Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

MBE > Criminal Law > Flashcards

Criminal Law Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Murder

A

Common law: the killing of another human being with malice aforethought

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Malice aforethought

A

committed with (1) evil-intent (malice), and (2) premeditation (aforethought)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Malice aforethought - 3 possible mindsets

A

(1) Intent to kill; (2) Intent to inflict serious bodily harm; (3) reckless indifference to human life;
OR if you: Kill someone during the commission of an inherently dangerous felony

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Prosecutor must prove 3 things for first-degree murder

A

1) Intent (including transferred intent) 2) a cool mind (no rage, fear, or passion), 3) premeditation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Rage, fear, or passion can downgrade first degree murder to second degree murder (manslaughter)

A

Examples someone had a “hot mind” instead of a “cool mind” are:
1) man who kills wife’s lover immediately after he finds him in bed with her
2) long-term victim of domestic abuse killing their abuser
3) victim of battery who uses disproportionate force & goes way too hard & kills their attacker
4) someone who mistakenly believes they are being attacked & then ends up killing someone else
5) Someone being taunted or threatened who loses control & kills someone else

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Transferred Intent will satisfy the intent element for first-degree murder

A

If you try to kill someone by shooting them & kill someone else…
liable for murder of the person you ACTUALLY shot AND
attempted murder of the original victim you tried to shoot

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Capital Murder (killing a police officer, or killing someone while in jail, or brutal murders such as torture)

A

punishable by the death penalty

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Defense of voluntary intoxication

A

can only reduce a first-degree murder to DEPRAVED HEART murder (a murder committed with recklessness rather than intent), NOT manslaughter

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Voluntary manslaughter

A

Intentional killing committed in the HEAT OF PASSION - happens when someone is provoked.

Passion. Provocation. No cool-down time

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What is NOT adequate provocation?

A

Making fun of someone
Pointing at them
Low level arguments
Words are NOT ENOUGH

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Imperfect self-defense

A

qualifies as “provocation” and downgrades murder from first-degree to voluntary manslaughter (no cool down time)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Intent to commit great bodily harm WITH a deadly weapon

A

First-degree murder

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Depraved heart killing (second-degree murder)

A

Defendant is so outright reckless that his conduct creates an unjustifiably high risk to human life

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Anytime someone is “randomly firing a gun” into a crowd or near people or directly above someone’s head (or anything highly reckless)

A

Depraved heart murder

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Involuntary manslaughter

A

criminal negligence causing an accidental or unintended death (killing with no malice aforethought) - look for falling asleep while driving or texting while driving

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Involuntary manslaughter

A

unintentional killings caused through simple negligence, NOT extreme recklessness

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

If someone has a legal duty to act, and they do not act, and this results in death
(ex. you have a legal duty to render assistance after you hit someone, parents have a duty to their child, properly feed, etc)

A

Involuntary manslaughter (being an idiot)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Depraved heart murder requires

A

an extreme indifference to the value of human life

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Gross negligence voluntary manslaughter requires

A

only a wanton and reckless disregard for human life

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

BARRK felonies

A

Burglar, Arson, Rape, Robbery, Kidnapping

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Felony Murder (first-degree murder)

A

killing someone (even accidentally) while in the process OR IMMEDIATELY AFTER an underlying BARRK felony

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Felony murder is not restricted to just foreseeable deaths

A

as long as the death is a direct result of the felony - you will still be charged with felony murder

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Felony murder and co-felon gets killed?

A

if the police kill the co-felon, or a potential victim kills the co-felon - you are NOT liable for felony murder.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What if a victim or a police officer kills an innocent party on accident during a BARRK felony?

A

In jurisdictions that follow the proximate cause theory: you will be guilty if an innocent party kills another innocent party on accident in the course of a BARRK felony because you set the killing into motion

In jurisdictions that follow the agency rule, you will NOT be guilty of felony murder because the police and bystanders were not agents of your felony or helping you in anyw ay

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

When a death occurs accidentally during the commission of: (1) a non-BARRK felony or; (2) a misdemeanor (punishable by less than a year in jail)

A

Involuntary manslaughter via the misdemeanor-manslaughter doctrine

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

If a problem on the MBE mentions a misdemeanor, the most serious murder that a person can be charged with is:

A

involuntary MANSLAUGHTER

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Involuntary manslaughter in 4 situations

A

(1) criminal negligence; (2) intent to inflict slight injury; (3) misdemeanor manslaughter; or (4) failure to act

