Criminal Law Flashcards

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1
Q

Fourth Amendment - Search and Seizure

A

The fourth amendment protects citizens from unreasonable search and seizure. For the defendant to assert a fourth amendment challenge he must demonstrate a reasonable expectation of privacy and that he had some ownership or possessory interest in the places searched or items seized. A search and seizure are valid only if the government acted pursuant to a valid warrant and evidence seized without a warrant or with an invalid warrant will be inadmissible.

Think government action, subjective expectation of privacy, objective societal expectation of privacy.

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2
Q

Fifth Amendment - Privilege against incriminating statements

A

The fifth amendment guarantees a freedom against compelled self-incrimination. Police officers must inform detainees of their Miranda rights before conducting a custodial interrogation. Statements obtained as a result of a custodial interrogation without Miranda warnings are generally inadmissible. A suspect is in custody when he is placed in a situation where a reasonable person would not feel free to leave and the environment is inherently coercive, resembling a station arrest. Interrogation refers not only to express questioning, but also to any words or actions on the part of the police officers designed to elicit an incriminating response. Miranda does not apply to voluntary statements. A waiver of Miranda rights must be knowing and voluntary. Any assertion of a right to remain silent must be explicit and ambiguous. A confession obtained in violation of Miranda, but that was otherwise voluntary, may be used to impeach the defendant’s testimony at trial.

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3
Q

Sixth Amendment - Confrontation clause

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The sixth amendment grants the defendant the right to confront witnesses. When two defendants are tried together and one has given a confession that implicates the other, the right of confrontation prohibits the use of that statement unless all portions referring to the other defendant can be eliminated, the confessing defendant takes the stand and is subject to cross examination, or the non testifying co-defendant’s confession is being used to rebut the defendant’s claim that the defendant’s confession was obtained coercively.

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4
Q

Sixth Amendment - Right to counsel

A

A suspect has a sixth amendment right to counsel at all critical stages of a criminal prosecution after judicial proceedings have begun. The right is violated when the police deliberately elicit an incriminating statement from a defendant without first obtaining a waiver.

Absent a waiver, the right is violated when an undisclosed, paid government informant is placed in the defendant’s cell, after the defendant has been indicted, and deliberately elicits statements from the defendant regarding the crime.

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5
Q

Common Law Crimes - Crimes against the person - homicide - murder

A

Murder is the unlawful killing of another human being with malice aforethought. Malice can be shown by any one of the following: intent to kill, intent to commit great bodily harm, reckless indifference to an unjustifiably high risk to human life, or intent to commit a felony. The defendant’s acts must proximately cause the victim’s death. Murder is in the first degree if the murder is committed with premeditation and deliberation. Premeditation means the act was committed after a period of reflection, which can be brief. Deliberation means it was committed cooly and dispassionately.

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6
Q

Common Law Crimes - Crimes agasint the person - voluntary manslaughter

A

Voluntary manslaughter is a killing with adequate provocation. The provocation must be of the type that would arouse sudden and intense passion in the mind of an ordinary person and cause them to lose self-control, and there must not be sufficient time to cool off.

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7
Q

Fourth Amendment - Search and seizure with warrant

A

A warrant requires probable cause, issuance by a neutral and detached magistrate, and proper execution.
Probable cause can be shown with reasonably reliable informants or with an affidavit that shows a reasonable belief that seizable evidence will be found on the person or premise.
Proper execution means that the warrant is executed without unreasonable delay and, with a few exceptions, the police knock and announce themselves.
A good faith exception applies to invalid warrants.

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8
Q

Fourth Amendment - Search and seizure without a warrant

A

The following are exceptions to the warrant requirement for search and seizure: search incident to a lawful arrest, stop and frisk, plain view, automobile, consent, or in exigent circumstances.

