Criminal Law Flashcards
B punches A and A responds with stabbing B to death. A believed that B was going to attack her. What is the most serious crime A can be charged with?
Voluntary manslaughter.
A purchases a bomb to place in B’s car intending to injure B. C drives the car and is killed by the bomb. A is charged with murder. Result?
Guilty because A intended to seriously harm B.
Choose answer with intend rather than cause.
A and B rob a store. During a shootout B shoots the clerk. Is A guilt of felony murder if the jurisdiction follows the agency theory of felony murder?
Yes. A and B were agents.
A and B rob a store. The clerk pulls a gun on B and in defense B shoots the clerk. The clerk dies. Is A guilt of felony murder?
Yes. A and B not entitled to self defense.
A and B rob a store. During a shootout the police kill the clerk. Is A guilt of felony murder if the jurisdiction follows the agency theory of felony murder?
No. Killing must be done by the defendant’s agent.
A and B rob a store. During a shootout The police shoot B. Is A guilt of felony murder if the jurisdiction follows the agency theory of felony murder?
No. Murder cannot be based on death of co- felon.
Same result even if the agency theory was not followed.
A and B rob a store. During a shootout the a bystander kills the clerk. Is A guilt of felony murder if the jurisdiction follows the agency theory of felony murder?
No. Killing must be done by the defendant’s agent.
B commits crime and pleas insanity under M’Naughten rule. What entitles B to this defense?
B lacked at the time of the crime the ability to either know the wrongfulness of actions or did not understand nature and quality of actions.
Parent knows child is very sick but refuses medical care. Child dies. What crime did parent commit?
Involuntary manslaughter. Parent under a duty and omission to act is criminal negligence.
Parent knows child is very sick but refuses medical care. Child dies. Is the parent’s intent relevant to the crime that can be charged?
No. Parent will be charged with involuntary manslaughter. Intent is not relevant.
A asks B for a bottle of wine to show off. B agrees as long as A intends to return it. A intends to drink it. What crimes did A commit?
Larceny; larceny by trick; embezzlement
Larceny by trick
B buys a crowbar from a store owner who knows that B will use the crowbar to break into a storage unit. B asks A to help break into his storage because he lost the key. A helps, but while loading the items into the car the police show up. Who can be found guilty as an accomplice? A or store owner?
Neither. Store owner sold the crowbar in normal course of business.
Transferred intent does not apply to attempt.
A sets fire to own house. Wind blows flames onto neighbor home. Fire put out and only damage from smoke to neighbor home. A is charged with attempted arson. Arson is burning of the dwelling of your own home or another. Would A be guilty?
No. Not of attempted arson. No intend to burn the neighbor home.
An addict wanted to rob a store. He got an inoperative gun. He walked into the store but changed his mind. Upon leaving he dropped the gun. The owner saw this and realized it was a robbery. The police arrested the addict who was charged with burglary. Best defense?
Store was open. No breaking and entering.
Common law - not at night or a home.
A wanted to kill B. A drank heavily to get the courage. While drunk A went to kill B but the gun did not discharge. Most serious crime A can be charged with?
Attempted murder. Voluntary intoxication not a defense if intend was formed before drinking.
Under duress from A, B kills C. Can B use the defense of duress to a charge of murder?
No. Duress not a defense to murder. May reduce it to manslaughter.
Under duress from A, B harms C. Can B use the defense of duress to a charge of battery.
Yes valid defense.
During a grand jury, prosecution offers evidence obtained from a search by the police. Defense counsel files a motion to suppress the evidence. Result?
Denied. Exclusionary rule does not apply to grand juries.
B is at home when the police show up with a drug sniffing dog. B refuses to let the police in, who do not have a warrant. Dog alerts them to a suitcase in the home. B is charged with drug possession. Defense counsel files a motion to suppress the evidence. Result?
Granted. Reasonable expectation of privacy in one’s home even against smells.
A customer purchases an item at a store and hands the clerk a $20 bill. After accepting the bill, the clerk puts it in his pocket. Which crime could the clerk be convicted of?
Embezzlement. - Fraudulent conversion of personal property of another by one in lawful possession.
A and B rob a store. During a shootout B uses the clerk as a human shield, and the police kill the clerk and B. A is charged with felony murder of B and the clerk. The jurisdiction follows the agency theory of felony murder. A files a motion to dismiss ruling?
