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MBE 1 Misses > Criminal Law and Procedure > Flashcards

Criminal Law and Procedure Flashcards

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1
Q

Larceny

A

Unlawful taking and carrying away of a victim’s personal property with the intent to permanently deprive the victim of that property

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2
Q

Robbery

A

Larceny from the person or presence of another by force or intimidation

Threat must be of immediate serious physical injury to the VICTIM, CLOSE FAM MEMBER, or OTHER PERSON PRESENT

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3
Q

Embezzlement

A

(1) Conversion of lawfully possessed property,
(2) that belongs to another,
(3) with the specific intent to defraud the owner of that property

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4
Q

Larceny by trick

A

knowingly MISREPRESENTING a material fact to obtain POSSESSION of another’s property with the specific intent to PERMANENTLY DEPRIVE the owner of that property

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5
Q

False Pretenses

A

(1) knowingly misrepresenting a material fact,
(2) to obtain title to another’s property,
(3) with the specific intent to permanently deprive the owner of that property

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6
Q

Accomplice liability

A

A person who:

(1) intentionally AIDS or ENCOURAGES the principal before or during a crime
(2) with the specific intent that crime be completed

*Must intend that her acts will encourage the criminal aim

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7
Q

Pursuant to the 8th Amendment prohibition against cruel and unusual punishment, the death penalty cannot be imposed on an accomplice to felony murder who:

A

did not kill or intend to kill UNLESS:

(1) the accomplice significantly participated in the underlying felony, and
(2) acted with reckless indifference to human life

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8
Q

Common law murder requires:

A

The unlawful killing of another committed with malice aforethought

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9
Q

Malice aforethought can be shown by any of the following:

A

(1) intent to kill,
(2) intent to inflict serious bodily injury,
(3) reckless indifference to an unjustifiably high risk of human life (depraved heart), or
(4) intent to commit certain felonies

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10
Q

Under the MPC test for insanity, the prosecution:

A

Has the burden of proving the defendant’s sanity beyond a reasonable doubt once a defendant has put his/her sanity at issue

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11
Q

Under the M’Naghten test, a defendant is not guilty if:

A

He does not know the nature, quality, or wrongfulness of his act because of his mental disease

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12
Q

Can a civilian assert the defense of arrest?

A

Yes

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13
Q

Plain feel exception

A

If an officer conducting a valid frisk feels, with an open hand, an object that has physical characteristics that make its identity immediately obvious as a weapon, contraband, or evidence of a crime, then the officer may seize that object

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14
Q

The exclusionary rule generally does not apply to:

A

Civil actions

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15
Q

When a conviction is reversed based on insufficiency of evidence, is jeopardy implicated?

A

Yes. The prosecution is barred from retrying the D for the same offense.

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16
Q

In MPC jurisdictions, voluntary intoxication is a defense to:

A

crimes with a mental state that is “purposefully” or “knowingly” AND the intoxication negates the mental state

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17
Q

Felony Murder rule

A

D kills another during the commission, or attempted commission, of an inherently dangerous felony

Agency theory: D is responsible for deaths caused by co-felons

Proximate cause: D is responsible for deaths caused by anyone

Inherently dangerous felonies: BARRK (burglary, arson, robbery, rape, kidnapping)

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18
Q

1st Degree Murder

A

Deliberate and premeditated murder or felony murder

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19
Q

Voluntary manslaughter

A

Intentional killing committed: (1) in response to adequate provocation and (2) in the heat of passion

*Rekindling doctrine could be applicable

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20
Q

Involuntary manslaughter

A

Unintentional homicide committed with criminal negligence or during an unlawful act

Criminal negligence is grossly negligent action that puts another person at significant risk of serious bodily injury

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21
Q

Kidnapping

A

Unlawful confinement of a person against the person’s will coupled with either (1) the movement, or (2) the hiding of that person

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22
Q

Solicitation

A

Enticing, encouraging, requesting, or commanding another person to commit a crime with the intent the other person commits the crime

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23
Q

Conspiracy (majority says you need an overt act)

A

An agreement between two or more persons (bilateral) to accomplish an unlawful purpose with the intent to accomplish that purpose

Common law: no overt act required
Majority/fed/MPC: need an overt act unless first or second degree felony

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24
Q

Attempt

A

Substantial step toward commission of a crime WITH the specific intent to commit the crime

*Merges with completed crime

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25
Q

Ineffective Assistance of Counsel

A

Claimant must show:

(1) Counsel’s representation fell below objective standard of reasonableness; and
(2) Counsel’s deficient performance prejudiced D, resulting in the reasonable probability that the outcome would have been different

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26
Q

Juries of only six:

A

Must return unanimous verdicts, but in juries of seven or more jurors, unanimity is not required

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27
Q

Can a D be charged/convicted for the same acts in multiple sovereigns (states, federal court)

A

Yes.

