Criminal Law Flashcards
1
Q
what is a member of conspiracy liable for ?
A
conspiracy of that crime, and all crimes co-conspirators committed that were foreseeable or in furtherance of the agreed criminal act.
2
Q
Common law state of minds
A
- purposely => with conscious intent to cause the result
- knowingly => with knowledge that his conduct will necessarily or very likely cause the result as to the harmful result.
3
Q
possession of contraband statutes
A
criminal statutes that penalize the possession of contraband generally require only that the defendant have control of the item for a long enough period to have had an opportunity to terminate the possession. Thus, the defendant need not have moved or handled the box.
4
Q
knowledge may be inferred…
A
when the defendant is aware of a high probability of the true nature of the item and deliberately avoids learning the truth.
5
Q
larceny by trick v. false pretenses
A
False Pretenses
(i) obtaining title
(ii) to the property of another
(iii) by an intentional (or, in some states, knowing) false statement of past or existing fact;
(iv) with intent to defraud the other.
Larceny by trick
- same but about obtaining possession, NOT TITLE
6
Q
Can you commit larceny of your own property?
A
YES if another person, such as a bailee, has a superior right to possession of the property at that time.
ex: take your stuff for repair, promise to pay when come to pick up - then have someone pick up without paying.
7
Q
Larceny / Burglary / Felony Murder
A
Felony murder and burglary require a felony to be committed:
if fact pattern where D goes to steal at night, can be
=> larceny - need INTENT TO PERMANENTLY deprive of property without permission and transport it.
> no person in the house
=> robbery - taking personal property FROM V’s PRESENCE by FORCE/THREAT with intent to premaritally deprive
> person in the house
if any met - any killing occurs felony murder of 1st degree.
Note:
No felony murder if enter another’s house at night to take something, WITH NO INTENT TO KEEP, just borrowing without permission.
8
Q
First degree murder
A
> Premeditated deliberate
> Felony murder - during enumerated felony.
9
Q
If the pre-existing condition of the victim causes the death, eggshell v?
A
Any preexisting conditions that make a person more susceptible to death are essentially disregarded. The defendant “takes the victim as he finds him.”
10
Q
can you kill a person who its about to die?
A
law forbids shortening a life even for one second, so it is not a defense that medical science had given the victim up for dead. If the defendant’s action in any way shortened the victim’s life, he can be held liable for murder.
11
Q
Is there embezzlement if D gives back what was taken?
A
If the defendant intended to restore the exact property taken, it is NOT embezzlement.
But if he intended to restore similar or substantially identical property, it is embezzlement, EVEN IF it was money that was initially taken and other money-of identical value-that he intended to return.
12
Q
if you borrow something and misrepresent what will you be using it for and then use it in a way to cause permanent damage.
A
This can be larceny by trick, cuz you know at the time of the taking that you will be using it in a way that involved a substantial risk of damage or loss. This suffices as intent to permanently deprive
13
Q
if search that was the basis of the probable cause for search of his house was ILLEGAL, can D suppress that evidence .
A
NO, not if D has no expectation privacy at the place where first search occurred. If he does not (someone else’s house), then cannot suppress stuff found from search of his house because that search has a proper warrant based on probable cause.
14
Q
does taking photos of a person’s home’s interior without warrant constitute a search?
A
Yes, high expiation of privacy at home.
obtaining information about the interior of a home through sense-enhancing technology that could not otherwise have been obtained without a physical intrusion constitutes a violation of the Fourth Amendment
15
Q
Does police need a warrant to investigate a murder scene ?
A
Yes, there is no exception! if the owner of where murder happen objects, police must get a warrant.
16
Q
When will a court find a special need justifying a warrantless drug test?
A
- public school students extracurricular activities
- Drug interdiction agents who have access to large quantities of illegal drugs.
- Railroad employees involved in accidents.
17
Q
When will a court NOT find a special need justifying a warrantless drug test?
A
warrantless drug testing of politicians running for public office.
18
Q
Plain View exception elements
A
(1) must be legitimately on the premises where the item is found
(2) the item must be evidence, contraband, or a fruit or instrumentality of a crime
(3) the item must be in plain view and
(4) it must be immediately apparent (i.e., probable cause) that the item is evidence, contraband, or a fruit or instrumentality of a crime.
19
Q
Does officer need to give a Miranda to question stopped person?
A
Generally NO! Routine traffic stops are considered noncustodial in nature because they are brief and temporary, and, therefore, Miranda warnings are not required to ask questions of detained motorists.
20
Q
Can officer search car at stop and frisk?
