Criminal Law and Criminal Procedure

Question 1

the basic elements of a crime:

Answer 1

-act; intent; causation; and concurrence

Question 2

causation

Answer 2

-Causation requires showing that the defendant’s acts were BOTH the actual and proximate cause of the outcome.
-Proximate cause is present if the outcome was foreseeable

Question 3

accomplice liability

Answer 3

-A person is guilty as an accomplice if he assists or encourages the principal WITH dual intents:
(1) the intent to assist the primary party, AND
(2) the intent that the primary party commit the offense
charged.
*Remember a person is not liable for accomplice liability—they are liable for the crime committed through the theory of accomplice liability.

Question 4

murder and manslaughter distinctions:
-murder in general statement for essay

Answer 4

“In order to be guilty of murder, the defendant must have the mens rea of malice aforethought which is satisfied in most jurisdictions with intent to kill (first-degree), with knowledge that his acts would kill (first-degree), with intent to inflict great bodily harm (second-degree), or with reckless disregard of an extreme risk to human life (second-degree).”

Question 5

first-degree murder

Answer 5

-this is the intent to kill with premeditation and deliberation.
-Some states follow the rule that premeditation and deliberation require proof of a cool mind capable of reflection and some period of reflection.
-Other states follow the view that premeditation and
deliberation can occur in an instant and can be inferred from circumstantial evidence (e.g., using a deadly weapon).

Question 6

second-degree murder

Answer 6

-This is satisfied by the intent to inflict great bodily harm or by acting with reckless disregard of an extreme risk to human life (depraved heart murder). (Note: it is also the catchall—i.e., when an act constitutes “murder” but is not quite first-degree.)
*Note that the requirement for depraved heart murder usually requires that the defendant acted recklessly AND that the defendant’s conduct shows a “high degree of indifference to
the value of human life.”

Question 7

felony murder

Answer 7

This applies to any killing that occurs during the commission of a felony, an attempt to commit a felony, or a flight from a felony.
-The felony must be inherently dangerous, and the
purpose of the felonious conduct must be independent of the homicide.

Question 8

voluntary manslaughter

Answer 8

-an intentional killing of a human being without malice aforethought, committed in the heat of passion, due to adequate provocation

Question 9

involuntary manslaughter (misdemeanor manslaughter)

Answer 9

-The defendant causes the death of another human being by engaging in conduct that creates an unreasonable risk of death or serious bodily injury.
-The majority view is that the defendant must have acted “recklessly.”
-Some states say that “gross negligence” is enough.

Question 10

inchoate crime of attempt

Answer 10

Know that the mens rea is “intent” and the actus reus requires “acts beyond mere preparation.

Question 11

to prove attempt, the prosecution must prove 2 elements:

Answer 11

(1) The defendant intended to commit the crime, AND
(2) the defendant’s acts went sufficiently beyond “mere preparation” to commit the crime.
(The common law uses the words “dangerously close” to the crime, whereas the Model Penal Code requires that the defendant’s conduct is a “substantial step” toward the crime and corroborative of his criminal intent.)
-In most states, abandonment is NOT a defense to attempt.

Question 12

criminal defenses:
-duress

Answer 12

-The defendant commits a crime because there was a threat or use of force by another which caused a reasonable fear that, if the defendant did not perform the crime, either he or a third
person would suffer imminent death or serious bodily injury.
-One cannot use duress as a defense to an intentional homicide.

Question 13

criminal defenses:
-insanity

Answer 13

The majority of states use the M’Naghten test:
—The defendant must prove he suffered a
disease of the mind that caused a defect of reason, and as a result he lacked the ability to know the wrongfulness of the actions or understand the nature and quality of his actions.

Question 14

Criminal Procedure:
-When the 4th Amendment prohibition against unreasonable searches and seizures is tested, begin by identifying the 4th Amendment:
-standing

Answer 14

-a person has standing to raise a Fourth Amendment challenge if he has an expectation of privacy in the thing searched or seized.

Question 15

general rule regarding the 4th Amendement

Answer 15

-The Fourth Amendment applies to searches or seizures conducted by government agents in areas where the complaining individual has a reasonable expectation of privacy.
-An agent usually needs a warrant. However, there are many exceptions, including exigent circumstances, search incident to arrest, consent, the automobile exception, plain view, inventory searches, special needs, and Terry stops/frisks.

Question 16

plain view exception to warrant requirement

Answer 16

if officers are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, AND if the officers have a lawful right of access to it, they may seize it without a warrant.

Question 17

Terry stops and frisks

Answer 17

-the Fourth Amendment permits detention of an individual for a brief period of time if the police have “reasonable, articulable suspicion” that the individual has been recently involved in criminal activity

Question 18

If the essay tests confessions, be able to distinguish between the Fourteenth Amendment, Sixth Amendment, and Fifth Amendment, as well as when the rights under those
Amendments attach.

Answer 18

-Know that anything other than an unequivocal request for counsel will NOT be sufficient to invoke one’s Fifth Amendment Miranda rights.
-Also note that officers are virtually NEVER required to tell the defendant that a lawyer is trying to contact him.

Question 19

Fourteenth Amendment: voluntariness under the Due Process Clause

Answer 19

The standard for excluding a confession under the Due Process Clause is:
(1) whether the police subjected the suspect to coercive conduct and
(2) whether the conduct was sufficient to overcome the will of the suspect.
*Neither the confession NOR the fruits of the confession can be admitted if the Fourteenth Amendment is violated.

Question 20

Sixth Amendment: right to counsel

Answer 20

-The Sixth Amendment, as applied to the states through the Fourteenth Amendment, provides that the accused has the right “to have Assistance of Counsel for his defense.”
-It attaches when judicial proceedings have begun—i.e., when the accused is formally charged via indictment, arraignment, preliminary hearing, etc. It does not attach upon arrest.
-It applies to all “critical stages” of the prosecution after formal charges are filed.
-Once it attaches, any attempts to deliberately elicit an incriminating statement about the offense that the defendant was charged with, in the absence of counsel or a knowing,
intelligent, and voluntary waiver, violates the Sixth Amendment.

Question 21

Fifth Amendment right to counsel and right to remain silent:
-state this in your essay:

Answer 21

“Law enforcement officers are required to read Miranda warnings to a suspect when the suspect is subjected to a custodial interrogation.”

Question 22

public safety

Answer 22

-warnings are not required if the questions are intended to protect public safety (e.g., to secure weapons after a shooting).

Question 23

custody

Answer 23

-a suspect is in custody if there is a formal arrest, or a restraint on freedom of movement to the degree associated with a formal arrest.

Question 24

interrogation

Answer 24

• this includes questioning initiated by law enforcement officers or any words or actions that the police should know are reasonably likely to lead to an incriminating response from the suspect.

Question 25

a VALID Miranda waiver

Answer 25

-The suspect must make a “knowing, intelligent, and voluntary”
waiver. (This is a low bar)

Question 26

a VALID Miranda invocation

Answer 26

-for both the right to remain silent and the right to counsel, the
suspect must be explicit, unambiguous, and unequivocal in making the request (e.g., “I think I need a lawyer” is not enough)

Question 27

if a violation occurs

Answer 27

-The statements are excluded from the prosecutor’s case-in-chief.
-The physical fruits are not excluded if the statements were made voluntarily.