Criminal Law

Question 1

Common Law Murder

Answer 1

Murder is the unlawful killing of a human with malice aforethought

Question 2

Fourth Amendment

Answer 2

The 4A protects against unreasonable search and seizure where there is a government action and the property or place searched is one in which the defendant has a reasonable expectation of privacy.

Question 3

Government Conduct

Answer 3

Searches conducted by a private citizen are not protected by the 4A, there must be government action.

Question 4

Exclusionary Rule

Answer 4

The exclusionary rule is a judge-made rule that prohibits the prosecution from introducing evidence obtained in violation of a defendant’s 4A, 5A, and 6A rights.

Question 5

Warrant Requirement

Answer 5

A warrant is required for all searches and seizures unless an exception applies.

Question 6

Exceptions to the Warrant Requirement
(SPACES)

Answer 6

• Search Incident to Lawful Arrest
• Plain View
• Autombile Exception
• Consent Searches
• Exigence Circumstances
• Stop & Frisk

Question 7

Search Indicident To Lawful Arrest

Answer 7

When police have made a lawful arrest, they may search the area with the arrestee’s immediate control (wingspace) for safety.

Question 8

Fifth Amendment Right to Counsel

Answer 8

To invoke the 5th Amendment right to counsel, a defendant must make a specific, unambigious, statement asserting his desire to have counsel present. Once the right is invoked, all interrogations must stop until counsel is present.

Question 9

Waiver of Miranda Rights

Answer 9

A suspect may waive his Miranda rights, but such waiver is admissible only if it is made voluntarily, knowingly, and intelligently.

Once the suspect has invoked his rights, the police cannot re-Mirandize him and seek another interrogation unless there has been a sufficient break in custody.

Question 10

Sixth Amen. Right to Counsel

Answer 10

The 6A right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun. The right automatically attaches when the state initiates prosecution with an indictment or formal charges.

Question 11

Police Lineups

Answer 11

An identification from a lineup will be admissible only if it was:
1. Not impermissibly suggestive
2. Not a substantial likelihood of misidentification.

Question 12

Insanity Defense

Answer 12

M’Naghten: Defendant had a defect of reason due to mental disease that caused them to not (1) appreciate the wrongfulness of their action; or (2) understand the nature of their action.

Irresistibile Impulse: D had a defect of reason due to mental disease that caused them to not be able to conform their conduct to the law.

But-For Test: D had a defect of reason due to mental disease and **but-for **that disease would not have done the wrongful act.

MPC Test: M’Naghten + Irresistible Impulse

Question 13

Crime Against Persons (Non-Homicide)

Answer 13

Assault: Intentional or reckless act; that causes reasonable apprehension; of imminent harmful or offensive contact.

Battery: intentional or reckless act; that causes offensive or harmful contact

False imprisonment occurs where the defendant (1) intentionally causes the plaintiff to be (2) confined, restrained, or detained in a (3) bounded area with (4) no reasonable means of escape, and (5) the victim is aware

Kidnapping: (1) unlawful confinement; (2) of another; (3) without consent; and (4) coupled with hiding or moving

Question 14

Theft Crimes + Arson

BLRE (BLERRP)

Answer 14

Larceny: Larceny is the (1) trespassory (2) taking and (3) carrying away (4) of the person property of another (5) with the intent to permanently deprive the person of the property.

• Larceny by Trick occurs when the defendant tricks the other party and obtains possession through fraud or deceit.

Robbery: Larceny + Force/Intimidation

** False Pretenses: **False pretenses occurs when the defendant **knowingly **makes a false representation of material fact, which causes the victim to convey title to the misrepresenter who intends to defraud.

Embezzlement: (1) fradulent; (2) conversion; (3) of another’s property; (4) while the defendant had lawful possession

Receipt of Stolen Property: (1) receipt stolen property; (2) that they know is stolen; and (3) with intent to permenantly deprive.

Arson: (CL) Malicious burning of another’s dwelling. (Modern) Malicious burning of a dwelling/structure/property

Question 15

Inchoate Crimes

(CAS)

Answer 15

Conspiracy: A conspiracy is (1) an agreement (2) between two or more people (3) with the intent to commit an unlawful act. At common law, the conspiracy occurred the moment the agreement was made, but the majority of jurisdictions now require an over act, which can be as little as preparation.
* Liability: Co-conspirators liable for other (1) forseeable crimes; (2) if in furtherence of the crime.
* Withdrawal: Once an agrement is formed, can’t withdraw from conspiracy BUT can withdraw from future crimes if (1) they communicate to co-conspirators; and (2) have conforming conduct

Attempt: (1) specific intent to do crime; (2) takes a substantial step; (3) crime does not complete

Solicitation: (1) Request or encourage; (2) another to commit a crime; (3) intent that they do so

Merger: Solicitation and Attempt merge into crime if completed. Conspiracy does NOT

Question 16

Defenses (Non-Insanity)

SD MINE

Answer 16

Self-Defense: Reasonable Force
Defense of Others: Reasonable beleif not the aggressor and Reasonable Force

Duress:
Duress requires that a defendant had a (1) reasonable fear (2) of imminent (3) seriously bodily harm or death (4) to self or relative if they did not violate the law.