A
> under the stop and frisk exception, an officer may order the occupant of a vehicle out of the car and search the passenger compartment if the officer reasonably believes that the occupant may be dangerous.
21
Q
What if police execute an arrest warrant at a third party home BUT have no search warrant to third party home?
A
If the police do execute an arrest warrant at the home of a third party without obtaining a search warrant for the home, the arrest is still valid BUT evidence of any crime found in the home cannot be used against the owner of the home because it is the fruit of an unconstitutional search.
22
Q
When is a person under seizure?
A
For purposes of the Fourth Amendment, a seizure occurs when a reasonable person would believe that he is not free to leave. The courts consider the totality of the circumstances in making this determination.
> seizure requires a physical application of force (e.g., handcuffing or otherwise subduing a person) or submission to an officer’s show of force.
> when suspect runs, there must be some application of force and submission to the show of force, which would require, at the least, stopping in response to the officer’s order.
> Police officers may ask people for permission to search and for identification; such requests do not involve the physical application of force or submission to a show of force.
23
Q
Do police have to knock and announce when executing a search warrant?
A
Generally yes, bot not categorically always.
NO announcement needs to be made if the police reasonably suspect that knocking and announcing would be dangerous or futile or inhibit the investigation.
24
Q
Is consent voluntary if consent giver did not know that he had a choice to not consent?
A
It may be! Knowledge of the right to withhold consent, while a factor to be considered, is NOT a prerequisite to establishing a voluntary consent. In the instant case, there are no facts that indicate that the police put any undue pressure on the defendant to consent to the search.
Although it is a factor to be considered in determining whether the consent was voluntary, the defendant’s subjective mistake about being able to withhold consent would probably not, by itself, be sufficient to deem the consent involuntary.
25
If police has a warrant to search a place, can they search people in that space?
NO: A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant. (think bars, restaurants)
=> just because you happen to be somewhere that is getting searched, you do not give up your 4th Am. right to be free from unreasonable search.
=> note: can still get searched, if police has a probable cause on you and get a warrant .
=> if police find a person at the searched place whom they had a probable cause to arrest => can search him as incidence to lawful arrest.
26
Does a college student have expectation of privacy in dorm lounge?
ONLY limited expectation of privacy in a dormitory's lounge
- also check if this is a private school (cannot assert rifer cuz no state action if unauthorized college police made the arrest)
27
what type of threat is enough for robbery?
> he force or threats may be used either to gain possession of the property or to retain possession immediately AFTER such possession has been accomplished.
> Force must be sufficient to overcome the victim's resistance.
> If threats of immediate death or serious physical injury are used, they must be threats to the victim, a member of her family, a relative, or a person in her presence at the time.
> A threat to do damage to property will not suffice-with the exception of a threat to destroy the victim's dwelling house.
28
What rights derive from Fifth Amendment?
"life, liberty, property cannot be take without due process"
> Double Jeopardy
> Self-Incrimination
(incorporated through 14th Am.)
29
What rights derive from Sixth Amendment?
```
> Right to counsel
> Confrontation clause
> Right to impartial jury
> Right to speedy trial
> Right to be informed of accusations against him
```
(incorporated through 14th Am.)
30
Using threat or force after taking property
- may be robbery if using it to keep others from physically taking the robbed stuff away
- is NOT robbery if you deny robbery, robbery is completed and enter into conflict with robbed about whether you robbed her.
31
> If person is being illegally searched or arrested
> is read Miranda
> volunteered incriminating stuff
> not admissible as a fruit of illegal arrest
32
If co-defendant gives testimony that implicates other codefendant
==> Confrontation clause problem: co-D confession cannot be admitted because as a D, co-D cannot be forced to testify, thus, D will have no opportunity to cross his implicator if co-D refused to testify
33
When is co-D confession admissible against D?
(i) all portions referring to the other defendant can be eliminated (so that there is no indication of that defendant's involvement) OR
(ii) the confessing defendant takes the stand and subjects himself to cross-examination regarding the truth or falsity of the statement, OR
(iii) the confession of the non-testifying co-defendant is being used to rebut the defendant's claim that his confession was obtained coercively, and the JURY IS INSTRUCTED OF THIS PURPOSE - IF limiting instruction => do not need cross or eliminating statements about D (i),(ii).
Even if the co-defendant denies ever having made the confession, the opportunity at trial to cross-examine the co-defendant satisfies the Confrontation Clause.
34
What can you use Miranda violation testimony in trial for?
to impeach testifying D at trial ONLY IF D's statements were voluntary.
35
Do juveniles have to be given Miranda warnings?
