Criminal Law

Question 1

Conspiracy

Answer 1

Requires an
1) agreement, 
2) between 2 or more persons,
3) intent to commit an unlawful act
majority of jurisdictions req. unlawful act

Question 2

Co-conspirator Liability

Answer 2

Liable if

1) foreseeable
2) in furtherance of the crime

Question 3

Accomplice Liability

Answer 3

Liable for principle’s crime(s) if

1) aids, abets, assists, encourages the carrying out of a crime
2) does not actually commit crime
3) foreseeable criminal act

Question 4

Murder

Answer 4

Murder is the unlawful killing of another with malice aforethought

Question 5

Malice can be proven by …4

Answer 5

1) An intent to kill (desire or knowledge to a substantial certainty)
2) An intent to commit grievous bodily harm
3) A reckless disregard for the value of human life
4) The commission of a dangerous, enumerated felony such as burglary, assault, robbery, rape, or kidnapping (Felony Murder Rule)

Question 6

Felony Murder Rule 3

Answer 6

Under the FMR, malice is implied:

1) if a death was a natural and probable consequence of D’s conduct, even if accidental
2) death occurred during the commission of the felony
3) the death was independent of the felony

No liability for co-felons who are killed by third parties
Split juris on death of bystander by third party

Question 7

1st v 2nd Degree Murder

Answer 7

Any murder committed with premeditation (reflected on the idea of killing) and deliberation (dispassionate) or FMR is 1st degree murder, all others are 2nd degree.

Question 8

Voluntary Manslaughter 4

Answer 8

Murder can be reduced to voluntary manslaughter if D is killed in the heat of passion when

1) acted in response to a provocation that would cause a reasonable person to lose control
2) D was, in fact, provoked
3) insufficient time to cool off between provocation and killing
4) D did not, in fact, cool off

Question 9

Defenses 7

S Oa P I N M I Eye

Answer 9

Self - can respond to unlawful force if force is equivalent
Others - one reasonably believes that 3rd party would be justified in using using equivalent force
Property- reasonable, never deadly
Intoxication - vol. to specific intent, invol. to all crimes
Necessity - d must reasonably believe that commission of the crime was necessary to avoid an imminent and greater injury to society
Mistake - fact, may negate specific intent or malice and general intent if mistake was reasonable
Impossibility - fact, not a defense; legal, arises when def, thinks it is a crime but is not.
Entrapment - occurs when law enforcement induces the def. to commit a crime he would not have normally committed.

Question 10

4th Amendment

Answer 10

protects individuals against unreasonable search and seizures

Question 11

Arrest

Answer 11

Warrant - an arrest warrant must be issued on probable cause, which is a reasonable belief that the person violated the law. Not necessary unless person is at home

Question 12

Routine Stop 3

Answer 12

A routine stop by the government is typically permitted in these situations:
Automobile - requires a reasonable suspicion of wrongdoing based on an objective standard
Checkpoint - the police may set up fixed checkpoints to test for compliance with the laws relating to driving or if special law enforcement needs are involved, such as immigration
Stop and Frisk - police may also stop and frisk individuals without arresting them

Question 13

Search and seizure of property

Answer 13

Any search or seizure of property is unreasonable when there is:
Government Action - there must be govt action for 4th amendment protections to apply
Reasonable Expectations of Privacy - must have a reasonable expectation of privacy in the property or place being searched or seized for the 4th amendment to apply
Warrant is Required - where a person has a reasonable expectation of privacy, the police need a search warrant based on probable cause to search and seize property.

Question 14

Warrant Requirements 4

Answer 14

Requires

1) based on probable cause - established where it is reasonable that the items to be searched are connected with criminal activities and will be found in the place searched
2) issued by a neutral magistrate
3) Description- premises to be searched and items to be seized
4) Knock and Announce, when no response the police may enter

Question 15

Warrant Exceptions

S P A C E S

Answer 15

SILA - search incident to lawful arrest, may search wingspan, immediate control, protective sweep of house, car and compartments if reasonable to believe that arrestee might access the vehicle or there is evidence of the offense of the warrant
Plain View - contraband in plain sight and the officers have a right to be there
Automobile - if probable cause, may search car and compartments
Consent - if person voluntarily consents
Exigent Circumstances - probable cause and prevent destruction, imminent injury, hot pursuit
Stop and Frisk - have a reasonable suspicion of criminal activity or involvement that is supported by articulable facts. May also briefly detain and frisk for weapons but this is for officer safety and not to search for contraband

Question 16

Fifth Amendment

M R. R double D

Answer 16

Miranda
Right to Counsel
Right Against Self Incrimination
Double jeopardy
Due Process

Question 17

Miranda

Answer 17

When a suspect is taken into custody, and is under interrogation his confession is only admissible if he was read his Miranda rights, right to remain silent, anything used against him, right to have atty present and if he cannot afford, one will be appointed to him
Custodial - reasonable person not free to leave
Interrogation - question or comment intended to elicit an incriminating response
Suspect must be aware, do not apply to public safety concerns, cannot re-Mirandize for 14 days, waiver requires knowing, intelligent, and voluntary

Question 18

Self Incrimination

Answer 18

5th protects from testimonial evidence that could expose him to criminal liability. Physical evidence (photos, line ups, blood) is not testimonial

Question 19

Double Jeopardy

Answer 19

Can not be tried for the same offense twice. Jeopardy attaches when the jury has been impaneled and sworn for a jury trial or when the first witness has been sworn for a bench trial.