Granted to B’s death.
Denied to clerk’s death - human shield exception to agency theory of felony murder.
Can an owner of a hotel consent to a warrantless search of a guest’s room?
No. There is a reasonable expectation of privacy in hotel rooms - cannot consent.
During sentencing does a defendant have a right to counsel, even though hearsay evidence is admissible?
Yes, right to counsel still applies to sentencing.
Does a person commit larceny when borrowing an item and damages the item during use?
No, need intent to deprive.
Two neighbors wanted to send a message to a owner of a poorly maintained home. The neighbors contact an army explosive expert, who makes a lethal explosive device. One of the neighbors places the device on the owner’s door and the blast rocks the neighbor. The neighbors and expert are tried for attempted murder. Who is likely to be guilty of attempted murder?
None - under common law need specific intent.
If owner died, many a claim for manslaughter for reckless conduct.
Police arrive at home to search a teen’s room without a warrant. Mother consents to search. Police find a locked suitcase. Mother consents to search, and police break the lock to open it. Suitcase contained drugs and teen is arrested. Can teen suppress the drugs?
Yes, because the mother’s consent, while valid to the room, was not valid to the locked suitcase.
Mother has apparent authority to consent to searches of unlocked rooms and belongings.
Does a search incident to arrest allow an officer to search the passenger compartment of a vehicle?
No.
Exceptions: 1) person has not been secured or 2) officer reason to believe that the vehicle contains evidence of a crime for which the arrest was made.
Can an officer search the passenger compartment of a vehicle after an arrest if the officer has a reasonable fear of the driver who was arrested?
No. Search incident to arrest does not include the passenger compartment, unless exceptions apply. Trunks are beyond control of the passenger and are not included in search.
Defendant broken into a house and killed a victim. Defendant claims victim invited him and that defendant acted in self-defense. Judge instructed jury that they should find defendant guilty if they believe by a preponderance of evidence that victim invited defendant into house or that defendant shot the victim in self-defense. Defendant is convicted and appeals. Result?
Appeal court should reverse the jury instruction on the trespass, because this burden on the prosecution to prove beyond a reasonable doubt.
Appeal court should affirm the jury instruction on self-defense, because this burden is on defendant (which can be lowered)
Gangster threw a knife at a shopkeeper telling him it is his last chance to pay up or you are a dead man. As gangster was leaving, shopkeeper took a gun out and shot, but missed and killed a customer. Strongest argument that shopkeeper be convicted of only manslaughter?
Shopkeeper was reacting to a sufficient provocation to mitigate the homicide. Self-defense is not a strong argument, because threat had passed.
Is voluntary intoxication a defense to attempted rape?
Yes. attempt is a specific intent crime and voluntary intoxication is defense to attempt if defendant can show that he did not have the mens rea to commit the underlying crime.
Once a defense is raised, what is the burden on the parties in a criminal case?
Burden remains on prosecution to disprove every element of the defense beyond a reasonable doubt
- Exception is insanity (proven by defendant)
What are examples of movements that are not considered to be an act to give rise to criminal liability?
- sleep walking
- reflex
- blacks out while on meds (depends on knowledge/prior experience)
- someone else moves the defendant
When does a person have legal duty to act that can be a basis for criminal liability?
1) by statute
2) contract/agreement - implied
3) status (parent-child/spouse to spouse)
4) voluntary assumption of care
5) creation of peril
What are the specific intent crimes against the person?
assault
first-degree pre-mediated murder
What are the specific intent crimes against the property?
Larceny; embezzlement; false pretenses; robbery; forgery; burglary
Is attempted rape a general intent or specific intent crime?
Specific intent crime.
What are the general intent crimes?
1) battery
2) false imprisonment
3) kidnapping
4) rape
What are malice crimes?
Murder
Arson
What is required for a mistake of fact to a special intent crime?
Any honest mistake (reasonable or unreasonble) - will be a defense
Is a mistake to ownership a defense to burglary?
Yes, if mistake was honest - specific intent
unreasonable or reasonable
A _______ honest mistake will ___ a defense to any crime.
reasonable; be
A reasonable honest mistake will be a defense to any crime.
A _______ honest mistake will ___ a defense to only to specific intent crimes.
unreasonable; be
A unreasonable honest mistake will be a defense to only specific intent crime.
Is it a defense that defendant relied on advice from a private attorney to criminal liability?