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Larceny

A

The unlawful taking or carrying away of personal property of another
WITHOUT consent
with the intent to permanently deprive AT THE TIME YOU TOOK IT

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

NOT larceny

A

the person took something IN THE BELIEF that it was theirs
NO INTENT to deprive anyone of it.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Continuing trespass larceny

A

No intent to permanently deprive at the time of the taking, but developed it later on

(an innocent taker who turns evil later on)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

If you take something with the intent to permanently deprive, you start crying, and give it back - it doesn’t matter

A

You still intended to deprive them at the time of taking - STILL larceny

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Embezzlement - stealing stuff you legally have possession of

A

Don’t need legal title to the goods or money to embezzle, just lawful physical possession

Look for questions talking about an accountant stealing stuff, or a trustee

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Larceny by Trick

A

Lying to someone to get physical possession of their shit

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

False pretenses

A

Lying/tricking someone to get legal title of property (ACTUAL legal title and legal ownership)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Claim of right

A

Defense to false pretenses

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

Extortion

A

obtaining property through spoken or written threat to do future harm to someone (rather than immediate harm like robbery)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

Receiving stolen goods

A

receiving personal property of another KNOWING it is stolen (can be actual or constructive knowledge)

Defendant receives stolen property
A thief actually steals the property from its true owner
Defendant knows the property is stolen
Defendant intends to permanently deprive the owner of the property
NO cops involved

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

if a police officer tries to run a sting operation on you and sells you “stolen goods” which were recovered by police, you can still be convicted of

A

Attempting to receive stolen goods

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

Robbery (involves force or fear, larceny does not)

A

ANY amount of force will do which is GREATER than what you need to take or carry away the property
Fear - the threat of imminent harm, not future harm

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

Can’t be charged with BOTH robbery and larceny

A

Larceny is a lesser included offense of robbery

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

Common law burglary

A

Breaking into a place
where people sleep
AT night
with intent
to commit a felony inside

Abandoned structure can’t be burglarized

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

MPC burglary

A

Breaking and entering into any protected structure at any time of the day with intent to commit a felony inside

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

Burglary
Breaking - need to actually break in or enlarge an opening

A

can’t just walk through an open door or window

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

Constructive breaking

A

enter via force, fraud, or intimidation, the breaking element will be satisfied without actually enlarging any openings

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

Burglary
Entering - any small part of your body will constitute entry, even a single finger

A

Includes an extension of your body enter a building, like a stick you are holding onto

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

Burglary is specific intent crime

A

being drunk and legal impossibility - are BOTH DEFENSES

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

Battery

A

application of force to another that results in physical harm or would offend a reasonable persons sense of dignity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

Defenses to battery

A

Consent
Self-defense and defense of others
Preventing a crime from being committed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

Assault

A

Putting someone under a reasonable apprehension of contact
Words alone are insufficient

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

Aggravated assault

A

assault with an aggravating factor
(intent to rape, intent to main, intent to kill or assault an elderly or child victim)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
50
Q

Rape

A

Intercourse is (1) forcible, or (2) while the victim is asleep or unconscious, or (3) upon a victim who cannot give consent, (4) by means of deception (such as pretending to be someone you are not) the defendant will be liable for rape

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
51
Q

Kidnapping

A

unlawful confinement where you either (1) make a victim move somewhere, or (2) conceal them in a secret place

Remember: Kidnapping requires movement, false imprisonment does not

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
52
Q

The kidnapper MUST:

A

Move the victim a SUBSTANTIAL distance from where they are found; or
Confine the victim for a SUBSTANTIAL period of time in a secret place

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
53
Q

Common law arson

A

the malicious burning of the dwelling house of another
have to act with INTENT or with RECKLESS DISREGARD

-does not have to be a dwelling, can just be any old building
-can be guilty if you burn your own building and you are the only one that lives there

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
54
Q

Possession

A

having control for a long enough to actually terminate possession
Constructive possession - contraband is not in your actual possession but it is close enough for you to exercise control over it

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
55
Q

Forgery

A

(1) falsifying a document of legal significance, with (2) the intent to defraud

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
56
Q

Inchoate crimes

A

crimes that are committed before (or are a substantial step towards) the main offense

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
57
Q

Attempt

A

(1) Defendant specifically intended to commit the crime
(2) Took a substantial step beyond mere preparation to commit the crime

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
58
Q

Common law ATTEMPT
(Substantial Step) – dangerous proximity test

A

Completed every step of the crime but get stopped short before it is completed.