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9
Q

Fourth Amendment - Search and seizure without a warrant - search incident to a lawful arrest

A

Where there is a lawful arrest, police can search: persons and areas where there is a risk of weapons or evidence being destroyed, an automobile passenger compartment when an arrestee is unsecured and still able to gain access to it or police reasonably believe evidence for the arrest may be in it, or during an inventory search of the arrestee’s belongings or vehicle.

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10
Q

Fourth Amendment - Search and seizure without a warrant - stop and frisk

A

There is a stop and frisk exception to the warrant requirement.
Stops are permissible without probable cause if there is a reasonable suspicion of criminal activity based on articulable facts.
Officers can frisk outer clothing if there is reason to believe the detainee is armed.

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11
Q

Fourth Amendment - Search and seizure without a warrant - plain view

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There is an exception to the warrant requirement for items in plain view. For the plain view exception to apply, police must be legitimately on the premise, discover evidence or contraband in plain view, and have probable cause to believe the item is related to a crime.

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12
Q

Fourth Amendment - Search and seizure without a warrant - automobile

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Police may search an automobile when there is probable cause. They can search the whole vehicle and any container that might reasonably contain the items giving rise to the probable cause, including passengers’ belongings

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13
Q

Fourth Amendment - Search and seizure without a warrant - consent

A

Consent to search is an exception to the warrant requirement. Consent must be voluntary. Unless a co-occupant is present and objects, any one with apparent equal right to use or occupy the property has authority to give consent to a search.

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14
Q

Fourth Amendment - Search and seizure without a warrant - Exigent Circumstances

A

Exigent circumstances create and exception to the warrant requirement. This includes situations of hot pursuit, evanescent evidence, and emergencies affecting health or saftey

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15
Q

Fourth Amendment - Search of specific persons or places

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The reasonable expectation of privacy normally associated with 4th Amendment protections changes in some places.

Administrative searches are allowed where there is a general and uniform enforcement plan.

In public schools, there are reasonable grounds for a search when there is a moderate chance of finding evidence, a school measure is reasonably related to the search, and the search is not excessively intrusive.

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16
Q

Fourth Amendment - Double jeopardy

A

Attaches in a jury trial when the jury is empaneled and the first witness is sworn in. Exceptions to this rule are hung juries, necessity aborts the first trial, or if there is a successful appeal. Subsequent trial for same or lesser offense generally is barred.

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17
Q

Sixth Amendment - Right to a speedy trial

A

The right to a speedy trial attaches once the defendant is arrested or charged. Factors include the length of the delay, reason for the delay, whether the defendant asserted his right, and prejudice to the defendant.

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18
Q

Sixth Amendment - Right to a jury trial

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Applies to serious offenses where there is a threat of six months or more of imprisonment. Guilty pleas made must be voluntary and intelligent. The judge must make sure the defendant knows and understands the nature of the charge and its elements, the maximum penalty and any mandatory minimums, his right not to plead guilty and his right to trial.

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19
Q

Exclusionary Rule

A

The exclusionary rule makes evidence obtained in violation of the constitution inadmissible. This includes fruits of the poisonous tree. Exceptions to the exclusionary rule are: fruits obtain in violation of Miranda, independent sources, inevitable discovery, and violation of the knock and announce rule.

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20
Q

Eighth Amendment - Cruel and unusual punishment

A

Punishments must be proportional to the offense. The death penalty does not inherently violate the Eighth Amendment. The jury should be allowed to consider all mitigating circumstances. It can be imposed for felony murder if the defendant participated in a meaningful way and acted with reckless indifference.

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21
Q

Fourteenth Amendment - Due process

A

The burden of proof is on the prosecution to prove guilt beyond a reasonable doubt. States may impose a burden on the defendant to prove affirmative defenses.
Identification is unnecessarily suggestive and there is a substantial likelihood of misidentification.

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22
Q

Accomplice Liability - Parties

A

An accomplice is a person who acts with intent to commit the crime and aids, abets, or counsels in the commission of the crime; mere presence is not enough. An accomplice is liable for the crime itself and all foreseeable crimes.