No - mistake of law is not a defense
Alex stabs Victor in chest, causing a fatal wound that will kill Victor within minutes. Before Victor dies, Doug shoots Victor and kills Victor instantly. Is Doug an actual cause of Victor’s death for criminal liability?
Yes - actual causation - accelerating cause
Victor is robbed by Drake. Victor is still standing in the same spot and is struck by lighting. Is Drake the actual cause of Victor’s death?
Yes - actual cause, but not proximate cause (no foreseeability)
Vance is shot by Don, but wound is not fatal. During surgery, doctor commits negligence and Vance dies. Is Don the proximate cause of Vance’s death?
Yes - ordinary medical negligence is foreseeable
Under the common law, when must the death occur after the act?
Within a year-and-a-day rule
Modern law is anytime
Dave shoots at Alice with a gun, but Alice moves and the bullet kills George. What crimes can be charged?
Murder of George
Attempted murder of alice
Dave shoots at Alice with a gun, but Alice moves and the bullet wounds George. Can Dave be charged with attempted murder of George?
No.
No transferred intent for attempt crimes.
Define voluntary manslaughter.
An intentional killing committed in the heat of passion after adequate provocation (sudden and intense passion; no cooling off)
Don and Dave rob a bank and during the hold up, Don points a gun at a teller to demand money. Teller has a heart attack and later dies in hospital. What is the most serious crime that Dave can be charged with?
Felony murder - both Don and Dave.
Is false imprisonment or kidnapping a general intent crime?
Both are general intent crimes.
Common law definition of larceny.
Trespassory taking and carrying away of personal property of another, with intent to steal
Dillon picks up Jill’s cell phone, mistakenly believing that phone is his. Can Dillion be charged with larceny?
No - lacks intent to steal.
Dillon leases car to John for one-year. Two-month later, Dillon decides to take back the car without John’s permission. Can Dillion be charged with larceny?
Yes - larceny can be taking own’s property if someone else had valid possession
Dillon knowingly takes Jake’s phone without permission, but plans on returning it. After a month, Dillon decides to keep it. Can Dillon be charged with larceny?
Yes - continuing trespass.
Difference between false pretense and larceny?
False pretenses - defendant gets title by making an intentional false statement
Larceny - defendant gets possession
Daniella says to Victoria, “If you give me your designer purse, I will give you $400 cash tomorrow.” Daniella had no intention of paying the money. Is Daniella guilty of false pretenses?
No. false statement on future statements do not qualify.
Daniella says to Victoria, “If you give me your designer purse, I will give you $400 check.” Daniella knows check account is empty. Is Daniella guilty of false pretenses or larceny?
False pretenses.
Daniella says to Victoria, “If you lend me your designer purse, I will give you $400 check.” Daniella knows check account is empty. Is Daniella guilty of false pretenses?
No. Larceny by trick. Lending does not give title, only possession.
Is picking a pocket chargeable as a robbery?
No. Not sufficient force to constitute robbery.
Larceny only.
Peter mistakenly believes that Henry has his stolen laptop. Peter breaks into Henry’s house at night and takes the laptop. Is Peter guilty of burglary?
No. - Claim of right, no specific intent to commit felony.
Ike, armed with gun, breaks into friend’s house to steal the friend’s TV. Ike thinks the friend is out for the night. Friend is at home, and Ike punches friend and friend hits head and dies. What crimes can Ike be charged with?
Burglary, larceny, felony murder (battery merges)
Three friends agree to rob a teacher, but they are not going to use a gun. If one friend uses a gun, would all three be guilty of armed robbery?
Yes. It is foreseeable to use a gun during a robbery.
Under the common law, if the defendant was a principal and had a defense to the crime. The charges were dropped against the principal. Can an accomplice be charged?
No, not guilty. Principal needs to be found guilty.
Different under modern law (majority law).
Is voluntary intoxication a defense to malice crimes?
No. Defenses to specific intent crimes do not apply to malice crimes.
Vicarious liability for conspiracy for other crimes?
crimes that are in furtherance of the conspiracy’s objective and those crimes are foreseeable
Can a person be convicted of attempted negligent homicide?
No - logically impossible
Defendant is charged only with a completed crime. What crimes may the defendant be convicted of?
completed crime or attempt
Defendant is charged only with an attempt of a committed crime. What crimes may the defendant be convicted of?
attempt only
cannot be convicted of committed crime
Is factual or legal impossibility a defense to attempt?
