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Rules for CA Bar Exam (Attack Sheet) > Criminal Law and Criminal Procedure > Flashcards

Criminal Law and Criminal Procedure Flashcards

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1
Q

Assault

A

Attempt to commit battery or intent to place another in reasoanble apprehension of imminent anjury.

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2
Q

Battery

A

intentional or reckless causing of bodily injury or offensive touching to another.

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3
Q

Mayhem

A

Permanent dismemberment or disablement of a bodily part

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4
Q

Kidnapping

A

unlawful confinement of another, involving movement or concealment in a secret place.

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5
Q

Aggravated kidnapping

A

Kidnapping for ransom, to commit another crime, or children taken.

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6
Q

Rape

A

unlawful sexual intercourse

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7
Q

Homicide

A

Unlawful taking of life of another

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8
Q

Two types of homicide

A

murder and manslaughter

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9
Q

Murder

A

Unlawful killing of another person with malice aforethought

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10
Q

What is the requisite mental state for murder?

A

Malice

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11
Q

How can malice be established?

A

Intent to kill, intent to commit grievous bodily injury, reckless indifference to the value of huan life, felony murder (intent to commit dangerous felony)

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12
Q

Causation required to establish murder

A

cause in fact and proximate cause.

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13
Q

Can intent transfer for murder?

A

Yes

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14
Q

What is the fleeing felon standard?

A

LEO can use deadly force if necessary to prevent felon’s escape, fleeing felon has threatened officer with weapon or probably cause that felong has created harmful crime, officer gives warning of imminent use of deadly force. Officer’s intent judged objectively from perspective of reasonable officer

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15
Q

When does intent to commit dangerous felony supply malice requirement for murder?

A

Death is natural and probably consequence of D’s conduct, occurs during commission of felony.

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16
Q

Is a defendant liable for death of co-felon when nonfelon kills co-felon during commission of felony?

A

No

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17
Q

Is D liable for murder when nonfelon victim or police officer kills bystander during commission of felony?

A

SPLIT. Agency theory: D not liable. Proximate cause theory: D liable.

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18
Q

What are inherently dangerous felonies for the felony murder rule?

A

Burglarly, Arson, Rape, Robbery, Kidnapping.

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19
Q

Reduction from murder to voluntary manslaughter: Requirement

A

Reasonable provocation, heat of passion, no cooling off time, defendant did not cool off OR imperfect self defense (mistake about need for self defense or D initiated altercation)

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20
Q

Two ways for involuntary manslaughter to arise

A

Gross negligence, misdemeanor manslaughter

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21
Q

Involuntary manslaughter - gross negligence

A

grossly negligent consult results in death of another. Disregard of very substantial danger of serious bodily harm or death.

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22
Q

Involuntary manslaughter - misdemeanor manslaughter

A

D commits misdemeanor and death occurs accidentally during commission

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23
Q

Types of murder

A

First Degree Murder - premeditation and deliberation - time to reflect; enumerated inherently dangerous felony under felony murder rule. (Mayhem, Robbery, Sodomy, Burglary, Arson, Rape, Kidnapping)

Second Degree Murder: Murder doesn’t rise to level of first degree murder, and not reduced to manslaughter.

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24
Q

Larceny

A

Trespassory taking and carrying away of personal property of another with intent to steal

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25
Q

Larceny by trick

A

D tricks other party and obtains possession through fraud or deceit

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26
Q

Embezzlement

A

Fraudulent conversion of personal property of another by one who is already in lawful possession of that property

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27
Q

Possession: Larceny v. Embezzlement

A

Larceny: no lawful possession. Embezzlement: lawful possession.

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28
Q

Conveyance of title to misrepresenter who intended to defraud. This is conveyance under _______

A

False pretenses

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29
Q

False Pretenses v. Larceny by Trick

A

False pretenses: title passes. Larceny by trick: no title pass

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30
Q

Robbery

A

Larceny - property taken from person or presence of owner through force/fear.

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31
Q

Extortion

A

threat of future harm to deprive person of property

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32
Q

theft

A

illegal taking of another person’s property

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33
Q

Burglary

A

Breaking and entering of dwelling house of another at night w/ intent to commit felony

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34
Q

When is receipt of stolen property a crime?

