Criminal Law Flashcards

Question

False Pretenses

Answer 1

Elements: * Obtaining title * to personal property of another * by an intentional false statement of a past or existing fact * with intent to defraud the other. Misrepresentation is required and victim must actually be deceived by or or act in reliance on the misrepresentation and must be major factor of victim passing title

Answer 2

Elements: * Obtaining possession * to personal property of another * by an intentional false statement of a past or existing fact * with intent to defraud the other.

Answer 3

Elements: * A taking * of personal property of another * from the other's person or presence * by force or threats of immediate death or physical injury to victim, family member or some person in victim's presence (if victim does not feel threatened then could be attempted robbery) * with intent to permanently deprive them of it. simulated deadly weapon will elevate to armed robbery

Answer 4

obtaining property by means of threats to do harm or to expose information.

Answer 5

Receiving possession and control of stolen personal property (must e stolen at time of receipt) known to have been obtained in a manner constituting a criminal offense by another perosn with intent to permanently deprive the owner of their interest in it

Answer 6

* The making or altering * a writing with apparent legal significance * so that it is false- representing that it is something that it is not, * with intent to defraud

Answer 7

* a breaking (creating or enlarging an opening by at least minimal force, fraud or intimidation, if consent to enter then no) * and entry - any part of the body/instrument inside * of a dwelling - used regularly for sleeping purposes * of another - occupation fine * at nighttime * with intent to commit a felony inside the structure

Answer 8

* The malicious (intention/reckless disreguard of obvious risk) * Burning (some damage) * of the dwelling * of another

Answer 9

M'Naughten Rule : * disease of the mind * causes a defect of reason * such that D lacked ability at time of their actions to either know the wrongfullness of thier actions or understand the nature and quality of their actions. Irresistable Impulse;: unable to control actions or confrom their conduct to the law Burden of proof - D must raise issue and prove by preponderance of the evidence.

Answer 10

Voluntary: intentional taking without duress of a substance known to be intoxicating * only defense if crime requires purpose (intent) or knowledge and intoxication prevented them from formulating the purpose or obtaining the knowledge. (specific intent crimes) Involuntary:taking of an intoxicating substance without knowledge, under direct duress or pursuant to medical advice while unaware of intoxicating effecg - can be terated as mental illness.

Answer 11

Under 7 no liability 7-14 - rebuttable presumption child unable to understand wrongfulness of their acts 14 and or older adults

Answer 12

Non - deadly force: a person without fault may use such force as the person reasonably believes is necessary to protect themself form the imminent us of unlawful force upon themself. No duty to retreat Deadly force : * without fault * confronted with unlawful force * reasonably believes that they are threatened with imminent death or great bodily harm Generally no duty of retreat but minority view requires retreat if victim can safely do so unless: * attack in victims own home * attack while making lawful arrest * assailant in process of robbing the victim. Aggressor can use if they * effectively withdraw and communicate to the other their desire to do so OR * victim suddently escalates minor fight into deadly altercation and initial aggressor has no chance to withdraw

Answer 13

D reasonably believe that the person assisted has the legal right to use force in their own defense. need reasonable appearance of right to use force.

Answer 14

* non deadly only when they reasonably believe that such conduct necessary to prevent or terminate unlawful entry into or attach upon dwelling. Deadly if violent entry AND person reasonably believes use of force is necessary to prevent a personal attack on themselves or another in the dwelling/prevent felony in dwelling

Answer 15

Never deadly Non deadly may be used to defend property in one's possession from imminent unlawful interference (but not if request to refrain would suffice. Regaining possession only if they are immediate pursuit of taker.

Answer 16

* Non deadly - used by police officers if reasonably necessary to effectuate an arrest. * Deadly only if it is necessary to prevent felon's escape and police reasonable believes that felon threatens death or serious bodily harm. bystander transfered police authority and good faith assistance justified even if police out of scope. Private - nondeadly force to make arrest if crime committed and person has reasonable grounds to believe the person arrested in fact committed the crime. Deadly- only if they actually guilty of the offense. Resisting arrest - only non deadly force used for improper arrest. Deadly if did not know police officer.