Legal impossibility - defense to attempt (no crime)
Factual impossibility - not a defense to attempt
Is abandonment a defense to attempt under the common law?
Abandonment is not a defense.
Does larceny merge with robbery?
Yes - lesser included offense.
Does larceny merge with burglary?
No. Burglary requires any felony.
What inchoate crimes merge with the underlying offense?
Attempt merges
Solicitation merges
Conspiracy does not merge
Can solicitation merge with conspiracy?
Yes, conspiracy is the underlying crime
Can conspiracy merge with attempt?
No. Separate crimes. Conspiracy does not merge.
The irresistible impulse test as a defense to crime requires?
Defendant is entitled to acquittal only if, because of a mental illness, he was unable to control his actions or conform his conduct to the law
Which is the broader insanity defense?
Product test (Durham) - crime was the product of his mental illness
If a defendant raises an involuntary intoxication test, what else must the defendant meet?
Must meet the jurisdiction’s insanity test.
Standard is the same an insanity
When is non-deadly force a justification to crime?
reasonably necessary
to protect against an immediate use
of unlawful force against himself
When may an initial aggressor regain right to use deadly self-defense?
1) initial aggressor withdraws and communicates withdrawal to other person; or
2) victim suddenly escalates a nondeadly fight into a deadly fight
Deadly force to defend a dwelling may be used when?
1) tumultuous entry plus reasonable belief that force is necessary to prevent personal attack
2) reasonable belief force is necessary to prevent entry by a person who intents to commit a felony in the dwelling.
How is the reasonable belief for necessity to a defense to a crime?
Objective test for reasonable belief
Good faith belief is not sufficient
A statute makes it a felony for “maliciously causing serious injury to another.” Does there need to be evidence of an intent to injure anyone or a specific victim?
No. Malice mens rea is a reckless disregard of an obvious risk
A statute makes it a felony for “maliciously causing serious injury to another.” What is the mens rea?
Malice - defendant acted with a reckless disregard of an obvious or high risk that a particular harmful result would occur.
Father is terminally ill and pleas with children to out him out of his misery. A daughter who frequently heard her father’s pleas pulls out a gun and kills the father. What is the most serious crime?
First degree - premeditated and deliberate killing of another
No circumstances to reduce to voluntary manslaughter
Father is terminally ill and pleas with children to out him out of his misery. A daughter who frequently heard her father’s pleas pulls out a gun and kills the father. Is the most serious crime of the daughter manslaughter?
No. Nothing to reduce intent to kill to manslaughter
This would be first degree premeditated and deliberate killing.
A person intended to start a fire in trash can as a distraction to steal a watch. The person knew the sprinkler system would be activated to prevent the fire from spreading. The person starts the fire, but before he can grab the watch is caught. If tried for arson, what result?
Guilty. Arson is a malice crime - reckless disregard of known or obvious risk.
Statute would need to broaden arson to any building.
Police use stolen jewelry to catch a reputed fence. The fence took that jewelry. The fence is guilty of:
attempted receipt of stolen property
mistake to fact is not a defense
A suspect is informed of Miranda and requests an attorney. The police book the suspect and during the booking the suspect says “I did it.” Can the suspect suppress the statement?
No. All interrogation must stop once the attorney is requested. However, if suspect voluntary makes statements, then it not part of a custodial interrogation.
A drug dog alerts police to drugs coming from a suspect’s home. Suspect lets the police in. Police immediately arrest him and conduct a search of the house, including the closet. Drugs are found in the closet. Ruling on motion to suppress?
Granted, because suspect has a legitimate expectation of privacy in closet. - no warrant to search the house.
Allowing police in is not consent to search entire house.
Two men agree on scheme to persuade a neighbor girl, who is 12-years old, to have sex with them. Both men think that she is 18. Prior to having sex, the police arrest both men. They are charged with conspiracy to commit statutory rape. Result?
Not guilty of conspiracy, because they lack intent to commit statutory rape. Conspiracy to commit statutory rape requires knowledge of victim’s age even though the completed crime does not.
After killing a guard during a robbery, the robber was held up in a building. To escape a building a robbery changes clothes with a hostage, when the hostage leaves the building, the police mistake him for the robber and kill the hostage. The robber is caught and charged with murder. Does the robber have the mental state required for murder?