A

Crime when one knowingly receives, conceals, disposes of stolen property w/intent to permanently deprive owner of property

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35
Q

Arson

A

malicious burning of dwelling. (modernly, most structures, also damages by explosives)

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36
Q

Solicitation

A

One requests or encourages another to commit crime, with intent that the other person actually commit the crime.

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37
Q

Conspiracy

A

agreement between 2+ people who intend to commit unlawful act

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38
Q

Does the planned act need to be committed to establish conspiracy?

A

No

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39
Q

Conspiracy - overt act required?

A

common law - no - just making the conspiracy was enough; majority of jurisdictions now require an overt act.

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40
Q

Unilateral conspiracy v. bilateral conspiracy

A

Unilateral conspiracy - only one person needs genuine criminal intent. Common law: bilateral - two guilty minds.

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41
Q

Is factual impossibility a defense for conspiracy?

A

No

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42
Q

Once the conspiracy is formed, can one party withdraw from conspiracy liability?

A

No - but can withdraw from future crimes.

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43
Q

Attempt

A

act done with intent to commit a crime

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44
Q

Can solicitation and attempt be charged in addition to the actual crime?

A

No - they merge into the crime.

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45
Q

Can conspiracy be charged in addition to actual crime?

A

Yes. No merger.

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46
Q

Accomplice liabilities: who are the parties

A

principal in first degree, accomplice, accessory before the fact, accessory after the fact.

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47
Q

Accomplice

A

Aids, abets, assists, encourages carrying out a crime and is present physically or constructively.

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48
Q

Is an accomplice liable for the crime he assisted or encouraged?

A

Yes

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49
Q

Are accomplices liable for additional crimes commited by principal in course of committing intended crime?

A

Yes, as long as the other crimes were forseeable

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50
Q

Accessory before the fact

A

aids/abets/encourages but NOT present at time of crime

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51
Q

accessory after the fact

A

knowingly gives assistance to felon for purpose of helping him avoid apprehension

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52
Q

can an accomplice withdraw before crime committed?

A

Yes but if already assisted must render prior assistance ineffective

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53
Q

What are the defenses?

A

Self-defense, defense of others, defense of property, insanity, intoxication, necessity, mistake, impossibility, entrapment

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54
Q

What are the limits on the right to self defense against unlawful force?

A

Must use reasonable force = deadly force only if reasonable belief that he faces deadly force against him. No duty to retreat.

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55
Q

Defense of others

A

Can use reasonable force to defend another when reasonably believes other person would be using the force, reasonable.

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56
Q

Is deadly force allowed to defend property?

A

No. reasonable amount of force is never deadly force.

57
Q

M’Naghten test

A

D must show he suffered mental disease causing defect in reasoning powers; didn’t understand nature/quality of act, or act was wrong.

58
Q

Irresistible Impulse test

A

insanity defense - D unable to control conduct due to mental illness

59
Q

Durham

A

Conduct was product of mental illness (but for - broader)

60
Q

Model Penal Code Insanity Defense

A

Lacked substantial capacity to appreciate criminality of conduct or confirm conduct to requirements of law.

61
Q

Is self induced intoxication a defense to specific intent crimes?

A

Yes (First Degree Murder, assault, incomplete crimes, theft crimes) - intoxication may have prevented D from formulating requisite intent.

62
Q

Defense: involuntary intoxication

A

Treated as illness. Negates intent to commit crime.

63
Q

Defense: Necessity

A

May e defense if D reasonably believed commission of the crime necessary to avoid imminent and greater injury to society than that involved in crime. (objective standard.

64
Q

Can mistake of fact negate a specific intent crime?

A

Yes.

65
Q

Can mistake of fact negate a malice crime?

A

Yes

66
Q

General intent crime

A

Crimes that require only intent to perform act (battery, rape, kidnapping, false imprisonment); motive immaterial

67
Q

Specific Intent Crime

A

Defendant committed actus reus for very purpose of causing the harm that law criminalizes (FIAT)

68
Q

What are the malice crimes?

A

common law murder, arson

69
Q

Is ignorance of law a defense?

A

Generally no

70
Q

Is factual impossibility a defense?

A

Generally no (accidentally shooting someone with unloaded gun; still guilty of attempt)

71
Q

Is legal impossibility a defense?