Answer 17

Person can escape liability for an offense other than intentional hoomicide if they perform an otherwise criminal act under the threat of immidiate infliction of death or great bodily harm provided they reasonably believe it will be inflicted upon themself or a member of their immediate family if they do not perform such conduct. * Defense to all but intentional homicide * D reasonably believed that other person would imminently inflict death or great bodily harm upon them/member of their fam if D did not commit crime. may also be for third person. * Threats ot property traditionally insufficient but some allow if value of property outweighs harm done to society by commission of crime

Answer 18

reasonably believed commission of crime was necessary to avoid and imminent and greater injury to sociaety than involved in crime. Objective test. Limited if there was a death Limited if they were at fault in creating the situation in which necessity arorse.

Answer 19

only if it shows D lacked state of mind required for crime If mistake offered to disprove specific intent it need not be reasonable but for anythign else must have been a reasonable mistake or ignorance.

Answer 20

Justification (self defense, defense of property, necessity) Duress Mistake of Fact - mental state element only Mistake of Law - must be statute not availabe, reasonable reliance on judicial interprestation or oficial advice. Consent Entrapment

Answer 21

Criminal design originated with law enfocement officers and D was not predisposed to commit the crime prior to contact by the government.

Answer 22

4A provides that people should be free from unreasonable searches and seizures. * any exercise of control by a gov't agent over a person or thing is a seizure * A seizure occurs when under the totality of the circumstances a reasonable person would feel that they were not free to decline officer's requests or otherwise terminate the encounter

Answer 23

Occurs when police take a person into custody against their will for the purpose of criminal prosecution or interrogation. Requires probable cause Probable cause is required: trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed/committing a crime for which arrest is authorized by law. Based on totality of circumstances Warrant generally not required except for home arrests. (may only enter home if reason to believe suspect is in it)

Answer 24

no impact on subsequent criminal prosecution

Answer 25

Police have authority to briefly detain a person for investigative purposes even if they lack probable cause to arrest if they have **reasonable suspicion** (totality of the circumstances) of criminal activity or involvement in a completed crime supported by **articulable facts**. If reasonable suspicion that detainee is armed and dangerous may frisk for weapons. Police must act in a diligent and reasonbale manner in confirming or dispelling suspcions. brief property seizers valid if based on reasonable suspicion

Answer 26

Where reasonable suspicion is based on informant's tip there must be indicia of reliability (predictive information).

Answer 27

Generally - reasonable suspicion to believe law has been violated. Auto stop is a seizure of all occupants Information Checkpoints and road blocks constitutional if for purposes other than seeking incriminating info. To be valid roadblock must: * stop cars on the basis of some neutral, articulable standard and * be designed to serve purposes closely related to a particulary problem pertaining to automobiles and their mobility.

Answer 28

1. IS there government conduct 2. Is there standing: did the D have a reaonable expectation of privacy or is it an intrustion into a constitutionally protected area. 3. Is there a warrant and was it proper and properly executed? 4. Does it meet one of the 6 exceptions to the warrant requirement

Answer 29

To establish REP, D must show he had at least an ownership or possessory interst in the place searched or items seized. Based on totality of the circumstances: * person owned or had right to possession of the place searched * place was their home * person was overnight guest of the owner of the place searched. * *sometimes* person owns property seized and they have reasonable expectation of privacy in the item or area searched. (purse) never something thrown away * Things held out to the public - generally no but cell csite location info stored in the hands of third parties is a yes

Answer 30

Must have: * probable cause - to believe seizable evidence will be found on the person or premises at the time the warrant is executed. * particularity - must describe place to be searched and items seized Must be issued by Neutral and Detached magistrate

Answer 31

Search warrant based on affidavit will be held invalid if D establishes all three: 1. false statement was included in the affidavit by the affiant 2. the affiant intentionally or recklessly included the fasle statment 3. false statement was material to the finding of probable cause BUT - evidence obtained by police in reasonable reliance on a facially valid warrant may be used by the prosecution despite ultimate finding that the warrant was not supported by probable cause

Answer 32

* only police * without unreasonable delay * knock and announce and wait reasonable time for admittence unless reasonable suspicion that it would be dangerous or futile or would inhibit investigation. **violations will not result in suppression of evidence otherwise properly obtained** * No 3rd parties unless present to aid in identifying stolen property * can detain occupants of the premises during a search but not to search those persons found on th epremises no named in warrant. (but terry stop).

