agreement between 2 or more people, the intent to agree and the intent to commit the target crime.
Bilateral - agreement between the two people must be a truly subjective agreement where both parties intend to commit the target crime.
Unilateral - only requires that ONE person agrees with the intent - so allows prosecution for conspiracy where, for example, a D agrees to commit a crime with an undercover police officer who never actually intends to commit the crime.
155
What must a judge make clear to a D if he pleads guilty? What happens to the plea if judge fails to do this?
Judge must make sure the D knows and understands:
(i) the nature of the charges against him and the crucial elements of the crime
(ii) the maximum possible penalty and any mandatory minimum and
(iii) that he has the right to plead not guilty and if he does plead guilty, he waives the right to trial.
- judge MUST determine whether/not the D understood that he had the constitutional right to a jury trial - D needs to VOLUNTARILY waive that right so must be informed of it in order to do so.
IF the D is not fully advised of each of his constitutional rights, the plea will be subject to a motion to set it aside.
NB - a guilty pleas may be knowingly and voluntarily entered at any time, even if there are pending pre-trial motions.
156
Someone finds a wallet, intending to keep it. The owner comes by and asks if he has seen it, he says no. What is the crime?
Larceny - the initial taking of the wallet was a trespass because he knew that the wallet belonged to someone else and he intended to convert the wallet to his own use in permanent deprivation of the spectator's right SO = guilty of larceny.
157
What is required for the crime of receiving stolen property?
The D receives stolen personal property that he knows was obtained through a criminal offense with the intent to permanently deprive the owner of his interest in the property.
The property must be ACTUALLY STOLEN at the tike of receipt by the D.
158
What kind of crimes is voluntary intoxication a defense against?
SPECIFIC intent crimes e.g. first degree murder
159
What does adequate provocation under manslaughter require?
Something to cause sudden and intense passion in the ordinary person.
160
What defenses are only available to specific intent crimes?
161
What is the defense of mistake of fact and to which crimes does it apply?
For specific intent crimes, a mistake of fact (reasonable or unreasonable be) can serve as a defense as the D does NOT have the requisite MR (the specific intent).
(for general intent - only a reasonable mistake of fact is ok, no MOF for strict liability crimes)
DO NOT confuse with 'factual and legal impossibility' for inchoate crimes - i.e. the crime was impossible to complete - these are generally not defenses to inchoate crimes.
162
Once suggestiveness has been established regarding an out-of-court identification procedure, how does the court determine the reliability of it?
By weighing the corruptinf effective of the suggestive identification against reliability factors, inclusing:
(i) the witness's opportunity to observe the perpetrator and defree of attention padi at the time of the offense
(ii) the accuracy of prior descriptions
(iii) the level of certainty at the time of the confrontation; and
(vi) the time between the crime and the ID
163
When can an improper out-of-court ID procedure require suppression of an in-court testimony?
ONLY if it is unduly suggestive, producing a substantial likelihood of irreparable misidentification.
However, even if an out of court ID is unnecessarily suggestive, suppression of an in court testimony is NOT required if the eyewitness's ID is shown to be reliable under a multi factor enquiry (see other card).
D can file a motion to suppress BUT even if there is an unduly suggestive out-of-court identification of a suspect, the prosecution CAN still have the opportunity to demonstrate that the eyewitness's (in-court) testimony is reliable - i.e. aside from the improper out-of-court ID process
164
Is murder a specific intent crime?
First degree murder (premeditated) is a specific intent crime. other murder - felony murder, intent to do serious bodily harm murder, depraved heart murder etc.