Yes, murder required malice of aforethought which can be satisfied by taken an action with extreme indifference and with an unjustifiably high risk
- not a felony murder because defendant actively in a position of danger
After killing a guard during a robbery, the robber was held up in a building. To escape a building a robbery changes clothes with a hostage, when the hostage leaves the building, the police mistake him for the robber and kill the hostage. The robber is caught and charged with murder. Is the robber only guilty if police were justified in using deadly force?
No. Robber had mental state for murder (awareness of an unjustifiably high risk to human life). Guilt does not depend on police’s justification for using deadly force
Peter fire an arrow at a ranger who yelled “stop shooting, stupid.” Peter’s aim was off and the ranger was shot and killed. Jury believes Peter that he did not intent to shoot ranger. What is the most serious crime that jury could reach?
Murder - reckless indifference to an unjustifiably high risk (depraved heart killing)
- This is not voluntary manslaughter because no adequate provocation
Involuntary manslaughter requires what?
Criminal negligence or recklessness - substantial deviation from the standard of care that a reasonable person would exercise under the circumstances
A statute has first degree for premeditated murder and second degree for all other murders. A thug shot a store owner in the knee for failing to pay for protection. Store owner bleeds to death due to a rare condition and dies. What is the most serious crime?
Second degree murder - intent to cause serious bodily harm
- not a felony murder because underlying felony (gun possession) is not independent of killing
Driver was passed by victim and driver was angry and repeatedly rammed the victim’s car. This cause the driver to lose control and victim’s car went off a hillside. Victim’s child was in the back seat and driver could not see the child. Driver is charged with attempted murder. Result?
Attempted murder - requires intent to commit the completed crime.
Not guilty of attempted murder.
Defendant is charged with reckless damage to property by driving a large piece of construction equipment into an apartment. Defendant was drunk at time of accident. Should defendant be convicted of reckless damage?
Yes, because defendant was drunk and acted recklessly by driving the piece of construction equipment.
- Voluntary intoxication is no defense to crimes involving recklessness
A programmer sent a virus by e-mail to business to disable the business’s servers for a short period of time. Programmer was aware that virus infrequently could cause widespread damage. The actual damage caused was over $10,000. Programmer is charged with “knowingly causing over $200 damages in property.” Result?
Not guilty of violating statute because programmer did not know that virus would cause that amount of damage.
State law prohibits sale of alcohol to minors. A 16-year old asks a patron to buy six-pack of beer and when the patron has the beer to the minor, both are caught and convicted. The 16-year old is being charged with aiding and abetting the patron in violation of the statute. Best defense?
Cannot be convicted because 16-year old is a member of the class that statute is designed to protect.
Husband asks an ex-convict to kill wife for $40,000. Ex-convict agrees, but during the act only wounds the wife and both the husband and ex-convict are caught. Ex-convict agrees to plead to aggravated assault for testimony against husband. What crimes can husband be convicted of?
1) attempted murder; and
2) conspiracy to commit murder.
Cannot be guilty of solicitation - solicitation merges with attempt
Can a defendant be properly convicted of solicitation of murder and attempted murder?
No - solicitation merges with attempt (or underlying offense)
Can a defendant be properly convicted of solicitation of murder and conspiracy murder?
No, solicitation merges with conspiracy.
Can a defendant be properly convicted of solicitation of murder, attempted murder, and conspiracy to commit murder?
attempted murder, and conspiracy to commit murder
- solicitation merges with attempted murder or conspiracy
Is withdrawal from conspiracy a defense?
Guilty of conspiracy
Underlying crime depends on whether the withdrawn was proper
At common law - withdrawal requires an affirmative act that notifies all members of the conspiracy
A thief sees a woman wearing expensive jewelry and who enters a hotel. The thief finds a bellhop’s uniform and knocks on hotel door of woman. Woman let thief in and thief did not see the jewelry, so thief took out a knife and demanded the whereabouts of the jewelry. The jewelry was in the hotel safe and thief made woman call front desk to bring up jewelry. Most serious crimes?
Burglary - hotel is ok, constructive breaking by fraud
Robbery - threat of force and intent to steal
no merger of burglary and robbery
For self-defense in response to a criminal charge requires what?
reasonably believe he is under unlawful attack and use a reasonable amount of force.
During a mock robbery at a bank, the security chief demanded that a particular teller “Put all the money in the bag or I will blow your head off.” Chief also demand’s the teller’s watch. Has the chief committed any crime?