YES, not discretionary.
36
How to decide if 6th Am. right to speedy trial has been violated?
totality of the circumstances TEST, factors:
(i) length of the delay,
(ii) reason for the delay,
(iii) whether the defendant asserted his right, and
(iv) prejudice to the defendant.
Remedy for violation of speedy trial right => dismissal with prejudice.
NOT entitled to speedy trial relief for the period between the dismissal of charges and later refiling.
37
when does 6th Am. right to counsel start to apply
ONLY after adversary judicial proceedings have begun (e.g., formal charges have been filed).
NO 6th Am. violation when gov. puts an informant in D's cell even after formal charges filed. There is a violation only if the informant does something designed to elicit incriminating remarks.
38
Does D have to know that he is speaking to a public police or police agent for 6th Am. right to counsel to apply?
NO - this is a Miranda requirement.
The Sixth Amendment right to counsel applies to all post-charge interrogations, whether or not the defendant knows he is speaking to a government informant.
39
Can court consider co-conspirators' refusal to reveal other crime member name when deciding his sentence?
YES, this is completely fine because 5th Am. right to silence does not protect from implicating other from prosecution.
if you fail to implicate other, it will be considrered. I you do not implicate yourself, CANNOT be considered.
40
When can D's silence be used in trial?
> silence before Miranda
> silence (failure to disclose exculpatory stuff) after waiving Miranda - may be cross-examined at trial on that failure in an effort to show that it is a recent fabrication
41
What is accessory after the fact liable for?
- separate crime of obstructing justice
| - NOT LIABLE FOR Principal's crimes
42
when can an accomplice withdraw?
before the chain of events leading to commission of crime becomes unstoppable.
43
Guilty plea
A guilty plea is a waiver of the Sixth Amendment right to a jury trial.
the judge should make sure that the defendant is
=> informed of the nature of the charge to which the plea is offered,
=> of the maximum possible penalty,
=> that she has a right not to plead guilty, and that
=> by pleading guilty she waives her right to a trial.
if any not met, D's plea will not be a sufficiently intelligent choice to satisfy the constitutional standard, and therefore will not be immune from a post-sentence attack on it
44
to be accessory after the fact
crime must have been finished/already committed.
before that => accomplice.
45
Crime Battery v. Civil battery
- Criminal Battery - Unlawful application of force to the person resulting in either bodily injury or offensive touching.
> DOES NOT have to be intentional, can be CRIMINAL NEGLIGENCE
> can be indirect - poison someone
Civil Battery
- intent
- harmful offensive contact
- with P's body.
46
Common Law Conspiracy
at least TWO guilty parties.
cannot be just 1
47
when can co-conspirator's statement be admitted as a statement against interest
A co-conspirator's statement to qualify as a vicarious statement of an opposing party, the statement must have been in furtherance of the conspiracy by a participant in it.
48
MPC insanity state of mind
Model Penal Code, a defendant is entitled to acquittal if he suffered from a mental disease or defect and as a result lacked substantial capacity to either:
(i) appreciate the criminality of his conduct; or
(ii) conform his conduct to the requirements of law.
49
Larceny v. Embezzelement
=> larceny must have the intent to permanently deprive at the time to take the property. There was no lawful possession to being with (except continuing larceny)
=> embezzlement ALWAYS starts with lawful possession.
Note: if you are given a company car, they choose to sell it instead of returning it => embezzlement, not larceny.
50
What are MURDER state of minds?
- intent to kill
- intent to inflict great bodily injury
- depraved heart (reckless indifference to an unjustifiably high risk to human life)
- intent to commit a felony (FM)
51
Can assault with deadly weapon be counted as a felony for purposes of FM rule to cause murder?
NO, this is not an independent felony - so merges with killing
- assault with deadly weapon
- battery that directly causes death
==> cannot use for felony murder
52
attempt elements
1) specific intent => the intent to commit the act that he is accused to attempt (if can show that intent was to scare, not kill - CANNOT BE ATTEMPTED MURDER)
2) substantial step toward the act (overt act)
53
Is being drunk a defense for reckless behavior?
NO, ONLY defense for specific intent crimes!
ignore this fact when picking an answer choice if there is no specific crime involved.
54
🌻 PLEASE FOCUS ON MENS REA IN THE QUESTION FOR CRIM LAW AND ELIMINATE ALL ANSWER CHOICES THAT TALK ABOUT OTHER MENS REA 🌞
🐒
55
if you have a statute that has 3 parts, D knows and follows 2, but not 3rd
guilty! => mistake of law is not a defense
must follow all 3!
does not matter if it was reasonable
56
what's accomplices' intent
1) specific intent that principle commit the offense
| 2) must aid, abate, encourage Principle
57
Accomplice Liability EXAMPTION !
members of a class protected by a statute that has been violated, are EXEMPTED from liability
ex: kid asking someone to buy him a beer (statute to not sell to minor)
58
Can a minor be guilty of crime?
anyone over 14 can usually be held guilty of crime.
59
Does principle have to be convicted before accomplice can?
NO, no such requirement.
60
Conspiracy mens rea
1) specific intent to commit the target offense + intent to pursue unlawful act.
2) CL => more than 1 person with guilty mind (meeting of the minds)
overt act is MPC, not CL unless told.
61
Is there a conspiracy withdraw defense ?
NO DEFENSE TO A CHARGE OF CONSPIRACY
Withdrawal CAN be a defense
> to the substantive crimes if
- affirmative ACT notifying all other members of the intent to withdraw (can just say
- must be timely so that others can withdraw if they want as well
> also defense to accomplice
62
Can you withdraw from conspiracy under the MPC?
Yes, but have to do an actual act to abort the crime, rat them out, call the cops, etc.
63
Robbery v larceny
Larceny
taking and carrying away someone else's property without consent with intent to premaritally deprive
Robbery
- Same
+ use of force or threat
+ from V's presence or surroundings
Note - larceny can turn to robbery => try to pickpocket, then sees you and you push her away - robbery!
64
latency/robbery v. attempted latency/robbery
the moment you take the stuff away => completed crime, does not matter if they ran after you and take it back (cannot count as attempt)
> remember - attempt requires specific intent of the the target crime + substantial step.
65
robbery
larceny + assault or battery
66
assault
CRIMINAL
(i) an attempt to commit a battery, or
(ii) the intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm.
CIVIL
> Put P in a reasonable apprehension of immediate battery
CAREFUL => if criminal, can be an assault EVEN IF P has no apprehension of imminent harm, cuz it can be only attempted crim battery (attempt to unlawfully apply force to the person resulting in bodily injury or offensive touching).
67
Modern arson
malicious (intent + reckless disregard) burins of ANY dwelling or property
can be your own house => go with this unless told to use CL.
68
Malice crimes
punishing you for your actions and inferring bad intent
- murder (includes reckless indifference - depraved heart)
- arson (includes reckless disregard to obvious risk)
69
Money exchanging hands 💸💸💸💸💰
think false pretenses cuz this is exchange of title + fraud
not embezzlement - must start with lawful possession (if the money was not yours legally, no embezzlement
FRAUDULENT MONEY EXCHANGE IS FALSE PRETENSES!
not larceny by trick cuz exchanging hand in money is not possession of money, it is getting the title to the money.
70
What can grand jury consider?
- hearsay
- inadmissible stuff
- illegally obtained stuff (EXCLUSIONARY RULE DOES NOT APPLY)
grand jury decides if there is a probable cause.
71
Areal surveillance - search?
Home - yes! police cannot fly over your home and shine lights and search stuff. Can only fly over and see whatever a naked eye can see. Most can use is vernaculars.
Business - lesser expectation of privacy. Special equipment, lenses stuff allowed over a business.
Open fields - no expectation of privacy, can search anything they want. No probable cause is needed for search.
72
Incident to arrest search of car (after you are already arrested)
- officer safety (too many suspects, not enough handcuffs)
- fear that evidence can be destroyed
- evidence related to your arrest (search for bottles for DUI arrest)
73
When can police frisk you?
reasonable suspicion stop - causes reasonable suspicion that you are armed and dangerous, concealing contraband => can do a protective frisk.
putdown of the outer clothing for weapons.
if officer, based on plain feel feels like there is weapon or contraband => can take it out.
74
5th am Miranda right to attorney IS NOT CRIME SPECIFIC!
If you ask for an attorney, ALL questions about ANY CRIME must stop immediately.
75
if a person is arrested, given Miranda, clearly and validly invokes Miranda,
in the cell > talk to informant and tells stuff
this is all admissible and NOT A VIOLATION OF MIRANDA cuz D did not know he was talking to the police - no coercive interrogation here. (5th am)
76
If a person is read Miranda and invokes right to counsel, then police put an informant in the cell
5th Am Miranda right to counsel => not violated no matter what they talk about cuz no coercive interrogation here
6th Am Right to counsel
=> D talked about the same crime he invoked the counsel for - NOT OK, violation of 6th Am. IF POST charge, not prior charges. CHECK THIS - - - DOES INFORMANT HAVE TO WANT TO ELICIT BAD STUFF?
=> talked about ANOTHER CRIME in post charge time - no 6th am violation cuz right to counsel is crime specific.
77
burdens
Prosecution has a person to prove each element of crime beyond reasonable doubt.
Court cannot put this burden on D by saying "find D not guilty if X element is not met." Instead, must tell jury to only find guilty if the element is met." - otherwise is switching the burden to D to prove innocence, which is unconstitutional.
Note: Affirmative defense burden to prove is on D.
78
Double jeopardy attaches
- conviction
- acquittal
- prosecutorial misconduct
starts at the moment
- jury trial - jury sworn
- bench trial - 1st witness sworn
79
Exceptions to double jeopardy
> where charges can be brought in a single trial but D consents to separate trials => no double jeopardy issue
> hang jury
> mistrial for manifest necessity (injustices)
> appeal grants retrial order - cannot be for higher offenses (can retry if issue is weight of evidence, but not if the issue is insufficiency of evidence)
> D breached plea bargain
80
If you have a 6 person jury
must be unanimous!
81
When does the right for jury trial apply?
if the max sentence is over 6 months
82
Does intoxication affect the degree of the murder?
Yes usually. from 1 => 2nd degree (depraved heart - reckless indifference)
In state that divides murder into degrees, evidence that the defendant was intoxicated may be used to show that the defendant was unable to premeditate and deliberate on the idea of killing
83
Factural v. Legal impossibility
Factual => NOT a defense for attempt
Legal => is defense for attempt (you though the act was illegal when it actually was legal).
84
answer choice for when a co-felon is killed during crime and D is facing a FM charge.
Most courts today would not allow the defendant to be convicted on a felony murder theory when a co-felon is killed by a third party during the crime.
Some courts base this result on the fact that the person who did the killing was justified in doing so.
85
evidence offered for demonstrative purpose v. original evidence
if original evidence that played an actual role in the crime itself, such as a gun used by the robber would require the “chain of custody” type of authentication.
if offered to demonstrative purposes (help picture the set up of the room) authentication focuses on whether it is an accurate representation rather than how it was handled. 🙉
86
what mens rea is not enough for accomplice liability?
Mere knowledge that a crime would result from the aid provided is generally insufficient for accomplice liability.
87
invoking right to attorney V. right to remain silence
attorney - must seize all questioning
- can resume questioning with attorney
- D started talking first
Silence, must seize all questioning, can resume
- after significant time
- new Miranda
- about different crime.
88
Difference bw.
> 6th Amendment Right to Counsel v.
> 5th Amendment (Miranda) right to ask for counsel
6th Am => police can question D about crimes OTHER than what attorney is hied for, but must still give Miranda.
5th Am => in D invokes Miranda, MUST STOP all questioning at that moment and can resume
- with attorney present
- if D starts talking first
89
Can you invoke 4th amendment unreasonable search and seizure for someone else's search?
NO, the search party must invoke
- you cannot invoke this even if what they found there affects your case (found drugs at B's home and charged you for selling drugs).
90
May validly voluntary confession obtained without Miranda be admissible?
Yes, as long as the failure to warn was not purposeful, may not be sufficient to justify excluding the non testimonial “fruits” of the confession.
91
How do you decide whether the confessions as voluntary?
look at totality of circumstances
92
Can statements obtained after proper Miranda still be not okay if police committed an illegal search or arrest before.
Yes, even if Miranda part is ok, still would be excluded as a fruit of poisonous tree if were obtained as a result of an illegal arrest or search.
93
Can failure to seek medical attention be malice - causing murder.
Usual no, usually considered criminal negligence that leads to voluntary manslaughter
94
How can use intoxication defense when cannot use intoxication as a defense (for malice crimes)
Can argue that drinking and driving shows criminal negligence or recklessness etc.
Pay attention to statutes that modify these rules.
95
warrant-less inspections of commercial properties.
lower expectation of privacy here + gov. strong interest to regulate stuff => so gov. can inspect without warrant.
Note: usually must be a passed regulation authorizing such inspections (junkyard inspections are a real example).
Answer may say ok cuz deals with highly regulated industry.
96
if the statement is made as a result of mental disease, is it voluntary?
Yes, still voluntary and can come in if no other problems
97
Do not forget proximate cause
for murders and manslaughter
98
Does Double Jeopardy estoppel apply when D is charged under 2 different statutes?
Yes, if the rule that each crime contain an element that the other does not contain does not apply.
Also, no requirement that all charges against D be brought in the same prosecution.
So if it is not a lesser included crime and satisfies Blockburger, can be brought separately, even if rises from same facts: murder during robbery.
99
after object of the warrant has been seized, what else can the police search?
police can do a protective sweep of the place to see if there are any other accomplices, but cannot search where a person would not fit (closet ok, but not a little box with drugs).
Note: still ok to seize stuff in plain view during protective sweep.
100
is a reasonable expectation of privacy violated when police put recording devices in student's dorm room.
YES, and warrant based on this and anything learned and seized is poisonous fruit. Police must have probable cause and a warrant to do this.
101
Is there a robbery if D pretends to point a gun on v, but v is not afraid, rather feels sorry for D and gives him money?
No robbery => for robbery, taking must be achieved as a RESULT of violence or intimidation.
In this case, can be convicted of attempted robbery, cuz v did not give up money as a result of fear.
102
if D acquitted on a felony, can P later use that felony as a base for a felony-murder charge?
NO, double jeopardy would block this, but if was actually convicted of the felony below, can bring a separate FM based on this (i think).
103
for false pretenses, does it matter if V's believing the misrepresentation was unreasonable?
no, irrelevant, as long as v believed the misrepresentation and transferred title. (includes obtaining money).
104
what is NOT appropriate remedy for invalid arrest
dismissing the case entirely!
> can refuse to admit evidence obtained as a result of arrest as poisoned
105
can a person be convicted of larceny AND robbery?
NO, these crimes merge! Either or!
106
when are threat words enough and not enough?
assault => not enough to create apprehension need physical act
robbery => enough if it is a threat of imminent harm.
107
What crimes is the accomplice liable for?
> the principle crime if he intended for it to be committed
> any other foreseeable crimes that occur.
108
Does fruit of poisonous tree doctrine bar a confession made during unlawful warrant less entry?
No, remedy for warrantless entry does not include properly obtained confessions (with proper Miranda) Check this*
109
auto search based on probable cause, can police search the passenger?
Yes, if passenger is in the car, can search her too (including purse).
Note: if right before stop, police see the passenger leave the car, cannot search her anymore.
110
If D is granted immunity to testify in grand jury, and then testifies that his friend committed the criminal act with him
P cannot then go question friend and use that testimony against D.
111
Careful to check at what point are new people joining the conspiracy and for what?
if 2 people steal stuff and call C to ask if he wanted to buy them. C cannot be convicted for conspiracy to steal, but may be convicted for conspiracy to receive stolen property.
112
what type of evidence does 5th Am. priv. against self-incrimination apply to?
testimonial or communicative evidence, not real or physical evidence. (can ask D to take a walk in front of the jury, produce voice, blood, handwriting samples, even if incriminating).
113
Attempt always requires specific intent.
even if the actual crime does not require only specific intent.
ex: murder mens rea is malice, which includes specific intent to kill and depraved heard murder.
but attempted murder has to have specific intent to kill and overt act in furtherance (beyond mere preparation)
Careful with scenarios where there are multiple people involved and D missed to kill only 1, for each person, separately check if 2 attempt elements are met - specific intent and overt act in furtherance beyond preparation.
114
burden of proof of the heat of passion. (murder to voluntary manslaughter)
CAREFUL! cannot put the burden on D to show that the killing was done in heat of passion. BUT once D puts for some evidence of heat of passion, BURDEN ON P to show that there was no heat of passion.
cannot instruct jury to put the burden on D to show heat of passion.
115
Can you attempt a crime that required mens rea of recklessness or negligence?
no! attempt is a specific intent crime. YOU CANNOT intend to be negligent.
116
double jeopardy retrial exception
allowed retrial if based on weight of the evidence
not allowed, if retrial based on sufficiency of evidence
117
transferred intent
intent to kill someone and then B gets actually killed => transferred intent, does not matter who actually died.
Rule: if intended to kill or cause serious bodily harm to one person and killed another, malice aforethought to the unintended victim is established through transferred intent.
> DOES NOT APPLY TO ATTEMPT (intend to burn your own house and recklessly almost burn of B's house, but stopped => cannot be charged with attempted arson of neighbor's house because did not intend to burn neighbor's house, and the intent to burn your own house does not transfer)
118
when can use deadly force in self-defense
Can use if threatened with imminent serious bodily injury or death.
119
Agency theory for felony murder.
felon is only responsible for deaths that felon causes or felon's accomplices cause.
120
M'Naghten Rule
- Disease of the mind
- caused a defect of reason
- which left the D at the time of his actions lacking the ability to either
> know the wrongfulness of his actions or
> understand the nature and quality of his actions.