Intoxication:
Voluntary: negates Specific Intent Crimes (FIAT)
Involuntary: All crimes potentially

Mistake
Mistake of Fact & Legal Impossibility:
*Mistake of fact: *negates specific intent if honest and general intent if honest AND reasonable.
Legal impossibility is defense if action not illegal
Factual Mistake and Mistake of Law: Never defenses

Necessity:
Necessity may be a defense if the defendant reasonably believed that commission of the** crime** was necessary to avoid an imminent and greater injury to society

Entrapment:
Entrapment exists where a law enforcement official, or someone cooperating with her,** induces a** person to commit a crime that he wasn’t otherwise predisposed to commit.

Question 17

Accomplice Liability

Answer 17

Principal: The one who does the crime
Accomplice: An accomplice is one who **aids, abets, assists, or encourages **the carrying out of a crime and is present physically or constructively. The accomplice is liable for the crime he assisted or encouraged if the principal carried out the crime and for additional crimes committed by the principal in the course of committing the intended crime, so long as the crimes were foreseeable.

Accessory before the Fact: Accomplice who aids or abets the crime but isn’t at the crime scene
Accessory after the Fact: An accomplice who aids or abets after the crime, to help cover it up

**Withdrawal: **An accomplice can withdraw before the crime is committed, but if he already assisted he must render his prior assistance ineffective.

Question 18

Homicide

Answer 18

**Murder: ** At common law, murder is the unlawful killing of another human with malice aforethought. Malice

Malice can be established by:
* Intent to Kill
* Intent to Cause Grievous Bodily Harm
* Reckless indifference to the value of human life
* Intent to Commit Certain Dangerous Felonies
Felony Murder: The intent to commit certain dangerous felonies supplies the malice requirement for murder where death is **a natural and probable consequence (foreseeable) **of the defendant’s conduct and occurs during the commission of the felony, even if the death is accidental. Relevant felonies:
BARRK

Generally not liable for co-felon deaths, split for bystanders

First Degree: First degree murder is a premeditated and deliberate murder.

Manslaughter:
Voluntary: Murder can be reduced to voluntary
manslaughter if the defendant killed in the heat of passion and the following requirements are met:
(1) **Heat of Passion - **
(a) adequately provoked (can’t just be words);
(b) acted under heat of passion; and
(c) no time to cool off; OR

(2)** Imperfect self-defense** - Imperfect self-defense occurs when the person claiming self-defense honestly believes deadly force is requried to prevent death or serious bodily injury, but unjustifiably kills the attacked. Imperfect self-defense reduces the charge of murder to voluntary manslaughter.

Involuntary: Involuntary manslaughter is the unitentional killing of a human being due to grossly negligent behavior or the commission of misdemeanor.

Question 19

Fourth Amendment

Answer 19

Reasonable Expectation of Privacy: A person has a REP in a place where they have a privacy or possessory interest. A person generally does not have a REP in public or in places of less scrutiny (border or when being booked). However a person may have a REP if there is a private area in public (a phonebooth). A REP expands to a persons curtilage (like a porch) but not to open fields.

Furthermore, enhanced surveillance technology does not violate a REP unless it is not generally available to the public.

Stop/Public Arrest/Warrant
Arrest: Needs probable cause, unless public. If public, no warrant required if crime comitted in officer’s presence. If crime committed outside presence, can arrest w/o warrant if felony.

Checkpoint: Automobile checkpoints are allowed if they are non-random and related to an automotive interest (sobreiety). An officer is permitted to request someone to step outside

Traffic Violation: An officer may legally pull someone over if they have a reasonable suspicion of a traffic violation, even if they have a, non Constitutional violating, ulterior reason.

Warrant: If not a stop or public arrest, warrant needed. Warrant requires: (1) probable cause; (2) supported by oath or affidavit; (3) issued by detached and neutral magistrate; and (4) describes the person or place to be searched/seized with particularity

Warrant Exceptions
Exigent Circumstances: Imminent danger or destruction of evidence

Search Incident to Lawful Arrest: If lawful arrest, officer may search within wingspan of arrestee so long as they are in area. (i.e. can’t search passenger compartment of automobile if person in squad car already). This includes protective sweeps

Consent: self explanatory, can be withdrawn any time.