Answer 33

CAPISH E3 * Consent * Automobile Search * Plain View * Incident to Constitutional Arrest * Stop and Frisk * Hot Pursuit * Exigent Circumstances * Evanescent Evidence * Emergency Aid

Answer 34

Upon a lawful arrest based on probable cause the police may contemporanously search a person and the areas within his wingspan. Police may also make a protective sweep of the area if they beliee accomplices may be present * MUST BE CONSTIUTIONAL ARREST: probable cause to believe a law has been violated and other constitutional requirements * Then police may make a protective sweep of the area (person and person's wingspan) IF believe accomplices may be present * must be contemporanous in time and place with the arrest. TECHNOLOGY: court will balance the degree to which the search intrudes upon a persona' privacy againtt degree serach needed to promote legitimate governmental interests. (Breathalizers not blood tests, outside cell phones not data).

Answer 35

Police may search passenger compartment of automobile incident to arrest only if at time of search: * arrestee is unsecured and may ain access to interior of vehicle; **OR** * police reasonably believe that evidence of the offense for which the person was arrested maybe found in the vehicle.

Answer 36

Police may make an inventory search of belongings pursuant to established department procedure (similarly impoundment of vehicle That can be admitted as evidence.

Answer 37

If Police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search whole vehicle and any container that might reasonable contain item for which they had probable cause to search. Police may tow and search later but cannot be searched if in driveway fo suspect's home Search can be extended to passengers belongings Probable cause may arise after car is stopped but must be before search

Answer 38

* Police legitimately on the premises * discover evidence, fruits or instrumentalities of crime, or contraband * See evidence in plain view and * have probable cause to believe (immediately apparent) that the item is evidence, contraband, or a fruit/instrumentality of crime.

Answer 39

Warrentless search valid if police have voluntary consent. Knoweldge of right to withhold consent is not a prerequisitie to establishing voluntary consent. The scope of search may be limited to scope of consent but generally extends to all areas to which a reasonable perosn under the circumstances would believe it extends. Must be voluntary by person with authority to consent: * apparent equal right to use or occupy the property may consent to the search BUT occupant cannot give valid consent when co-occupant is present and objects to the search and search is directed against co-occupant BUT if co-occupant removed for a reason unrelated to refusal, police may act on consent of remainig occupant. Scope is limited by scope of consent but extends to areas to which a reasonable person under the circumstances would believe it extends.

Answer 40

Terry Stop: brief detention for purpose of investigating suspicious conduct Terry Frisk: patdown of outer clothing and body to check for weapons (reasonable belief armed and presently dangerous) unless has specific info that a weapon is hidden in particular area of suspect's clothing. Plain feel, weapon or contraband then can reach into clothing and seize. Police officer may stop person without probable cause for arrest if they have an **articulable and reasonable suspicion** of criminal activity. If officer reasonably believes person armed and dangerous may conduct protective frisk of detainee's outer clothing to search for weapons. May reach into clothing if reasonably believes on plain feel there is a weapon or contraband but cannot manipulate closing to get better feel

Answer 41

* Police in hot pursuit of fleeing felon may make a warrantless search and seizure and may even pursue suspect into private dwelling. BUT if just misdemeanor then not warrantless entry into home. 15 minute rule of thumb

Answer 42

Police may seize without a warrant evidence likely to disappear before warrant can be obtained. evidence that might disappear quickly if police took time to get a warrant. * scrape under suspects fingernails

Answer 43

* PO may enter premises without a warrant if officer faces emergency that threatens the health/safety of an individual or public.

Answer 44

Warrant/Probable cause not required for public school officals to search public school students and their posessions - only reasonable grounds. : * moderate chance of finding evidence of wrong doing * measures adopted are reasonably related to objectives of the search * search not excessively intrusive in light of age and sex of student and nature of infraction.

Answer 45

Border is a free for all

Answer 46

Is a search under the 4A - Valid warrant required can be issued if: * showing of probable cause * suspected persons involved in conversations to be overheard are named * describes with particularity the conversations that can be overheard * limited to short period of time * terminated when desired info obtained * return is made to the court showing what conversations have been intercepted

Answer 47

* Speaker assumes the risk if they make no attempt to keep conversation quiet. * Pen registers - but require judicial approval by statute.