An accessory after the fact is a person who acts with intent to help a felon escape or avoid arrest or trial and assists the felon knowing they committed the crime.They are not liable for the crimes committed by the principal. Accessories can be liable for the separate crime of obstructing justice.

23
Q

Accomplice Liability - Defenses

A

A accomplice or accessory may avoid prosecution by withdrawing from the act. If he only encouraged the crime, he must repudiate his encouragement. If he provided material support he must do everything possible to retrieve it. Alternatively he can notify the authorities to prevent the crime. This must be done before the chain of events leading to the commission of the crime becomes unstoppable. Look at conspiracy.

24
Q

Inchoate offenses - Solicitation

A

Solicitation occurs when a person asks or requests someone to commit a crime, with the intent that the crime be committed. If the party solicited actually commits the requested crime, the solicitor is also liable. Refusal by the solicited party is not a defense.

25
Q

Inchoate offenses - Conspiracy

A

Conspiracy is an intentional agreement with another made with the intent to accomplish some unlawful purpose. Each conspirator is liable for all crimes of other conspirators that were foreseeable and in furtherance of the conspiracy. Wharton’s rule says that if the target crime requires two participants, then no conspiracy can exist unless there are three participants. Withdrawal is a defense to conspiracy and the conspirator must communicate intent to withdraw to all other conspirators. They cannot withdraw from the liability of the conspiracy itself. Look at accomplice liability.

26
Q

Inchoate offenses - Attempt

A

An attempt requires the specific intent to commit the target crime and a substantial step in the direction of the commission of the crime. Abandonment is not a defense once the substantial step has been taken. When the crime is committed the attempt merges with the crime and is a defense to the charge of attempt. Factual impossibility is no defense if the facts were what the defendant thought they would be. Legal impossibility is a defense.

27
Q

Common law crimes - Crimes against the person - felony murder rule

A

Felony murder is a killing in the commission of, or attempt of, an inherently dangerous felony and is a first degree crime. A defendant is liable from the time he first attempts the crime until the time he reaches a point of safety. Inherently dangerous felonies include burglary, arson, rape, robbery, and kidnapping. The felony must be independent of the act that caused death.

28
Q

Common law crimes - Crimes against the person -Involuntary manslaughter

A

Involuntary manslaughter is a killing where there was intent to inflict slight bodily injury, or where there was criminal negligence. Criminal negligence is a gross deviation from the standard of care of a reasonable person.

29
Q

Common law crimes - Crimes against the person - assault

A

Assault is an attempted battery or the intentional creation of a reasonable apprehension of imminent bodily harm.

30
Q

Common law crimes - Crimes against the person - battery

A

Battery is the unlawful application of force causing harmful or offensive contact of another.

31
Q

Common law crimes - Crimes against the person - rape

A

Rape is the unlawful carnal knowledge of a woman by a man, not her husband, without her consent

32
Q

Common law crimes - Crimes against the person - kidnapping

A

Kidnapping is the unlawful confinement of a person that involves either some movement of the victim or concealment of the victim in a secret place

33
Q

Common law crimes - Crimes against the person - mayhem

A

Mayhem is the dismemberment or disablement of a body part

34
Q

Common law crimes - Crimes against personal property - larceny

A

The trespassory taking and carrying away of the personal property of another with the intent to permanently deprive.

35
Q

Common law crimes - Crimes against personal property - embezzlement

A

The fraudulent conversion of personal property of another, by a person in lawful possession of that property.

36
Q

Common law crimes - Crimes against personal property - false pretenses

A

Obtaining title to the personal property of another by an intentional statement of past or existing fact, with the intent to defraud the other.

37
Q

Common law crimes - Crimes against personal property - receiving stolen property

A

Receiving possession and control of stolen property known to have been obtained in a manner constituting a criminal offense, by another, with the intent to permanently deprive.