Final Act Before Success (dangerously close)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
59
Q

Modern/MPC ATTEMPT
(Substantial Step)

A

Doesn’t have to be the “final step” before completion of the crime (like it does in common law)

Big Step Indicating Intent (maybe not dangerously close, but still showing the world you were trying to do this crime)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
60
Q

Can you withdraw or “abandon” a completed attempt?

A

HELL NO

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
61
Q

Are Factual impossibility and Legal impossibility a defense to attempt?

A

Factual impossibility is NOT a defense to attempt
Legal impossibility IS a defense to attempt

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
62
Q

Conspiracy

A

Agreement between two or more people to commit a crime

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
63
Q

Common Law Conspiracy

A

(1) Agreement with one of more persons
(2) Intent to agree
(3) Intent to pursue an unlawful objective

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
64
Q

Conspiracy - Agreement element

A

Common law - bilateral approach - requires an ACTUAL agreement between two people

MPC - unilateral approach -
only needs one person

Undercover cop and a defendant cannot agree to conspire - this would not be conspiracy under common law, ONLY MPC

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
65
Q

MPC (modern) Conspiracy

A

Agreement + ANY overt act
Cops allowed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
66
Q

Common law Conspiracy

A

Intent to pursue unlawful objective/NO COPS

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
67
Q

Every member of the conspiracy is liable for the acts of the other members as long as they are

A

(1) foreseeable, and
(2) in furtherance of the conspiracy

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
68
Q

Withdrawal from Conspiracy under Common Law

A

Can’t withdraw from the conspiracy and escape total liability. CAN withdraw from later crimes if you clearly tell everyone.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
69
Q

MPC/Modern trend Conspiracy

A

CAN withdrawal from the conspiracy AND escape total liability before overt act but it’s hard b/c the overt preparation act can be so small and doesn’t even necessarily have to be criminal.
CAN withdrawal from LATER CRIMES

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
70
Q

Solitication

A

ASKING someone else to commit a crime, and intending that they carry it out.
specific intent crime so there must be ACTUAL intent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
71
Q

Solicitation AND attempt merge

A

YES - you can’t be charged with attempted murder AND murder if the guy dies

72
Q

Conspiracy AND solicitation merge

A

if charged with conspiracy & solicitation, just be charged with conspiracy since solicitation will fall off and merge

73
Q

Attempt AND conspiracy DO NOT merge

A
74
Q

Conspiracy and the completed crime DO NOT MERGE

A

you can be charged with conspiracy to murder….and murder itself AT THE SAME TIME

75
Q

Accomplice

A

someone who actively aids or encourages another person in the commission of a crime

76
Q

Accomplice must act with intent to:

A

(1) help the primary party; and
(2) with the intent that the primary party actually COMMIT the offense

77
Q

mens rea at common law

A

specific intent (larceny, battery, etc)
malice
general intent

78
Q

Specific intent crimes have two special defenses not available in other crimes

A

voluntary intoxication
mistake of fact (whether reasonable or unreasonable)

79
Q

Involuntary intoxication

A

Defense to any crime, even strict liability crimes

80
Q

Reasonable mistake

A

if the facts were as you believed them to be, the conduct would have been lawful

81
Q

Malice

A

reckless disregard of an obvious or high risk that the particular harmful result will occur

82
Q

Reasonable mistake it also a defense to malice crimes.

A

In order to prove malice you need to prove the mens rea of recklessness or a “wicked” state of mind

83
Q

general intent crimes

A

all you had to intend was to do the actual crime itself, but not intend any third thing happening

84
Q

general intent crimes only allow REASONABLE mistakes

A

actus reus + only moral culpability (only reasonable allowed)

85
Q

specific intent crimes

A

actus reus + specific motive (reasonable + unreasonable)

86
Q

Examples of strict liability crimes

A

selling alcohol to a minor
statutory rape
“regulation” type crime like littering or violations of the Food & Drug Act

87
Q

ATTEMPTED strict liability crimes

A

if you didn’t INTEND to try to commit the strict liability crime, you will not be liable.
if you commit the crime, mindset is not relevant

88
Q

Defenses to Specific Intent Crimes

A

Mistake (reasonable or unreasonable)
Intoxication (voluntary or involuntary)