Hot Pursuit: Prevention of escapee of wrongdoer

Automobiles: Can search passenger compartment of car with lawful stop; if probable cause, can search entire car and any compartment where contraband could be stored. Can also fully search any car that is impounded following lawful arrest.

Plain View: if in plain view when (1) officer lawfully in place where they saw the contraband/evidence; and (2) incriminating nature of contraband/evidence is readily apparent.

Evidence from Admin. Search: Government investigators who are conducting a search as part of a regulatory scheme of a highly regulated industry need not abide by the typical warrant law.

Stop and Frisk
Stop: Stop a person with reasonable suspicion
Frisk: If person reasonably appears to be armed, can conduct a pat-down. If pat down reveals item that is readily apparent to be contraband/weapons, can remove.

Question 20

Exclusionary Rule + State Action + Incorporation

Answer 20

Incorporation: The amendments under the Bill of Rights are applied to the States under the Due Process Clause of the 14th Amendments.

State Action: To have a claim under the Constitutional, the State must have taken action by way of the legislature; a government actor; or a private actor at the government’s direction.

Exclusionary Rule: A violation of the 4th, 5th, or 6th Amendment results in the evidence gained being suppressed at trial.
Fruit of the Poisonous Tree
In addition to any evidence gained as the result of a Constitutional violation, any derivative evidence can also be suppressed.

Exclusionary Rule Exceptions
Isolated Negligence

Good Faith: If officer relies on facially valid warrant in good faith, no breach UNLESS method to obtain the warrant occured because of fraud, even if it wasn’t officer

Attenuation of the Circumstances: Lapse of time or other reason for arrest arises

Independent Source: Another source

Knock and Announce: Not a breach of exclusionary rule but does raise civil penalities for officer

Inevitable Disclosure: Evidence of unconstitutional search would have been found by constitutional search later. Like if person searches before warrant, finds something, and partner got warrant that arrived late.

Question 21

Fifth Amendment

Answer 21

Privilege Against Self Incrimination: Protects criminal defendant from compulsion to give testimony that could expose to criminal liability. Can’t invoke for others.

Miranda Rights: Requires that a arrestee be granted their Miranda rights prior to a custodial interrogation

Custodial: Where a reasonable person would not feel free to leave
Interrogation: Questions asked or conduct that are reasonably meant to elicit an incriminating response

• A defendant must know he is being interrogated for Miranda to apply.***

Miranda Waiver: Can waive Miranda by voluntary statements but must be (1) knowing; (2) voluntary; and (3) made intelligently; or if enough time has passed, officers can re-Miranda-ize and try again (must be break in custody)

Double Jeopardy: Attaches when jury impaneled; or if bench trial, when first witness on stand. Protects from being tried for same offense twice.

Identifications: The Due Process Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, prohibits a pretrial identification process that is (1) unnecessarily suggestive and where there is a (2) substantial likelihood of misidentification based on the totality of the circumstances.

Question 22

Sixth Amendment

Answer 22

Right to a Speedy Trial

Right to Counsel: Right to Counsel attaches when first charged or arraigned. Counsel must be present at all stages of critical proceedings, does not apply to photo identifications or physical evidence, but basically everything else. Only applies for the specific offense! (so if someone chargred with murder but then if you ask about a different burglarly, that’s ok)

Right to Effective Counsel:
D must prove that counsels performance was not as a reasonably competent attorney; and that it prejudiced defendant so much that results would have been different.
Defendant has right to self-represent
Defendant can substitute counsel but balances interests of courts, other party, and defendant

Confrontation Clause: Right to confront adverse witnesses. Prosecution can’t admit testimonial statements by a 3rd person unless declarant can be cross-examined when statement was made or in court. Does not apply to non-testimonial statements like emergency calls.

Joint Defendants: Joint defendants have issues if one of them confesses. Can’t be admitted unless it can be redacted or confessor takes the stand.
If prejudicial, will sever but generally likes to do at same time.

Question 23

8th Amendment

Answer 23

Bail: Shall not be excessive or unduly high
No cruel or unusual punishment
Death penalty: No DP for persons who are mentally retarded; was minor at time of crime; or if co-felon committed a murder

Question 24

Plea Bargains

Answer 24

Defendant can settle a plea bargain if (1) competent; (2) understands the charge; and (3) and understands the consequences of the plea.
Must be made (1) voluntarily; and (2) knowingly