No crime.
No robbery, larceny, or assault (these are specific intent crimes)
A person, who is drunk, intends to burn house down but mistakenly thinks a neighbor’s house is his house. The person starts the fire, but realizes it is not his house and put out the fire. The common law arson is unmodified. Can person be convicted of arson?
Yes, arson is a malice crime.
- intentionally burning the house of another or acting with reckless disregard.
- voluntary intoxication is not a defense to a malice crime
How can the mental state be established for malice?
1) intent or 2) recklessness
What type of mistake of fact is a defense to a crime involving a malice crime?
reasonable mistake.
A cashier accepted a $50 bill from a customer for payment of item. Cashier took the $50 at closing. At the second job, the cashier drove a truck filled with wine bottles. Cashier drank some wine from one of the bottle. What crimes?
Larceny of both $50 and wine.
These are not embezzlement.
Thief by employee may be either larceny or embezzlement, depending on what?
status of employee
- low level employee with a limited control time (larceny)
- high level employee with a longer control time (embezzlement)
For specific intent crimes, what types of mistakes may be defenses?
Mistake of facts are reasonable or unreasonable
Can a grand jury consider evidence that is obtained in violation of the fourth amendment?
Yes. Grand jury can consider any evidence.
If police use night googles that are not available to general public to search a defendant’s home during a flyover, will the evidence be suppressed if there was no warrant?
Yes - evidence suppressed because people have reasonable expectation of privacy in home. Only means that are available to the naked eye.
Where does a defendant typically have a reasonable expectation of privacy?
home, car, place of business, and personal effects.
Where does a defendant typically not have a reasonable expectation of privacy?
other person’s home, car, business of place, or personal effect
open fields
garbage placed for pick up
public area
Six exceptions to the warrant requirements include?
1) search incident to lawful arrest requires probable cause (search area within immediate control of defendant)
2) consent by defendant
3) automobile search (still need probable cause to search)
4) illegal item is in plain view (even if in the home)
5) stop and frisk (only reasonable suspicion)
6) true emergency/hot pursuit
When an arrest warrant needed?
When defendant is in his home.
When police may an arrest of a driver, where can police search?
An valid arrest, can search immediate area within the control of the driver. Includes entire passenger area of the car, but not trunk.
Once secured in police car - only search car when there is reason to believe that an instrument of crime is in car.
Can the police search the trunk of the car, without a warrant, during a valid arrest?
No - need a different exception. Automobile search.
Police obtain a valid arrest warrant for a man and go to his best friend’s house where is believed to be hiding. The police knock on the door and police barge in. The police do not find the man, but notice a bag of drugs. The friend is charged with drug possession, but moves to suppress evidence. Result?
Granted, because police were in the friend’s home without a valid search warrant.
Need a search warrant for a third party’s home where there is a valid search warrant
For the automobile expectation to a warrantless search what is required? May police also search the trunk?
Probably cause to believe that car contains contraband or evidence of crime
May search whatever in the may contain the contraband or evidence of crime, including trunk
What is the strongest exception to a warrantless search to allow police to search a trunk of a car?
- automobile search if they have probable cause to believe car contains contraband or evidence of crime
- search incident to lawful arrest is limited to immediate area and does not include trunk
If the stop and frisk is permitted, then can officer find other items that are not weapons?
Yes, if checking for weapons, can seize any item that is found. “Plain feel.”
Is the test regarding whether a person is free to leave from police question an objective or subjective?
objective test - is the person’s freedom being constrained in an significant way (handcuffs/police station).
How can involuntary confessions be used in a criminal case?
1) cannot be used in prosecutor’s case-in-chief
2) cannot be used to impeach defendant once defendant takes the stand
How can statements be used in violation of Miranda be used in a criminal case?
1) cannot use statement in case-in-chief
2) can be used a prior inconsistent statement to impeach defendant
If a police officer asks a person to remain on the scene of crime for a few question. Person believed that he could not leave until the questioning. Officer never gave Miranda warnings. Will statements of person be suppressed?
No - objective test to determine whether person in custody.
Not in custody - then no Miranda warnings are requirement.
Statements are allowed, motion to suppress is denied.
When does jeopardy attach?