Answer 48

If obtained in manner that shocks the conscience (offends a sense of justice) inadmissible under the Due Process clause.

Answer 49

Must be voluntary as detemined by the totality of the circumstances. Involuntary where official compulson (not by mental illness) Harmless error test applies - conviction wneed not be overturned if there is overwhelming evidence of guilt

Answer 50

Conviction need not be overturned if other overwhelming evidence of guilt. Government must show beyond reasonable doubt error was harmless.

Answer 51

* Right to assitance of counsel in all criminal proceedings (all critical stages of a prosecution AFTER judicial proceedings have begun --formal charges filed) * Prohibits police from deliberately eliciting incriminateing statement from defendant outside presence of counsel after D has been charged unless D waives right to counsel. Not applicable - blood sampling, handwriting/voice, photo identifications psot convicion proceedings except appeals OFFENSE SPECIFIC - d may be questioned re unrelated, uncharged offenses without violating SA right (but may implicate 5A right.

Answer 52

each requies proof of an additional element that the other crime does not require.

Answer 53

must be knowing and voluntary. does not require presence of counsel if counsel appointed by court.

Answer 54

* non trial proceedings - harmless error rule * if trial proceedings then automatic reversal of conviction (including erroneous disqualification of privately retained counsel at trial).

Answer 55

statement obtained in violation of a D's 6A right to counsel, not admissible for case in chief may be used to impeach contrary trial testimony. a

Answer 56

Required when suspect in Custodial Interrogation. Must be informed in substance: * right to remain silent * anything they say can be used against them in court * right to presense of an attorney * if can't afford an attorney one will be appointed for you if you so desire.

Answer 57

**Custody**: reasonable person would: * not feel free to terminate interrogation and leave, * whether relevant environment presents the same inherently coercive pressure setting more like traditional arrest more likely custody (inapplicable at Grand Jury Hearing) * Interrogation - words and/or conduct l*ikely to elicit an incriminating response.* NOT ROUTINE BOOKING QUESTIONS

Answer 58

* **Do Nothing:** no waiver but will not presume right to remain silent or consult with attorney, police may contine to question * **Waive rights - **gov't must show by preponderance of evidence waiver was knowing and voluntarily given. Court looks at totality of circumstances * **Invocation of right to remain silent**: must be explicit unambigous and unequivocal. Police must scrupulously honor request (no badgering) Questioning may be reinstates if waited a significant amount of time and re-Mirandized and question limited to a crime not the subject of the earlier questioning. * **Invocation of right to counsel** must unambiguously indicate speake to counsel then all questioning must cease until counsel provided unless detainee: * waives right to counsel -reinitiates questioning * released back to life and 14 days passed since release

Answer 59

* May use confession for impeachment * if obtain confession pre M warnings and then give M warnings and obtain confession, subsequent confession inadmissible if intentional but admissible if original confession was unplanned and failure was indavertent * Nontestimonial Fruits of Unwarned Confession - evidence surppressed if failure puposeful, if not then likely not supressed.

Answer 60

interrogation allwoed when it was reasonably prompted by a concern for public safety

Answer 61

suspect has right to presence of attorney at any post charge line up or show up. (not photo identifications or physical evidence takings) **Identification can be attacked as denying due process if identification is unnecessarily suggestive AND there is a substantial likelihood of misidentification** Both prongs must be met and identification must be extremely suggestive. ** not 5A self incrimination defense here because 5A protects against compelled testimonial evidence and a line up is physical evidence not testimonial in nature.**

Answer 62

Exclusion of in court identification. BUT: * independent source - opportunity to observe at the time of the crime At hearing in absense of jury gov't bears burden that (1) counsel was present, (2) accuse waived counsel OR (3) independent source for in court identification. D must prove alleged due process violation

Answer 63

prohibits introduction of evidence obtained in violation of 4,5,6A rights Uncontitutionally obtained evidence is inadmissible at trial and all fruit of the poisonous tree also excluded UNLESS costs of excluding the evidence outweigh the deterent effect exclusion would have on police misconduct. Exceptions: 3 INs of breaking the chain: Independent source, intervening act of free will, inevitable discovery. * fruits derived form statements obtained in violation of Miranda * evidence obtained from source independent of intitial unconstutional source * evidence for which connection between unconstitutional police conduct and evidence is remote (intentional?) or interrupted by intervening circumstance so causal connection between police misconduct and evidence broken (attenuation - includes intervening acts of free will by D) * Inevidable discovery - would have been found anyway * violations of knock and announce rule.