89
Q

Defenses to Malice/General Intent Crimes

A

ONLY reasonable mistake
Involuntary intoxication

90
Q

Defenses to Strict Liability Crimes

A

No defenses besides proving the statute is unconstitutional (IMPOSSIBLE)

91
Q

MPC has no specific or general intent crimes

A

Purposefully - simply means you did the crime INTENTIONALLY

Knowingly - had knowledge of a particular fact or were aware of a high probability of existence of the fact

Recklessly - gross and knowing deviation from the standard of care, like negligence

Negligently - you should have known you were deviating from the standard of care and that certain result would occur, but you didn’t know

92
Q

Insanity

A

if the defendant can show they were insane at the time the crime was committed, they can be found NOT guilty by reason of insanity

93
Q

Insanity - Majority Rule: M’Naghten Rule

A

Severe Mental Illness +
Not understanding what you are doing is wrong

(mental illness at issue must be severe - such as schizophrenia or hallucinations)

DO NOT KNOW TEST

94
Q

Insanity MPC: Irresistible impulse test, only a few states follow

A

Even though the defendant knows the act is wrong, his mental defect gives him an overwhelming urge to commit the crime anyway

95
Q

Durham Test (one state follows)

A

Very friendly to defendants
As long as your conduct was the product of a mental disease or defect at the time of the crime, you escape liability via insanity

96
Q

Insanity test - MPC (hybrid model)

A

As a result of a mental disease, the defendant lacked the capacity to either (1) appreciate the criminal nature of his conduct, or (2) conform his conduct to the requirements of the law.

97
Q

Main difference between MPC & M’Naghten Test

A

whether you understood it was wrong or not
MPC - even if you know it is wrong, you may escape
M’Naghten - had to NOT KNOW it was wrong

98
Q

Look for answers like “An expert testified that the man knew his conduct was wrong, but…”

A

They can be found not guilty under the MPC if they KNEW it was wrong!

99
Q

Deadly Force: Majority Approach

A

You can only use deadly force when you believe deadly force is about to be used on you or a third party.
No duty to retreat

100
Q

Deadly Force: Minority Approach

A

You can use deadly force when you believe deadly force is about to be used on you or a third party AND
you have tried to retreat first if possible

101
Q

Never a duty to retreat for those who are

A

In their own homes
are police officers; and
are being raped or robbed

102
Q

may use reasonable non-deadly force to resist a police office when:

A

1) arrest is unlawful
2) arrest is lawful but police are using excessive force

103
Q

Duress

A

can’t be a future threat - must be now

104
Q

Duress

A

There is an imminent chance of serious bodily harm being threatened against the defendant’s family or loved ones
Defendant is REQUIRED to commit the crime to avoid the harm
Threat is reasonable and IMMEDIATE

105
Q

You can be punished by both the state and federal government for the same act

A

This DOES NOT trigger double jeopardy

106
Q

Entrapment

A

when a defendant is induced or coerced into committing a crime by a government official that they would not normally have committed otherwise

107
Q

Arrest is made when a person is placed under physical restraint or submits to the authority of the government official making the arrest

A

Police must have PC

108
Q

Arrest warrant to enter home

A

must have reasonable belief you are home

109
Q

What if not in your OWN home, but someone else’s house?

A

Police would need:
an arrest warrant for YOU
search warrant for YOUR FRIEND’S house where you are hiding

110
Q

Protective sweeps are made when agents/officers execute a search warrant or an arrest warrant inside the residence

A

The trick is they have to look where people would hide - they can’t use this as a way to expand the scope of the warrant

111
Q

Terry stop - brief investigatory stop IF

A

reasonable suspicion supported by articulable facts of criminal activity based on totality of circumstances (no vague suspicion or hunch)

lower standard than PC

112
Q

Terry stop

A

police can briefly pet the OUTSIDE OF YOUR CLOTHING to check for weapons - plain feel test

113
Q

To challenge a search, there must be government conduct. This can be:

A

(1) a cop (on-duty or off-duty), or
(2) a private person being forced to do something by a cop

114
Q

when PC exists to search the whole car,

A

closed containers of the passenger can be searched too,

115
Q

Garbage in the alley can be searched

A

Garbage in your curtilage (like porch) cannot be searched

116
Q

If the warrant is invalid, but the police acted in good faith and thought it was valid

A

it will still probably be upheld.