1) When jury is empanelled and sworn, but may retried if a) first trial resulted in a hung jury, b) defendant appeals and makes request for a second trial, or c) mistrial that did not result from prosecutor’s misconduct
2) When a bench trial, when the witness is sworn
What is the requirement of same crime for double jeopardy?
two crimes do no constitute the same offense if each crime requires proof of an additional element, even though there is overlapping facts
Does a defendant have right to a jury trial of 12 in criminal cases?
No, must at least be six jurors. (if six person jury then it must be unanimous)
Serious offenses are those punishable by more than 6 months.
The right to counsel applies to misdemeanor trial only when a sentence of imprisonment is ______ imposed.
actually imposed. (including suspended sentence)
Can only be punished by fine when right to counsel is denied.
Defendant wanted to steal some papers from an associate, so he met her at her office. While there, defendant put a knockdrug in the associate’s drink and she passed out. He rummaged through the papers and stole the papers. The associate died from the drug. State defines first degree as premeditated, and second degree as all other common law murders. Most serious crime?
Second degree murder.
a) Felony murder rule, because a robbery occurred. Force was the knockdrug.
b) reckless indifference to an unjustifiable high risk
What is the model penal code test for insanity?
Defendant could not appreciate the criminality of the crime or he could not conform his conduct to the requirements of law
What insanity test is:
Defendant could not appreciate the criminality of the crime or he could not conform his conduct to the requirements of law
Model penal code.
What insanity test is:
Defendant could not appreciate that the crime was wrong or he could not understand the nature and quality of his actions
M’Naghten rule.
What insanity test is:
Defendant was unable to control himself or confirm his conduct to the law
Irresistible impulse test
A man decides to teach a woman a lesson and plans a fake robbery intending only to scare the woman. The man uses a toy gun and tells the woman to give him all of her money. Later he returns and tells her to be more careful walking home. What is the most serious crime?
Assault.
No permanent intent to deprive so not larceny or robbery.
A woman is given a coat by a friend. After a day the woman suspects that the coat was stolen from a wealthy person. The woman decides to keep the coat. What crimes has the woman committed?
No crime. Not larceny because the taking and intent to deprive was not concurrent.
Not liable as an accessory after the fact.
May a prosecutor comment on a defendant’s silence after receiving Miranda warnings where the victim makes accusations prior to a line-up?
No. violates privilege against self-incrimination.
A stagehand played a joke on an actor with a fake gun. However, the fake gun, unknown to stagehand, was a real gun that was loaded with bullets. While pretending to rob the actor, the stagehand said “Bang your dead.” The actor pretending to be shot, while laughing the stagehand pulled the trigger and killed the actor. What is the most serious crime?
No crime because stagehand believe it was fake gun.
Not murder (no malice aforethought)
Not voluntary manslaughter (not heat of passion)
Not involuntary manslaughter (criminal negligence)
Pedestrian was stopped at gunpoint by robber who demanded money. Pedestrian went for pocket, but then hit the robber over the head. Robber panicked and flew. The pedestrian was stunned, but quickly grab the gun and shot at the robber. However, pedestrian killed a bystander. Should the pedestrian be charged with voluntary manslaughter or murder?
Voluntary manslaughter because there is adequate provocation and acted quickly.
Lawyer was late to a meeting and was speeding through town. Lawyer drive through a red light and hit a number of people crossing the street. All the people were rushed the hospital and recovered. If the lawyer is charged with attempted murder, what is the result?
Acquitted, did not have intent to hit anyone.
Under common law, is an overt art required for conspiracy?
No.
Most states now require an overt act in furtherance of conspiracy
What does the Wharton Rule apply to?
common law conspiracy when the minimum number acts needed to commit the crime equals the number of conspirators.
Police pound on door and demanded entry. The accused refused entry, but the police force their way in and made an arrest without a warrant and basis on a tip. After receiving Miranda warning, accused told police about another crime and police acted on information. Can accuse later suppress statements at trial?
The best argument would be that the statements were the fruits of an unlawful arrest (no warrant and entered home without permission)
Is there a fifth amendment privilege against incriminating others in a criminal conspiracy?
No. Can consider silence when imposing the penalty.
Police saw an unarmed thief grab a coat and flee a store. While in pursuit, the thief ducked into an alley. The police saw movement behind some box and demanded that the thief come out or she will shoot. The thief did not come out, so the police shoot and killed an homeless lady. Police is charged with murder. Result?
