Criminal law Flashcards
Recklessness
Defendant is aware that the conduct creates an unjustifiable risk, but ignores that risk and engages in the conduct anyway
Preliminary question hearing
If (1) the hearing involves the admissibility of a confession;
(2) a defendant in a criminal case is a witness and so requests;
(3) justice so requires
General intent crime- intoxication defense?
No. There is no specific intent for drunkenness to negate.
Involuntary manslaughter
an unintentional killing resulting without malice aforethought caused either by criminal negligence or during the or attempted commission of an unlawful act.
Criminal negligence requires the defendant’s conduct create a high degree of risk of death or serious injury beyond the standard of ordinary tortious negligence.
Murder
killing with malice aforethought:
(1) intent to kill;
(2) intent to inflict serious bodily harm;
(3) depraved hear murder; and
(4) felony murder
Felony murder- termination?
Resulting death must occur during the commission or perpetration of the felony.
The felony is deemed to have terminated when the felon has reached a place of temporary safety.
Unavailable declarant
hearsay statements are inadmissible unless the defendant is or was given an opportunity to cross-examine the declarant.
In determining whether the statement is testimonial in nature, the court will not consider whether the admissibility of the statement offends the interest of justice as a factor.
Attempted crime
A party must commit a substantial act toward perpetration of the crime. Under CL, it was necessary that the party commit the “last act” necessary to achieve the intended result; however today a substantial act toward perpetration of the crime is sufficient.
CL Burgulary
CL- breaking and entering of another’s dwelling at night with the intent to commit a felony therein.
CL breaking- Defendant created a breach or opening, (not merely took advantage of an opening left by the occupants, such as an unlocked/ajar door or window.
Arrest warrant- 3rd party house
Police generally may not legally search for the subject of an arrest warrant in the home of a third party absent:
(1) exigent circumstances;
(2) consent; or
(3) a search warrant for those premises
6th Amendment Right to Counsel
A defendant who has been charged is entitled to counsel.
No interrogation can occur without counsel present.
If a jail cell informant or other under-cover informant questions the defendant, the Miranda right to counsel does not apply, because this is not an official police interrogation, BUT the Massiah 6th A right to counsel does apply.
Therefore an informant (whether civilian or police officer) cannot question a defendant who has been charged, if there is no lawyer present.
However, if the jail cell informant is only a passive listener then the listener can report anything that the defendant might say voluntarily.
“Protective sweep”
Allowed after a search incident to a lawful arrest.
Protective sweep- cursory scan of adjoining rooms but not the entire domicile
To search the entire domicile- reasonable suspicion that an armed accomplice is on the premises
Felony-murder- no felony?
Not applicable to a homicide if no felony takes place.
Felony-murder- what felonies?
Arson
Burglary
Rape
Robbery
Kidnap
(BARRK)
OR any felony committed in a dangerous matter
6th Amendment right to counsel
Violated if police agents question the defendant without the presence of a lawyer after adversary judicial proceedings have begun
Adversary judicial proceedings are considered to have begun once formal charges against the defendant have been filed.
To violate 6th A right to counsel, police agent must do more than merely passively listen; the agent must actively solicit the information through questioning, or initiate a conversation with the defendant, or similar conduct to elicit a response