38
Q

Common law crimes - Crimes against personal property and person - robbery

A

The taking of personal property of another from the person’s person or presence by the use of force or fear with the intent to permanently deprive.

39
Q

Common law crimes - Crimes against personal property and person - extortion

A

Obtaining property by means of threats to do harm or to expose information. Involves a threat of future harm and need not be made in the victim’s presence.

40
Q

Common law crimes - Crimes against real property - burglary

A

The breaking and entering of a dwelling of another at night with the intent to commit a felony therein.

41
Q

Common law crimes - Crimes against real property - arson

A

The malicious burning of the dwelling of another.

42
Q

Common law crimes - Crimes against the public - Forgery

A

The making or altering of a writing with apparent legal significance making if false, with the intent to defraud.

43
Q

Defenses - Self defense

A

A defendant may use deadly force to protect against an imminent deadly attack. Deadly force must be reasonable and necessary. A defendant need not retreat before using deadly force, unless the defendant is the aggressor and safe retreat is available.

44
Q

Defenses - Defense of another

A

Defendants can use deadly force if a reasonable and necessary to defend another and it reasonably appears the victim had the right to use deadly force.

45
Q

Defenses - Defense of property

A

Non-deadly force may be used against unlawful entry of a dwelling and deadly force may be used if necessary for self defense or to prevent a felony. If only defending property, deadly force may not be used.

46
Q

Defenses - Insanity

A

Under the M’Naghten test, a defendant is insane, as a result of a mental defect, when he did not know the wrongfulness of his act or could not understand the nature and quality of his acts.
Under the irresistible impulse test, a defendant is insane as a result of a mental defect, was unable to control his conduct or conform his conduct to the law.

47
Q

Defenses - Intoxication

A

Voluntary intoxication occurs when one knowingly consumes an intoxicating substance and is not a defense to strict liability, general criminal intent, or malice.

Involuntary intoxication occurs where a defendant involuntarily or unknowingly consumes an intoxicating substance, and is a defense to all crimes if the intoxication renders the defendant “insane” under the applicable test.

48
Q

Defenses - Mistake

A

Mistake is a defense where there is a reasonable mistake of fact. This occurs when the defendant is ignorant of the fact that negates the required mental state for the crime.

Unreasonable mistakes of fact are where the defendant is mistaken or ignorant of the fact but the mistake is unreasonable under the circumstances. Unreasonable mistakes can only be a defense to specific intent crimes.

49
Q

Defenses - Entrapment

A

A defendant must show the criminal plan originated with the government and the defendant was not predisposed to commit the crime prior to the contact with the government.

50
Q

Defenses - Duress

A

A defendant’s crime, except an intentional homicide, is excused if committed under the threat of imminent death or great bodily harm.

51
Q

Defenses - Crime prevention

A

A police officer or private person may use deadly force if reasonably necessary to prevent the commission of a dangerous felony or to apprehend a dangerous felon.

52
Q

Fourth Amendment - Arrest

A

An arrest is a government seizure of a person and requires probable cause. A warrant is not required unless it is a home arrest. Investigatory detentions requires reasonable suspicion based on articulable facts. Roadblocks requires an neutral, articulable standard designed to address a particular automobile problem.

53
Q

Police checkpoints

A

Police may set up road blocks to stop cars without individualized suspicion that the drive has violated the law if: cars are stopped on a neutral, articulable standard, and the roadblock is designed to serve purposes closely related to a particular problem related to automobiles.

54
Q

Guilty Pleas

A

Prior to a guilty plea, the judge must determine that the plea was voluntary and intelligent. This is done by addressing the defendant in court and on the record. The judge must ensure that the defendant knows and understands the nature of the charge, the crucial elements of the charge, the maximum and minimum punishments, and that the defendant had the right to not plead guilty. The remedy is the right to withdraw a plea.