Answer 64

Good faith reliance on : * Law * Defective Search Warrant * Clerical Error Exceptions to Limitation: * underlying affidavit is so lacking in probable cause no reasonable police officer would have relied on it * underlying affidavity is lacking in particularity that no reasonable officer woudl have relied on it. * police officer or prosecutor lied to or misled the magistrate when seeking the warrant * magistrate is biased and therefore has wholly abandoned neutrality

Answer 65

Totality of circumstances - length of delay, reason for delay, whether D asserted his right and prejudice to D Attaches once D is arrested or charged.

Answer 66

* Serious offenses - imprisonment of 6 months or more * verdict must be unanimous

Answer 67

* minimum of six jurors * right to have juror selected from representative cross-selection of community violated if underrepresentatio of distinct and numerically significant group * Preemptory challenges to exclude potential jurors solely on race or gender violates equal protection

Answer 68

Must be voluntary and intelligent * Judge must address defendant personally, on the record, and in open court * Judge must be aware D knows and understands: * nature of the charge and the crucial elements * Maximum possible penalty and any mandatory minimum * right not to plead guilty and if he does waives right to trial

Answer 69

Exculpatory Evidence: Failure to do so is a violation fo Due Process Clasue and grounds for reversing a conviction if D can prove: * evidence is favorable to D because it either impeaches or is exculpatory AND * prejudice has resulted - reasonable probabilty that the result of the case would have been different if undisclosed evidence presented at trial.

Answer 70

Incompetency to stand trial is a bar to trial based on D's mental condition at time of trial. Incompetent to stand trial if : lack a rational as well as a factual standing of charges and proceedings. lack a sufficient present ability to consult with lawyer with a reasonable degree of understanding. burden on D to show by preponderance of evidence (clear and convincing unconstitutional).

Answer 71

6th and 14A guarantee right to a public trial Pretrial proceedings presumptively open Trial - 1A right to attend (public and press)

Answer 72

Due Process violated if Judge shown to have actual malice against D or to have had a financial interest in having trial result in guilty verdict. Impermissible bias also is present when judge earlier had significant personal involvement as prosecutor in critical decision regarding D's case.

Answer 73

* Trial conducted in manner making it unlikely that jury gave evidence reasonable consideration * state compels D to stand trial in prison clothing * State compels D to stand trial or appear at penalty phase visibly shackled (unless necessary) * Jury exposed to influence favorable to prosecution

Answer 74

Prosecutor may exercise peremptory challenges for any reason except equal protection clause forbits use of peremptory challenges on race or gender. 1. D must show facts/circumstances that raise and inference that exclusion based on race or gender 2. Upon such a showing prosecutor must come forward any race neutral explanation for the strike 3. judge then makes determination was a genuine reason or just a pretext. If judge believes sincere then upheld.

Answer 75

whether Juror's views would prevent or substantially impair performance of their duties in accordance with their instructions and oath.

Answer 76

if substantive law provides sentence may be increased beyond maximum for crime if additional facts are proved, proff of facts must be submitted to the jury and proved beyond a reasonable doubt. right to jury is violated if judgemakes decision. BUT judge can decide whether sentences run concurrently or consecutively.

Answer 77

D has right to defend themself at trial if in judgment of judge: **waiver is knowning and inteligent** and based on trial judge's consideration of D's emotional and psychological state, **D is competent to proceed pro se** (but not on appeal).

Answer 78

* Generally presumed * Must show: deficient performance of counsel AND but for deficiency proceeding wouls have been different. * must be specific and cannot base claim on inexperience, lack of time to prepare, gravity of charges, complexity of defenses or accessibility of witnessses to counsel. Plea bargains: D must show deficient performance and reasonable possibility that the outcome of plea process would have been different. Failure to notify - D would have likely accepted, plea liekly would have been entered without Prosecutor cancelling it.