117
Q

Knock & announce rule

A

police have to knock & announce their presence before forcing entry into a home, then wait a REASONABLE time before barging in
UNLESS they fear evidence is being destroyed or
they think it would be too dangerous to announce their presence

118
Q

Warrant Exception: Search incident to lawful arrest

A

when someone gets arrested the police get a “free search”
They can search the defendant AND their immediate surroundings to ensure police safety (and to prevent evidence from being destroyed) AT THE TIME OF THE ARREST

119
Q

Search incident to lawful arrest

A

It allows for a search of BOTH open and closed spaces

120
Q

Gant Rule

A

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.

121
Q

If someone is arrested in a car, and the police are doing a SILA

A

it does NOT include the trunk (because when you get arrested the trunk isn’t in your wingspan)

122
Q

if a police officer stops and wishes to seize and search your cell phone, they need a warrant

A

Warrantless search on a cell phone violates a person’s 4th Amendment Rights

123
Q

Automobile exception

A

ANYTHING that can MOVE (automobile, mobile-home, or plane) - can be searched if there is probable cause
They can search the whole car, including the trunk!

124
Q

Plain View

A

If an officer is in the house due to consent or some other reason, but then the officer starts manipulating the environment - this is not allowed

125
Q

Plain View

A

Is the officer at a lawful vantage point to observe the contraband?
Does the officer have lawful physical access to the cars?
Is there PC to believe they are stolen just by looking at them?

126
Q

If two or more people have an equal right to use a certain property

A

Anyone can consent UNLESS one of the other occupants is present and objects

127
Q

When co-occupants with access to the whole place are NOT present, one occupant can allow a search of the whole space

A

When co-occupants with access to the whole place ARE present and objecting, one objection can stop the whole search

128
Q

Roommates do not have access to the WHOLE place

A

Limited access RESTRICTS consent to a search

You can’t authorize consent to search your roommates room.

129
Q

Hot pursuit

A

when the police are in hot pursuit of a fleeing felon, they can bust in and search the WHOLE premise that they run into -

130
Q

Evanescent Evidence (disappearing evidence)

A

If evidence can disappear = police can usually bust in without a warrant or take the physical evidence at scene

131
Q

Exigent circumstances/community caretaking function

A

emergencies which require the police to take immediate action to protect people

132
Q

Inventory Search

A

if your car gets impounded due to a crime, the cops can search the entire vehicle.
This is normal police procedure.
They can search closed containers as well

133
Q

Standard to search in a public school is

A

reasonable suspicion

134
Q

Cannot strip search you in a school unless there is some IMMEDIATE, serious even about to go down - like a school shooting

A

but can pat down/frisk with reasonable suspicion

135
Q

ALL Wire taps require warrants

A

only granted by warrant through a judge only under highly specific circumstances for limited amounts of time

136
Q

Independent source doctrine

A

allows for evidence to be admitted if it was obtained from a separate, independent investigation that is completely untainted by the illegal conduct

137
Q

Three arguments to attempt to save poisonous tree evidence

A

Inevitable discovery - police would have discovered the same evidence despite the illegal means they originally used to get it

Intervening act of free will

Illegally seized evidence can be used to IMPEACH the credibility of the defendant’s testimony

138
Q

Prosecutor cannot comment on your post-Miranda silence

A

if you are out of custody and not charged, the can comment on your silence then

139
Q

There is no constitutional right to remain silent in civil cases

A
140
Q

You can be compelled to testify if

A

you are granted immunity

141
Q

Testimonial statements

A

statements that the prosecution can use against you that help establish the elements of the crime

142
Q

Miranda warnings

A

used to protect the 5th Amendment constitutional rights of a suspect in custody against self-incrimination and involuntary confessions

143
Q

in custody

A

1) would a reasonable person in the same situation feel free to leave or stop questioning?
2) if they are not in a police station does the environment present the same coercive pressure as a police station?

144
Q

During Miranda Reading: “I might want a lawyer.”

A

Cops can ask a clarifying question

145
Q

During interrogation itself (pre-waiver of Miranda)

A

Cops can ignore

146
Q

Post-waiver of Miranda

A

Cops can ignore

147
Q

If defendant has been in custody for 2 weeks

A

on the 15th day, they must give Miranda AGAIN and can once again do a custodial interrogation

148
Q

Statements taken in violation of Miranda can still be used for

A

impeachment

149
Q

if Miranda warnings have been given and the case hasn’t officially started

A

the police do not have to:
tell you that your lawyer is waiting outside
tell you that your family got you a lawyer
they can keep questioning and this does not violate miranda

150
Q

Lineup

A

6th Amendment right to counsel at all post-charge “adversarial proceedings”

151
Q

Right to counsel at line up?