Question 20

Due Process

Answer 20

requires that confessions are voluntary (totality of circumstances)
identifications are not unnecessarily suggestive and so conducive to mistaken identification that it is unfair to the defendant

Question 21

effective counsel (3)

Answer 21

a suspect against whom formal criminal charges have been initiated has a right to counsel for any post charge stages of line-up or sentencing.
att sub - may sub att. if court finds it si in the interests of justice. factors include timeliness, interests of the court and conflicts
ineffective - def must show did not behave as reas. competent attn and prejudiced def but/for incompetence result would have been different

Question 22

confront (3)

Answer 22

compel testimony -

Question 23

confront (3)

Answer 23

compel testimony - issuing subpeonas and cross-ex
testimonial statements - no 3rd party statements against the def. unless available for cross-ex at the time of hearing or trial. nontestimonial if responding to an emergency like a 911 call
joint co-defendants -
confession of one implicates the confrontation clause and the confession will be inadmissible against the co-defendant unless portions are redacted or co-def subjects themselves to cross-ex
severance of trial - courts prefer one trial for judicial economy but will sever if joint trial results in serious prejudice to one def.

Question 24

jury 5

Answer 24

criminal defendants have a right to a jury trial for serious offenses where the potential sentencing is ,more than 6 months
1. waiver permitted
2. number of jury - 6 is req’d but must be unanimous also in federal court. in state a 12 person can convict with a substantial majority
3. impartial with a fair cross-section of the community
not fair cross section if def can show:
group alleged to be excluded is a distinctive group
jury selection grp does not represent fairly the number of such persons
due to systematic exclusion in jury selection process
4. voir dire - each side has unlimited strikes for cause and 3 strikes for any reason (no gender or race)
5. discrimination not permitted - ep of 14th prevents intentionally discriminating against a distinctive group

Question 25

Speedy Trial 4

Answer 25

balance of factors:
length of delay
reason for delay
prejudice to def
time and manner in which right is asserted by def.

prelim hearing if prob cause is not established within 30 days

Question 26

Exclusionary Rule

s f a a

Answer 26

judge made law that prevents the prosecution from presenting any evidence obtained in violation of the defendant’s 4th, 5th, or 6th amendment rights. standing is required.

Question 27

fruit of the poisonous tree

Answer 27

evidence wrongfully obtained is inadmissible as fruit of the poisonous tree unless:
independent source - evidence could have been obtained from a source other than the illegal source
inevitable discovery - would have inevitably been discovered through other police techniques
purged taint - sufficient number of additional factors between the original illegality and the final discovery that the taint has been purged

Question 28

allowed for impeachment

Answer 28

illegally obtained evidence may still be used to impeach def, defense witnesses or grand jury hearings

Question 29

allowed in civil or parole

Answer 29

illegally obtained evidence is allowed in civil or parole hearings

Question 30

good faith warrant exception

Answer 30

when a police officer acts in reasonable reliance on a facially valid search warrant issued by a proper magistrate and the warrant is ultimately found to be unsupported by probable cause, the exclusionary rule does not apply BUT exception does not apply if affiant knew the info for PC was false and the judge reliance on the info was not reasonable

Question 31

voluntary confession

Answer 31

under the 14th amendment, confessions must be made voluntarily without police coercion given the totality of the circumstances with the court considering the susceptibility of the suspect, environment and tactics used BUT»» nongovernmental coercion ok, mentally ill is fine,
confession as a result of coercion can be used for NOTHING unlike Miranda which can be used for impeachment

Question 32

due process in identification

Answer 32

due process rights are violated if an identification of the defendant based on the totality of the circumstances is:
unnecessarily suggestive AND
so conducive to mistakes it is unfair

Question 33

plea bargain

Answer 33

a def can settle by plea bargain to receive a lesser charge if he is competent, understands the charge, and understands the consequence of the plea.
must be made voluntarily and intelligently in open court
prosecutor can not agree and the judge can deny if he thinks def is innocent

Question 34

8th amendment

b c&P

Answer 34

bail - bail is not required under the 8th but if offered must not be excessive. factors:
seriousness of offense
weight of evidence
financial abilities
character of def

Question 35

cruel and unusual

Answer 35

8th prohibits cruel and unusual punishment by preventing the penalty imposed on the defendant from being grossly disproportionate to the seriousness of crime

Question 36

crimes against person

a b m k r

Answer 36

assault - attempt to commit a battery or the intent to place another in fear of a battery
battery - intentional or reckless causing of a bodily injury or offensive touching to another
mayhem - permanent dismemberment or disabling of another
kidnapping - unlawful confinement of another involving movement or concealment in a secret place
rape - unlawful sexual intercourse with a female, not one’s wife, without her consent

Question 37

theft crimes

l e f t r e x t b r a

Answer 37

larceny - trespassory taking and carrying away of the property of another with the intent to permanently deprive
embezzlement -fraudulent conversion of personal property of another by one who is already in lawful possession of the property
false pretenses - defendant makes a knowing misrep of a past or present fact which causes the person to whom it was made to convey title
theft - illegal taking of another’s property
robbery - larceny by force or placing in fear of force
extortion - threat of a future harm to deprive an owner of his property
burglary- the breaking and entering of the dwelling home of another in the nighttime in order to commit a felony therein
receipt of stolen property- knowingly receives, conceals or disposes of stolen property
arson - malicious burning of the dwelling of another

Question 38

Solicitation

Answer 38

when one encourages or requests another to commit a crime with the intent that the person solicited does commit the crime even if person solicited does nothing