Answer 79

* not absolute where preventing such confrontation serves important public purpose.

Answer 80

* tried together * right of confrontation prohibits use of confession * BUT can be admitted if: * all protions referring to other D are eliminated * confessing D takes stand and subjects themselves to cross * confession of nontestifying co-D is used to rebut D's claim that confession obtained coercively

Answer 81

State must prove guilt beyond a reasonable doubt cannot be shifted. States may impose burden on D to prove affirmative defenses

Answer 82

Judge must determine plea is voluntary and intelligent Must address D personally in open court and on the record to be sure that D knows and understands: * nature of the charge to which plea is offered and crucial elements of crime charged * maximum possible penalty and any mandatory minimum * D has right not to plead guilty and if they do they waive right to trial (infor can be communicted by D's lawyer) Remedy is withdrawl of plea and pleading anew

Answer 83

D has right to counsel during sentencing

Answer 84

only imposed under a statutory scheme that gives jury reasonable discretion, fullinfo concerning defendants and guidance in making decision. Statute cannot be vague and must allow sentencing body to consider all mitigating evidence

Answer 85

* prohibited under 8A if rape was neither intended to result in nor did result in death * prohibited unless felony murderer's participation was major and they acted with reckless indifference to the value of human life.

Answer 86

* Punishment proportionate to offense

Answer 87

4A protects citizens from unreasonable searches and seizures. 4A is applicable to states via the due process clause of the 14S

Answer 88

To assert 4A challenge must show government conduct: show police/government were involved in search or seizure.

Answer 89

Generally, not only must illegally obtained evidence be excluded but also all evidence obtained or derived from the exploitation of that evidence.

Answer 90

For a search and seizure to be valid, gov't msut have acted pursuant to valid warrant. If warrant is not valid, or if police did not have a warrant, all evidence will be deemed inadmissible unless exception to the warrant requirement applies.

Answer 91

5A, is applicable to the states via the due process clause of the 14 amendment guarantees a freedom against compelled self -incrimination. To protect this right the Supreme Court requires Police to inform detainees of their rights via Miranda warnings prior to any custodial interrogation. Statements obtained as a result of a custodial interrogation conducted without giving warning are generally inadmissible.

Answer 92

Determining whether custody exists is a two part process. 1. Court determines based on a totality of the circumstances whether a reasonable person would feel free to leave. AND 2. wehther the environment presents the same inherently coercive pressurs as the type of station house questioning at issue in Miranda.

Answer 93

Refer to both express questioning and words and actions on part of police officers that officers should know are reasonably likely to elicit an incriminating response.

Answer 94

For a self incriminated statement to be admissible under the Due Process Clause it must be voluntary as determined by the totality of the circumstances. Statement is involuntary if there is some official compulsion.

Answer 95

Under 5A Person may not be retried for same offense once jeoparty has attached. Jeoparty attaches in a jury trial at the empannelling and swearing in of the jury. Bench trials when first witness is sworn.

Answer 96

* D's first trial ends in hung jury * trial discontinued and d reprosecuted when there is manifest necessity to abort original trial or termination occurs at behest of D on any ground not constituting aquittal on the merits. * retry D who successfully appealed a conviction unless ground for reversal was insufficient evidence to support a guilty verdict. Retrial permitted when reversal based on weight rather than sufficiency of evidence BUT may not be retried for greater offense. * breach of plea bargain * D elects to have offenses tried separately * New evidence for greater offense if has not been discovered despite due diligence or has not occcured at time of prosecution for lesser offense(retrial for murder if victim dies after attachment for battery).

Answer 97

Does not apply (except for state and municipalities)

Answer 98

Only natural person and only if answer to question might incriminate them. Can be asserted when response might furnish link in the chain of evidence needed to prosecute them (can be claimed in civil proceedings to prevent waiver in criminal prosecutions) Criminal D has right not to take the witness stand at trial

Answer 99

only testimonial or communicative evidence - not real or physical evidence Testimonial = factual assertion or disclosure of info.

Answer 100

Prosecutor may not comment on D's silence after being arrested and receiving Miranda rights or D's failure to testify at trial (except if D is asserting not allowed to explain their side of the story). Pre miranda silence can be used against suspect in court. harmless error test applies