Guilty, because police is not entitled to use deadly force unarmed escaping felons
exception: 1) deadly force is reasonably necessary to prevent escape and 2) felon threats death or serious bodily injury
When is a person, who is not a police officer, entitled to use deadly force to prevent a crime?
Only if crime is inherently dangerous, otherwise no privilege to use deadly force
Woman saw a suspected shoplifter and chased the shoplifter with a baseball bat. The woman was swinging at shoplifter, who suddenly pulled a knife and stabbed the woman. The woman later died and the shoplifter was charged with murder. Result?
Not guilty, because the man was acting in self-defense.
- no privilege by woman because was using deadly force to prevent shoplifting (not an inherently dangerous crime)
Husband believes the wife is having an affair. While walking the husband thinks he sees the other man and begins to attack a person. The person is not the other man. The husband is charged with battery. What result if the man honestly and reasonably believe the person was the other man?
Guilty. Battery is a general intent crime and a honest and reasonably mistake is not a defense.
Can the police search a car if the accused in secured in a squad car?
No, after arresting occupant vehicle can only search is arrestee is unsecured or police have reasonable belief that car contain evidence of a crime.
Does a guilty plea waive a Fourth Amendment claim of an unreasonable seizure in a subsequent civil action?
No. Guilty plea is not a waiver.
Does a defendant waive the right to remain silent before trial by testifying?
No, only waives right to be silent at trial.
Can a prosecutor comment on the defendant’s silence after the accused received a Miranda?
No, cannot comment on silence if exercised by defendant.
Can prosecutor comment on silence after accused remained silent after receiving Miranda warnings and accused is raising a self-defense claim?
No. Cannot comment on silence.
A jurisdiction defines battery as purposefully or knowingly causing serious bodily injury to another. Can an accused who lightly shoved the victim and due to the victim’s sensitivity conditions suffered harm be prosecuted for battery?
No. because defendant did not know that victim would be seriously injured.
Does not matter is act is purposeful, the state of mind must be purposeful.
Can a state retrial a defendant based on the same act when the first trial for manslaughter was reversed on procedural grounds and the second trial was for a more serious crime of murder?
No. Violates double jeopardy.
does not matter is convicted for same level of crime (manslaughter)
If a misdemeanor makes it a crime to willfully perform an act without strictly following procedures, is the crime a strict liability crime?
No. Willful is the mental state and reasonable mistakes are defenses.
Owner convey a deed to “my son for life, but if my sons dies survived by his spouse and children then to my son’s spouse for life with remainder in fee simple to my son’s children.” Son dies a year later survived by a spouse and two children, a girl and boy. The boy died two days after son, leaving a child as only heir. What are the interests?
Spouse - life estate
Girl - vested remainder
Child - vested remainder
Do the police have to have an arrest warrant to effect an arrest of an individual in their home?
Yes.
Limited exception for hot pursuit of fleeing felon.
When an arrest is unconstitutional what is the effect on all the items seized after the arrest?
excluded
exclusionary rule applies
Husband decided to kill his wife and need some poison. He asked a pharmacist to get him some poison. The pharmacist suspected the motive so he gave him an antibiotic instead. The husband gave the antibiotic to the wife who had an allergic reaction and died. What crime did the pharmacist commit?
No crime - no intent to invoke accomplice liability.
What is needed to pat down a suspect after stopping him?
reasonable suspicion support by articulable facts of criminal activity
Under common law burglary is the opening of an unlocked window considered a breaking?
Yes. This is a breaking.
Under common law burglary if a person enters another’s home at night to take money in satisfaction of debt is there a crime?
No crime because believed entitled to take the money as repayment of debt.
Under the common law, is it a defense to criminal charges to rely on an official interpretation of law by a public officer?
No - not a defense.
Could be defense under modern approaches.
Does an accused have a valid defense if the statute proscribing conduct was not published or made reasonably available prior to conduct?
Yes - negate intent
A state statute provides “Any person who appropriates to his own use property owned by the state shall be guilty of a crime.” What is the mental state?
Specific intent - larceny redefined.
This is not strict liability.
In defense to a specific intent crime must the mistake of fact be reasonable?
No. Needs to be honestly held (can be unreasonable or reasonable)
Is testimony that is obtained by a promise of immunity voluntary?
No. Definition coerced and therefore involuntary.
An inventory search of car requires what?
Police to impound car and conduct an administrative search of the items in the car.