A

Only after formal charges have been filed
“impermissibly suggestive”

152
Q

Right to counsel for a show up?

A

only applies after a formal charge has been filed, but not before

153
Q

Right to counsel

A

only in felony cases or misdemeanor cases where you could go to jail

No right to counsel during fingerprints, blood samples, at parole or probation revocation hearings

154
Q

Fifth Amendment right to remain silent

A

non-offense specific

155
Q

Sixth Amendment right to counsel

A

offense specific to the actual charge you are facing

156
Q

Sneak in an undercover officer after you get charged

A

violates the sixth amendment right to counsel

Fifth Amendment only applies when you actually KNOW you are talking to an undercover officer

157
Q

Ineffective assistance of counsel

A

Must show 2 things:
1) the representation fell below an objective standard of reasonableness
2) the client was actually PREJUDICED by the ineffective representation (there is a reasonable probability the outcome would have been DIFFERENT if the lawyer hadn’t messed up)

158
Q

Excessive bail is a violation of the 8th Amendment against cruel & unusual punishment.

A

BUT the 8th Amendment doesn’t REQUIRE BAIL

159
Q

Grand jury proceedings

A

Witness has no right to a lawyer
Defendant has no right to be present
Defendant has no right to call witnesses

Only right is against compelled self-incrimination, which can also be taken away by giving the defendant or witness derivative use immunity or transactional immunity

160
Q

Right to a jury trial in FELONY CASES

A

where the maximum authorized sentence EXCEEDS 6 months

161
Q

Criminal case needs AT LEAST 6 jurors and the verdict must be unanimous

A

unlimited strikes for cause
peremptory strikes for ANY reason besides race or gender

162
Q

if the defendant is shown to not be competent to stand trial, the burden is on the ___

A

prosecutor to show that the defendant is indeed competent (by preponderance of the evidence standard)

163
Q

Right to confront witnesses

A

if there are codefendants, may have to sever into two trials

164
Q

Co-conspirator statement against a defendant will not be admissible if they are both at trial at the same time UNLESS

A

the co-conspirator testifies and is subject to cross

165
Q

Double Jeopardy ATTACHMENT

A

Jury trial - when the jury is sworn in
Bench trial - when the first witness is sworn in

166
Q

Double jeopardy does not apply:

A

When the jury is unable to agree on a verdict (hung jury)
Retrial after a successful appeal (b/c its a new trial)
Mistrial for manifest necessity

167
Q

Double jeopardy attaches:

A

After Convictions
After you are Acquitted
After mistrials due to Prosecutorial misconduct

CAP

168
Q

Examples of manifest necessity

A

Two jurors disappeared randomly
Defense refers to inadmissible details in opening statement
Witness was hospitalized for a month
Defense counsel disbarred

All manifest necessity - new trial

169
Q

Ex-post facto

A

can’t change the status of conduct retroactively

If it was legal back then, you can’t make it illegal now and go backwards & charge

170
Q

8th Amendment prevents cruel & unusual punishment

A

Conditions of prison OR punishment itself is very harsh

171
Q

Death penalty is not allowed for:

A

Mentally insane
Someone who is mentally disabled
Person under 18 when the crime was committed (life without possibility of parole is also not allowed for minors)

172
Q

Defendant proves affirmative defenses by

A

PREPONDERANCE of the evidence

173
Q

If there is a legal error at trial, you have to OBJECT to it or preserve it on appeal.

A

If you do not, it is WAIVED and you can’t bring it up on appeal - UNLESS we have plain error

174
Q

Plain error - no normal mistake

Plain error = substantial rights

A

Mistake is so large, so egregious, and so plainly evident on the face of the record itself, that any judge should have seen it affected the litigant’s rights

175
Q

Harmless error

A

If an error happened (like the judge should’ve denied an objection but instead granted it) but it was harmless beyond a reasonable doubt and did not prejudice the defendant - the conviction will not be overturned.

176
Q

Non-harmless error

A

Error was actually objected to originally and is also very serious
This will result in automatic reversal of the conviction on appeal

177
Q

Non-harmless error

A

Not allowing someone to have a lawyer at trial
Not allowing someone to consult with their lawyer at trial
Having an instruction on reasonable doubt that confuses the jurors
Racial discrimination in the jury selection process
Not allowing someone to go pro se

178
Q
A

MBE (9 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions