Criminal Law

Question 1

Criminal Homicide

Answer 1

At common law, the term homicide was used to describe three types of unlawful killings; (1) murder, (2) voluntary manslaughter, and (3) involuntary manslaughter.

Question 2

Criminal Homicide (1) - Murder

Answer 2

Murder is the unlawful killing of another person with malice aforethought. Malice aforethought exists when there is either: (1) intent to kill; (2) intent to inflict great bodily injury; (3) reckless indifference to an unjustifiably high risk to human life; and (4) intent to commit a felony that results in a killing (felony murder).

Question 3

Criminal Homicide (1) - Murder - Elements of Felony Murder

Answer 3

In order to convict a defendant of felony murder: (1) the defendant must be guilty of the underlying felony; (2) the felony must be distinct from the killing itself; (3) death must have been the foreseeable result of the felony; and (4) the death must have occurred during the commission of the felony and not after it was terminated.

Question 4

Criminal Homicide (1) - Murder - Elements of Felony Murder - Distinct From Killing

Answer 4

[Felony can’t be the killing itself, must be something else like a robbery or a burglary.]

Question 5

Criminal Homicide (1) - Murder - Elements of Felony Murder - During the Commission of the Felony

Answer 5

Felony murder cannot attach if the defendant reached a place of temporary safety before the death occurred. However, if the death occurs while the defendant is fleeing and/or the police are in hot pursuit of the defendant, the defendant may still be charged with felony murder.

Question 6

Criminal Homicide (1) - Murder - Elements of Felony Murder - Foreseeability

Answer 6

[Explain WHY it’s foreseeable! Use the facts. Talk about the specific felony involved, and why the nature of the felony and the stakes involved tend to cause deaths to happen.]

Question 7

Criminal Homicide (1) - Murder - Elements of Felony Murder - Guilty of Underlying Felony

Answer 7

[Make sure to analyze EACH element of the underlying felony, or risk losing points!]

Question 8

Criminal Homicide (1) - Murder - Felony Murder

Answer 8

Any death caused during the commission of, or in the attempt to commit, a felony is murder. Malice aforethought is implied by the defendant’s intent to commit a felony. Today, statutory law distinguishes between first-degree felony murder and all other felony murders.

Question 8

Criminal Homicide (1) - Murder - First-Degree Felony Murder

Answer 8

First-degree felony murder occurs when a killing occurs during the course of an enumerated felony that is inherently dangerous. In most jurisdictions, the enumerated felonies are arson, robbery, burglary, rape, mayhem and kidnapping.

Question 10

Criminal Homicide (1) - Murder - Statutory Degrees of Murder

Answer 10

In some jurisdictions, common law murder has been re-classified into two different categories: first-degree murder and second-degree murder.

Question 10

Criminal Homicide (1) - Murder - Statutory Degrees of Murder - First Degree Murder

Answer 10

First-degree murder occurs when the defendant perpetrates a killing that was premeditated and deliberate.

Question 11

Criminal Homicide - Murder (1) - Statutory Degrees of Murder - First Degree Murder - Premeditated and Deliberate

Answer 11

A premeditated and deliberate killing occurs when the defendant takes time to reflect on the idea of killing and makes the decision to kill while in a dispassionate state. Premeditation can occur in mere seconds.

Question 12

Criminal Homicide - Murder (1) - Statutory Degrees of Murder - Second Degree Murder

Answer 12

Second-degree murder is all other killings that do not qualify as first-degree murder. [see analysis above for first-degree murder]

Question 13

Criminal Homicide (2) - Voluntary Manslaughter

Answer 13

Voluntary manslaughter is a killing that occurs with adequate provocation (also known as during the “heat of passion”).

Question 14

Criminal Homicide (2) - Voluntary Manslaughter - Adequate Provocation

Answer 14

Provocation occurs when the defendant experiences a sudden and intense passion that causes him or her to lose control, and that passion causes the killing (i.e., the defendant was actually provoked). There must not be sufficient time between the provocation and killing for the passion of a reasonable person to subside (cooling off period).

Question 16

Criminal Homicide (3) - Involuntary Manslaughter

Answer 16

An involuntary manslaughter occurs when the defendant commits a killing with criminal negligence or during the commission of an unlawful act (e.g., a misdemeanor or unenumerated felony).

Question 17

Criminal Homicide - Causation

Answer 17

In order to qualify as homicide, the defendant’s acts must have been both the actual cause and proximate cause of the victim’s death. [Only write about this if there are intervening acts that throw into question whether defendant caused the death.]

Question 18

Criminal Homicide - Defense and Justifications - Murder

Answer 18

Justifications (1) Defense of Self or Other (2) Crime Prevention (3) Necessity Excuses (1) Infancy (2) Insanity (3) Intoxication Mitigation (1) Heat of passion (2) Imperfect Self-Defense (3) Mistaken Justification (4) Diminished Capacity

Question 19

Criminal Homicide - Defenses and Justifications - Felony Murder

Answer 19

(1) There is a defense to the underlying felony. (2) Redline Rule: Defendant not liable for death of co-felon by cop or resisting victim.

Question 20

Defenses - Diminished Capacity

Answer 20

For specific intent crimes, defendant may be acquitted if the wrongful conduct resulted from a mental defect, which prevented defendant from having the requisite mental state to commit the crime.

Question 21

Defenses - Infancy

Answer 21

Children under the age of 7 have no criminal liability. Children older than 7 but younger than 14 have a rebuttable presumption of no criminal liability.

Question 22

Defenses - Insanity

Answer 22

The majority of states have adopted the M’Naghten Rule, which acquits defendants who, at the time of the criminal act, lacked ability to (1) know wrongfulness of their conduct to society, or (2) understand the nature and quality of their actions.

Question 23

Defenses - Intoxication

Answer 23

Voluntary intoxication is a defense to specific intent crimes. Involuntary intoxication is a defense to all crimes.

Question 24

Excuses - Consent

Answer 24

Consent may excuse defendant’s wrongful act if (1) the consent was voluntary, (2) the victim was legally capable, and (3) no fraud was used in obtaining consent.

Question 25

Excuses - Entrapment

Answer 25

At common law, defendant’s wrongful act is excused by entrapment if (1) a law enforcement officer originated the criminal plan, and (2) the defendant was not predisposed to committing the wrongful act. The minority rule is that defendant’s wrongful act is excused by entrapment if the police officer’s actions would induce a reasonable person to commit the crime.

Question 26

Excuses - Mistake of Fact

Answer 26

Mistake of fact excuses defendant’s wrongful act only if it negates the necessary intent for the crime. For a specific intent crime, any mistake will negate the requisite mens rea. For a general intent crime, the mistake must be reasonable.

Question 27

Excuses - Mistake of Law

Answer 27

Mistake of law generally does not excuse a defendant’s wrongful act, even if that mistake was predicated on erroneous legal advice from an attorney. However, mistake of law might excuse the defendant’s conduct if it is based on reasonable reliance on a judicial decision overturned on appeal.

Question 28

Incriminating Statements

Answer 28

In order for an incriminating statement to be admissible in court, it must pass muster under both the 5th and 14th Amendments.

Question 29

Incriminating Statements - 14th Amendment (Liberty)

Answer 29

Under the 14th Amendment Due Process Clause, an incriminating statement or confession is admissible only if it was voluntary. Voluntariness generally means that the statement was the byproduct of rational intellect and free will, and not official compulsion or coercion. Voluntariness is evaluated by examining by the totality of the circumstances, including: the age, mental ability, and physical condition of the suspect, and the setting, duration, and manner of government interrogation.

Question 30

Incriminating Statements - 5th Amendment

Answer 30

The 5th Amendment provides for a privilege against self-incrimination. However, before the privilege can be invoked, a defendant must have standing. A defendant has standing when he is subject to custodial interrogation by government agents.

Question 31

Incriminating Statements - 5th Amendment - Custody

Answer 31

A person is in custody when the person’s freedom of action is denied in a significant way based on the objective circumstances (i.e., whether a reasonable person would feel prohibited from leaving). [Remember, defendant doesn’t have to have been “in jail” or “arrested” to have been in custody.]