A

Yes. You thought you were doing something illegal, but not illegal, so no criminal act was committed.

72
Q

Defense: Entrapment

A

LEO or cooperator induces person to commit crime he wasn’t otherwise predisposed to commit.

73
Q

mens rea

A

requisite intent

74
Q

actus reus

A

the requisite act

75
Q

How can Intent to Kill or Intent to Cause Great bodily harm be reduced to manslaughter?

A

Heat of passion/self defense

76
Q

How can Depraved heart murder be reduced to manslaughter?

A

Voluntary Manslaughter: Gross negligence,

77
Q

How can felony murder be reduced to manslaughter?

A

Involuntary Manslaughter - death in commission of misdemeanor or non FMR felonies

78
Q

Fourth Amendment

A

Protects individuals against unreasonable searches and seizures of property and against unlawful arrest.

79
Q

Is a warrant required for arrest?

A

Generallyif person is arrested in his home.

80
Q

Is probable cause required for a warrant?

A

Yes -

81
Q

What is probable cause?

A

Reasoanble belief that person violated the law

82
Q

Requirement: Automobile stop

A

Reasonable suspicion of wrongdoing based on objective standard.

83
Q

Requirement for checkpoints/roadblock

A

test for compliance with laws related to driving or immigration; stops must be based on neutral, articulable standard.

84
Q

can police stop and frisk individuals without arrest?

A

Yes

85
Q

When is a warrant required for search and seizure

A

Search warrant is required for search and seizure of property located where one has reasonable expectation of privacy.

86
Q

Is there a reasonable right to privacy for home/garage?

A

Yes

87
Q

right to privacy for areas outside home held out to the public?

A

No

88
Q

What do courts consider in determining whether areas outside the home have reasonable expectation of privacy?

A

Proximity to home, enclosure, nature of use of structure, steps taken to protect privacy in the area

89
Q

Sensory enhancing technology violate privacy?

A

Yes

90
Q

Binoculars/telescopes (available to public) violate privacy?

A

No

91
Q

Eavesdropping?

A

Electronic - no. Listening through walls OK.

92
Q

Rules for dog sniffing

A

luggate at airports, cars during legit traffic stop for reasonable time. Cannot be used to sniff homes without warrant or warrant exception.

93
Q

Requirements for a valid warrant

A

Based on probable cause, Issued by neutral magistrate, description of premises and items to be seized, knock and announce before execution.

94
Q

How is probable cause required established to obtain a warrant?

A

items to be searched connected with criminal activities, will be found in place to be searched.

95
Q

Exceptions to the warrant requirement

A

Search incident to lawful arrest, contraband in plain view, probable cause to search automobile, consentm, exigent circumstances (prevent injury to persons, destruction of evidence, hot pursuit); stop and frisk

96
Q

Rules for search of : Search incident to lawful arrest

A

area within arrestee’s immediate control. If reasonable belief bthat other dangerous individuals may be present - protective sweep; Car: if reasonable to believe arrestee might access vehicle at time of search or vehicle includes evidence of offense causing arrest.

97
Q

Rules for stop and frisk

A

Police have reasonable suspicion of criminal activity. . Can include pat down search of outer clothing for weapons if suspect appears dangerous, can seize contraband if identity is immediately apparent

98
Q

Fifth Amendment

A

Miranda, Right to Counsel, right against self incrimination, double jeopardy, due process

99
Q

to what kind of interrogations does miranda apply?

A

Custodial interrogations

100
Q

When is a suspect in “custody”- Miranda

A

When reasonable person would believe he isn’t free to leave.

101
Q

Definition: Interrogation

A

words or actions reasonably likely to elicit incriminating response.

102
Q

Must a suspect be aware of of custodial interrogation?

A

Yes - interrogation doesn’t occur when suspect speaks to undercover agent/informant.

103
Q

Is there a public safety exception for Miranda?

A

Yes

104
Q

Rules for re-mirandizing

A

police can’t re-mirandize in attempt to get suspect to speak unless there has been sufficient break in custody.,

105
Q

Can suspect waive miranda rights?

A

Yes, only if voluntarily, knowingly, and intelligently made.