121
knowledge that crime may result => accomplice?
mere knowledge that a crime will result from the sale of ordinary goods in ordinary prices will be used for crime is not enough to create accomplice liability
122
false pretenses
transferring money, false check (cash), ponsi scheme.
123
Is intoxication defense to attempt? (exception)
Yes, attempt is a specific intent crime.
BUT CANNOT form the intent and then drink and commit the act => no defense because you formed the intent then drank.
124
duress defense
duress is a defense for all crimes BUT NOT MURDER for public policy reasons
note: sometimes may reduce murder to manslaughter
125
can a police officer use deadly force to prevent a getaway?
YES, if the fleeing felon poses significant threat or of death or serious bodily injury to others
126
what can a car passenger challenge?
the stop of the car
NOT search of the car
127
police's implies license to knock and 4th Am.
police has an implied license to go to a person's door and knock (like other people), BUT CANNOT BRING A DRUG SNIFFING DOG, this is an intrusion into a constitutionally protected area => violates 4th am.
128
valid arrest warrant to arrest B, B is in the friends house, no warrant to search, police goes to friends house and searches over objections and finds B, arrests and finds drugs in the pocket. can B suppress drugs?
NO => no standing to challenge the search (even though search was illegal cuz no warrant)
note: unless B was an overnight guest -> may create expectation of privacy
his search and arrest was legal cuz police had an arrest warrant.
129
Open fields doctrine
even if a person owned a field/land, he does not have a reasonable expectation of privacy there. Expectation of privacy is only for house or cartilage (immediate surrounding ares of the house - barn, garage, fence).
So police can fly planes or even cut the fence and enter the field => no 4th am. issue.
These may be a tort (trespass, but not 4th am. issue) - so stuff obtained should be admissible.
130
school official search and seizure
> need reasonable suspicion to search backpack, etc.
131
post charge line up
critical stage or prosecution, where D has a 6th am to counsel!
this right attached AS SOON AS D IS IN THE SIGHT OF ID WITNESSES
if 6 people and D is there and everyone is approaching, but D has not approached first => still need counsel present cuz D is in the view of witnesses.
132
does a LL have implied authority to consent to a search of the leasee's premises?
NO!
133
does a person have to retreat before using self-defense?
majority rule is NO
Minority, yes, has to retreat, unless
(1) no duty to retreat from your home;
(2) no duty to retreat if you are the victim of a
rape or a robbery; and
(3) police officers have no duty to retreat.
134
does Double Jeopardy block charging a person for a conspiracy of a crime for which he has already been convicted.
NO!
The general rule is that two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes. [Blockburger v. United States (1932)] Furthermore, a prosecution for conspiracy is not barred merely because some of the alleged overt acts of that conspiracy have already been prosecuted
135
Can you convict a person for murder or accomplice to murder if they watch B kill someone and stand there and watch v bleed to death?
No, because there is no act to kill or assist. Mere presence at a scene where a crime happens is not enough.
136
If you see a bomb being planted and run and not tell anyone, can you be criminally charged?
No, there is no duty to warn.
137
Does grand jury, preliminary hearing create double jeopardy issue?
NO, this attaches at trial with first witness sworn or when jury is sworn in, if that has not happened, do not worry about double jeopardy.
138
careful with state action!
if says a creepy person hacked your computer and then volunteered the info she found to the police, no 4th Am. violation because no state action. But if the police takes it and tells her to get more info, this is state action and would not be admissible.
139
what to do if have an intoxicated person kill someone?
still a murder, but may not be of first degree because intoxication will not allow for cool deliberation and reflection, but he still has knowledge and intent to kill.
140
adequate provocation
can arise from an earlier attack on D
141
does recording a conversation with undercover informant violate the 4th am?
NO - this is ok under U.S. Constitution.
Note: a state may still have a greater protection and a state constitution may consider this not constitutional.
142
what does "retreat" rule mean?
DO NOT OVERUSE THIS
- only applies if D knew that he was about to use DEADLY force.
- does not have to retreat if retreat cannot be made in complete safety
143
Can constitutionally-protected religious believes be a defense to criminal acts?
Nope, cannot say I was practicing my religion and therefore did not seek medical care for my dying child.
144
Is there a Miranda violation if police arrest D, put in the car and not Mirandize or ask anything on the way to the station, hoping that D will voluntarily talk?
NO! there is no interrogation here, so stuff volunteered is admissible.
there is custody, but not interrogation
145
Can 6th Amendment right to counsel be waived?
Yes, careful, even if it is post charge, if D gets Miranda, does not request a counsel and voluntarily talks => police can question him and use everything he says.