Question 32

Incriminating Statements - 5th Amendment - Exclusionary Rule/Fruits of the Poisonous Tree

Answer 32

Under the exclusionary rule, any evidence obtained in violation of a defendant’s 4th, 5th, or 6th Amendment rights is inadmissible evidence. In addition, under the fruits of the poisonous tree doctrine, any evidence obtained from exploitation of the illegally-obtained evidence is also inadmissible.

Question 33

Incriminating Statements - 5th Amendment - Government Conduct

Answer 33

[probably can refer to above]

Question 34

Incriminating Statements - 5th Amendment - Inevitable Discovery Doctrine

Answer 34

One major exception to the exclusionary rule is the inevitable discovery doctrine. Under the inevitable discovery doctrine, otherwise admissible evidence becomes admissible if the prosecution can show that the police would have discovered it without violating the defendant’s constitutional rights.

Question 35

Incriminating Statements - 5th Amendment - Interrogation

Answer 35

Interrogation includes any words or conduct by the police that they should know would likely elicit an incriminating response from the defendant.

Question 36

Incriminating Statements - 5th Amendment - Miranda Warnings

Answer 36

Once the defendant is subject to custodial interrogation, an incriminating statement is only admissible after the defendant has been advised of his Miranda rights. The Miranda warnings include: (1) the right to remain silent; (2) anything said can be used against the defendant in a court of law; (3) the right to an attorney; and (4) that an attorney will be appointed if the defendant cannot afford one.

Question 37

Incriminating Statements - 5th Amendment - Miranda Warnings - Public Safety Exception

Answer 37

If police interrogation is reasonably prompted by concern for public safety, responses to the questions may be used in court, even though the suspect was in custody and no Miranda warnings were not given. [Think about the Boston Marathon bombings. DoJ officials interrogated one of the bombing suspects before providing him a Miranda warning. In doing so, officials cited the public safety exception, as they had significant concerns that future attacks were planned which only the suspect could confirm.]

Question 38

Justifications - Duress

Answer 38

A defendant justifiably acts under duress, and cannot be convicted, if (1) there is a threat of death or serious bodily harm, (2) directed at the defendant or his family, (3) there is related coercion of the defendant, (4) the situation creating the coercion was not the defendant’s fault, and (5) the defendant’s wrongful act was not homicide.

Question 39

Justifications - Necessity

Answer 39

A defendant justifiably acts under necessity, and cannot be convicted, if he faces (1) pressure from natural or physical forces, and (2) undertakes action that is reasonably necessary to respond to those forces.

Question 40

Justifications - Self Defense

Answer 40

A defendant justifiably acts in self defense, and cannot be convicted, if he has (1) reasonable fear of imminent bodily harm, (2) the defendant used reasonable force in his attempt to defend himself, and (3) the defendant was not the original aggressor in the altercation.

Question 41

Search and Seizures - 4th Amendment

Answer 41

The 4th Amendment generally prohibits unreasonable searches and seizures. In order to bring suit for a 4th Amendment claim, the defendant must first show that: (1) there was government action; (2) involving a search or seizure; and (3) that he or she has standing.

Question 42

Search and Seizures - 4th Amendment - Exceptions to the Warrant Requirement

Answer 42

All warrantless searches violate the 4th Amendment unless a recognized exception applies.

Question 43

Search and Seizures - 4th Amendment - Exceptions to the Warrant Requirement - Automobile Exception

Answer 43

Under the automobile exception, law enforcement may search an entire vehicle that they believe to contain fruits, instrumentalities, or evidence of a crime. They may also search any containers within the vehicle for which they have probable cause to search.

Question 44

Search and Seizures - 4th Amendment - Exceptions to the Warrant Requirement - Consent

Answer 44

A warrantless search is valid if the police have voluntary and intelligent consent. The scope of the search is limited to the scope consented to and consent must be given by someone with the actual or apparent authority to offer it.

Question 45

Search and Seizures - 4th Amendment - Exceptions to the Warrant Requirement - Consent - Implied Consent

Answer 45

Implied consent exists when the surrounding circumstances lead a reasonable person to believe that consent has been granted even though words of agreement were not direct, express or explicit. [Consent is implied for alcohol tests by virtue of driving a car, or having bags and person searched by virtue of boarding a plane.In a post 9/11 world, implied consent has been expanded to mass transit systems, areas of mass congregation (sports events, conventions, etc.), and use of transportation infrastructure (vital bridges and tunnels).]