106
Q

Can confession obtained in violation of miranda be used in prosecution’s case in chief? For impeachment

A

case in chief no, impeachment yes. (different from coerced confessions)

107
Q

What kind of evidence is covered under 4th amendment right against self incrimination?

A

Testimonial/communicative. Physical evidence - fingerprint, lineup, blood samples, NOT protected.

108
Q

when does double jeopardy attach?

A

jury empaneled and sworn in, or first witness sworn in for bench trial

109
Q

5th amendment due process

A

confessions voluntary, identifications not unnecessarily suggestive

110
Q

Sixth Amendment

A

Right to effective counsel at any post-charge line-up or show-up, including sentencing; Right to confront adverse witnesses; right to jury trial (sentence 6+months), right to speedy trial; right to preliminary hearing

111
Q

Does right to counsel need to be invoked for each offense charged?

A

Yes

112
Q

Standard for ineffectiveness of counsel:

A

counsel didn’t act as reasonably competent attorney, and but for deficiency, result would have been different.

113
Q

Can prosecution admit testimonial statements by third person:

A

Only if declarant available for cross exam either at time statement made or during trial

114
Q

Testimonial v. nontestimonial statements - right to confront

A

nontestimonial when made in course of police interrogation circumstances indicate the primary purpose of interrogation is to enable police assistance to meet ongoign emergency; testimonial - no ongoing emergency, and prpose of interrogation to establish or prove past events potentially relevant to later criminal prosecution.

115
Q

Codefendant: one defendant confesses. Can statement be used against other defendant?

A

No, unless statement can be redacted or co-D takes stand and subjects himself to cross examination.

116
Q

How many people need to be on a jury?

A

6 to 12

117
Q

Unanimous verdict required?

A

federal criminal trial, or when there are only six jurors.

118
Q

Right to a speedy trial: factors

A

length of delay, reason for delay, prejudice, time and manne D asserted right

119
Q

Right to preliminary hearing

A

D who has plead not guilty has right to preliminary hearing if probable cause not established.

120
Q

Exclusionary Rule

A

Prosecution prohibited from introducing evidence obtained in violation of defendant’s 4th, 5th, 6th Amendment rights

121
Q

Exclusionary Rule: whose constitutional rights must have been violated?

A

Defendants

122
Q

Fruit of the poisonous tree and exceptions

A

evidence found as a result of original wrongfully obtained evidence inadmissible EXCEPT (Could have been obtained from independent source, Inevitable Discovery, Purged Taint)

123
Q

Can illegally obtained evidence be used to impeach defendant?

A

Yes

124
Q

Can illegally obtained evidence be used to impeach witnesses?

A

No

125
Q

Doess exclusionary rule apply to civil proceedings, grand juries, parole proceedings?

A

No

126
Q

Good faith warrant exception

A

If officer acts in reasonable reliance on facially valid search warrant, warrant found to be unspported by probable cause - exclusionary rule doesn’t apply. (except - affiant knew info providing in affidavit false, lack of probable cause such that magistrate’s reliance on affidavid uhnreasonable; warrant defective on its face)

127
Q

Must confessions be voluntary?

A

Yes

128
Q

Is a confession obtained by nongovernmental coercion admissible?

A

Yes

129
Q

Is confession by mentally ill person admissible?

A

Yes

130
Q

Is confession obtained by police coercion admissible during case in chief, or used to impeach defendant?

A

No

131
Q

Due process in identification

A

Defendant’s due process rihts violated if ID of D is unnecessarily suggestive.

132
Q

Plea bargain

A

must be made voluntarily, intelligently, in open court.

133
Q

Does prosecutor have obligation to agree to a plea?

A

No

134
Q

Can judge refuse to accept guilty plea if he thinks D didn’t commit crime?

A

Yes

135
Q

8th Amendment

A

Bail can’t be excessive or unduly high; Cruel and Unusual punishment prohibited.

136
Q

Cruel and Unusual Punishment

A

Penalty imposed on defendant cannot be grossly disproportionate to serious of crime

137
Q

D cannot be sentenced to death if

A

Defendant minor at time of the crime, defendant mentally retarded.

138
Q

Can a minor be sentenced to mandatory life without parole?

A

No

139
Q

Do victim impact statements during penalty violate defendants 8th amendment right?

A

No

Rules for CA Bar Exam (Attack Sheet) (15 decks)

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