"this right would only be violated if the defendant, after being informed of his right to counsel, had requested an attorney or had been prevented from seeing his attorney."
146
Does D have a standing in apartment where he has not paid rent and is now in jail?
Yes, still has a privacy interest in the apartment and cannot be searched without a warrant
147
if there is a SOL statute for a crime, what must happen to be ok
an indictment, charges must be filed within that time. arresting a person is itself not enough.
148
invalunary confession
must be actually coerced or compulsed by he police.
note MENTAL PROBLEMS CAUSING CONFESSION IS voluntary
149
if D invokes Miranda and then goes to jail, can he get questioned 3 years later?
The prohibition against questioning a detainee after invoking Miranda rights lasts the entire time the detainee is in custody for interrogation purposes, plus 14 more days after the detainee returns to his normal life (which can include his "normal life" in jail).
150
Can the police use exigent circumstances exception if they created the exigency?
YES, so long as it was not created in actual or threatened violation of the Fourth Amendment
151
double jeopardy
under double jeopardy rules, attachment of jeopardy for the greater offense bars retrial for lesser included offenses, AND attachment of jeopardy for a lesser included offense generally bars retrial for the greater offense. An exception to this latter rule exists if all of the elements for the greater offense had not occurred at the time of prosecution for the lesser offense (a person had not died yet).
if charged for robbery - cannot be charged for felony murder based on this later because felony murder is a greater crime of the robbery
but if the person died after the robbery trail, could bring it later => no DJ because all elements were not present for felony murder then.
152
Can drinking to go kill someone be recklessness?
YES! also works cuz voluntary intoxication is not a defense to recklessness, but only specific intent stuff.
153
Can D enter into a conspiracy with undercover agents?
No - cuz need 2 guilty minds
154
REASONABLE MISTAKE OF FACT IS ALWAYS A DEFENSE
An honest and reasonable mistake as to a material element of the offense would negate criminal liability for all crimes except strict liability offenses.
155
improper out-of-court identification, can id during trial?
usually may suppress in court id too if was very bad, but not automatic. court still considers factors and may allow in court id if can show reliability.
156
does dismissing case on preliminary hearing create double jeopardy?
No, not until jurors are sworn in at the actual trial or first witness in bench trial.
157
affirmative defenses shift the burden to D, but other stuff that D introduces to disprove element of the crime?
cannot be used to shift the burden to D. Here, must still instruct the jury that must acquit if P's evidence about a certain element did not convince them beyond reasonable degree of doubt.
158
Recklessness as the standard for stuff other than murder.
yes, can be ex: acting with recklessness re P's age.
159
are traffic stops custodial for Miranda?
generally NO!!!! routine traffic stops are not custodial
160
if for a sentancing, there is a point that adds years?
This point is treated as an element and the jury must prove beyond reasonable doubt. Any point that add sentence must be proved beyond reasonable doubt.
161
is there right to counsel at the initial hearing?
Usually no because this is where charges are read, and until charged are read, there is no right to counsel
note: if charges are read, then put D in line up - there is right BECAUSE ADVERSARIAL PROCESSES HAVE BEGAN.
162
If at a court wrongly declares a mistrial without manifest necessity, does double jeopardy attach?
YES! if the mistrial was wrong and jury had already sworn in ==> DJ would block bringing the second case, does not matter if there was a verdict.
note: but if the mistrial was proper - JD will not block a second case.
note: One of the exceptions permitting retrial even if jeopardy has attached is when a mistrial is granted in the first trial at the REQUEST of the defendant on any ground not constituting an acquittal on the merits.
163
executing arrest warrant is 3rd party's home
Absent exigent circumstances, need a separate search warrant.
if enter without warrant, stuff found cannot be used against 3rd party cuz poisoned
note: arrest will still be valid.
164
Does a person actually have to have authority to consent to a search of a place?
consent is not invalid merely because the person who gave it did not actually have authority to do so; the police need only reasonably believe that the person had authority to consent,
165
car passengers standing to challenge a stop
Each passenger in a car has standing to challenge a stop of the car.
166
types of grand jury immunity | when can you compel witness to testify to grand jury
> derivative immunity = guarantees that the evidence located and testimony given will not be used against w (narrower)
> transactional immunity = guarantees immunity from prosecution from any crimes related to the testimony of witness (broader)
NOTE: CAN ONLY COMPEL W TO INCRIMINATE HERSELF IF GRANTED IMMUNITY
167
forced entry into a house
search warrant => ok if person believed to be inside and no response
arrest warrant => need probably cause to believe that the person is in the house.