Question 46

Search and Seizures - 4th Amendment - Exceptions to the Warrant Requirement - Exigent Circumstances / Hot Pursuit

Answer 46

Under the hot pursuit exception, law enforcement may: (1) in pursuit of a fleeing felon make a warrantless search and seizure or even follow the felon into a private dwelling; (2) make a warrantless seizure of any evidence likely to disappear before a warrant can be obtained; and (3) make a warrantless search or seizure of contaminated food or drugs, children in trouble, and burning fires.

Question 47

Search and Seizures - 4th Amendment - Exceptions to the Warrant Requirement - Plain View

Answer 47

Under the plain view exception, law enforcement may make a warrantless search when they: (1) are legitimately on the premises; (2) discover evidence, fruits, or instrumentalities of a crime, or contraband; (3) see such evidence in plain view; and (4) have probable cause to believe that the item is evidence of a crime.

Question 48

Search and Seizures - 4th Amendment - Exceptions to the Warrant Requirement - Search Incident to Lawful Arrest (SILA)

Answer 48

Incident to a lawful arrest, law enforcement may search the arrestee and any areas into which he might have control. An arrestee has control over those areas into which he might reach to obtain weapons or destroy evidence. [Automobile] If the arrestee is in an automobile, the entire automobile may be searched under this exception, with the exception of the trunk. [Protective Sweep] If law enforcement has a reason to believe that accomplices are present, they may make a protective sweep of the entire area under this exception.

Question 49

Search and Seizures - 4th Amendment - Exceptions to the Warrant Requirement - Search Incident to Lawful Arrest (SILA) - Incident

Answer 49

In order for a search to be incident to a lawful arrest, the search must be contemporaneous in time and place with the arrest.

Question 50

Search and Seizures - 4th Amendment - Exceptions to the Warrant Requirement - Search Incident to Lawful Arrest (SILA) - Lawful Arrest

Answer 50

A lawful arrest is one for which an officer has probable cause. Evidence discovered after the arrest may not be retroactively used to justify the arrest.

Question 51

Search and Seizures - 4th Amendment - Exceptions to the Warrant Requirement - Stop and Frisk

Answer 51

Under the stop and frisk exception, law enforcement may stop a person without probable cause for arrest if there is reasonable articulable suspicion of criinal activity. If the officer believes that the person is armed and dangerous, he or she may also conduct a protective frisk of the individual. The frisk is limited to a pat-down of the individual’s clothing unless the officer has reason to believe that a weapon is hidden therein. If during the pat-down, the officer believes “based on plain feel” that there is a weapon or contraband contained in the suspect’s clothing, the officer may reach inside the clothing to remove it.

Question 52

Search and Seizures - 4th Amendment - Exclusionary Rule

Answer 52

Under the exclusionary rule, any evidence obtained in violation of a defendant’s 4th Amendment rights is inadmissible. [Based on analysis above, was there a 4th Amendment violation?]

Question 53

Search and Seizures - 4th Amendment - Government Action

Answer 53

The 4th Amendment only protects against government conduct and not actions by individuals.

Question 54

Search and Seizures - 4th Amendment - Search and Seizure

Answer 54

[Just not whether or not a search or seizure took place.]

Question 55

Search and Seizures - 4th Amendment - Standing

Answer 55

In order to have standing to make a 4th Amendment claim, the plaintiff must (1) have a reasonable expectation of privacy in the place searched, and (2) a substantial ownership interest in the thing seized. [Analyze heavily here.]

Question 56

Search and Seizures - 4th Amendment - Warrant Requirement

Answer 56

In order for a search or seizure to be valid under the 4th Amendment, the police must have a valid warrant or a valid exception to the warrant requirement.

Question 57

Search and Seizures - 4th Amendment - Warrant Requirement - Valid Warrant

Answer 57

A valid warrant must (1) be based on an affidavit showing probable cause that seizable evidence will be found in the place searched; (2) be issued by a detached and neutral magistrate upon an independent, impartial determination that the affidavit showed probable cause; (3) on its face precisely state the place to be searched and the items to be seized.