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28
Q

Voluntary intoxication is a defense to:

A

Specific intent crimes UNLESS the intent was formed before intoxication

29
Q

Brady Rule + nondisclosure

A

A prosecutor has an affirmative duty to disclose to the D any material evidence favorable to the D

  • Applies even when prosecutor is unaware of the evidence but police/state actor are aware
  • Nondisclosure of such evidence does not violate the D’s DPC rights unless the failure to disclose causes prejudice against the D
30
Q

In order to invoke the right to remain silent, D must:

A

make a specific, unambiguous statement asserting his desire to remain silent

31
Q

Under the Fifth Amendment Privilege Against Self-Incrimination, a grant of USE immunity by a state or the federal government:

A

Prevents the use of testimony given under that grant by another U.S. jurisdiction in prosecuting that witness

32
Q

Under the Fifth Amendment Privilege Against Self-Incrimination, a grant of TRANSACTIONAL immunity by a state or the federal government:

A

Protects the individual from prosecution for crimes related to (committed in furtherance of the scheme about which the individual testified) the individual’s testimony

33
Q

Traffic stops generally are:

A

not considered custodial because they generally are brief and temporary

34
Q

Where a mistrial is declared despite the D’s opposition:

A

D cannot be retried unless the mistrial is due to a manifest necessity (hung jury constitutes manifest necessity)

35
Q

There is no expectation of privacy in one’s physical characteristics, therefore:

A

A demand for a voice sample is not a search

36
Q

DNA identification of arrestees

A

When officers make an arrest supported by probable cause and they bring the suspect to the station to be detained in custody, taking and analyzing a CHEEK SWAB of arrestee’s DNA is a legit police booking procedure that is reasonable under the Fourth Amendment

*Cheek swab is considered a search, unlike a demand for a handwriting or voice sample in which a person does not have a reasonable expectation of privacy

37
Q

Under the 6th Amendment’s right to a speedy trial, the time period for measuring this right commences:

A

at the time of arrest OR formal charge, whichever comes FIRST

*D need not know about charges against him for right to attach

38
Q

Due process requires prosecution to prove:

A

all elements included in the definition of the offense of which D is charged BEYOND A REASONABLE DOUBT

39
Q

Duress is never a defense to:

A

Intentional murder

40
Q

As a part of a valid traffic stop, an officer can:

A

order a passenger to exit the vehicle. The officer can gain reasonable suspicion sufficient to justify a terry frisk through seeing a bulge on the passenger while the passenger is exiting the vehicle

41
Q

Is a warrantless search valid if it is reasonable in scope and made incident to a lawful arrest?

A

Yes

42
Q

May prosecution comment on D’s exercise at trial of his privilege against self incrimination?

A

No, prosecution may not comment on the D’s exercise at trial of his privilege against self incrimination because such a comment constitutes an impermissible shifting of the burden of proof onto the defendant

43
Q

Defenses against felony murder

A
  • Successfully establish valid defense to underlying felony
44
Q

Duress

A

Third party’s unlawful threat that causes D to reasonably believe that the only way to avoid death or serious bodily injury to himself or another is to violate the law, and that causes D to do so

*Valid for all crimes EXCEPT FOR INTENTIONAL MURDER

45
Q

A warrant to arrest an individual implicitly authorizes:

A

Entry into the arrestee’s home to serve the warrant if the police have probable cause to believe that the arrestee is present

46
Q

When intent is required, the criminal act must occur:

A

As a result of that intent

47
Q

To legally withdraw, an accomplice must:

A

(1) repudiate prior aid,
(2) do all that is possible to countermand prior assistance, and
(3) do so before the chain of events is in motion

48
Q

Once a custodial interrogation begins and the individual has not been informed of the Miranda rights:

A

Anything the defendant says is inadmissible until Miranda is administered

49
Q

Defendant are protected from intentional and prejudicial pre-accusation delay by:

A

the due process clause and federal statutes

Delay resulting from an investigation conducted in good faith does not violate the due process clause

50
Q

Under the Double Jeopardy Clause of the 5th Amendment:

A

A defendant who has been acquitted of a crime generally may not be retried for the same crime

*A grant of demurrer of a motion to dismiss in favor of the accused for prosecution’s failure to prove elements of a crime at the close of state’s case is equivalent to an acquittal

51
Q

For double jeopardy purposes, under the Blockburger rule:

A

Whether charges constitute the same offense depends on whether each charge requires proof of an element that the other does not

52
Q

Arson (CL)

A

Malicious burning of another’s dwelling

  • There must be some damage, such as charring
  • Smoke damage alone is insufficient
53
Q

Receipt of Stolen Property

A

(i) receiving control of stolen property,
(ii) with knowledge that the property is stolen, and
(iii) intent to permanently deprive the owner of the property

54
Q

Under the attenuation principle:

A

The discovery of of the valid arrest warrant can attenuate the link between an improper stop and the discovery of evidence

55
Q

Burden for Waiver of Miranda Rights

A

Prosecution bears burden of establishing defendant waived his Miranda rights by preponderance of the evidence

56
Q

Right to Counsel on Discretionary Appeal

A

State is not constitutionally required to provide an indigent defendant with counsel in order to pursue a discretionary appeal

57
Q

Who may determine whether sentences for separate crimes may run consecutively?

A

Judge

58
Q

In a criminal case, a judge may order a directed verdict only:

A

For acquittal; the power to convict is reserved to the jury

59
Q

Privilege Against Compulsory Self-Incrimination

A

Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself

*Does not apply to entities

60
Q

Fifth Amendment in Police Interrogation

A

An incriminating statement obtained as a result of custodial interrogation may not be used against the suspect at the subsequent trial unless the police provided procedural safeguards effective to secure the privilege against self-incrimination

61
Q

The Sixth Amendment Right to Counsel

A

Applies at all critical stages of a prosecution after formal proceedings have begun

62
Q

Exclusionary Rule

A

Evidence obtained as a result of an illegal search should be suppressed at trial

*If evidence from an illegal search is used to acquired a warrant, evidence discovered while executing that warrant should also be suppressed

63
Q

Bruton Rule

A

Co-defendant’s out of court statement admissible if:

(1) co-defendant testifies,
(2) out-of-court statement redacts reference to co-defendant, OR
(3) statement used to rebut claim of coerced confession & jury is instructed as such

64
Q

Wharton Rule

A

If a crime requires two or more participants, there is no conspiracy unless more parties than are necessary to complete the crime agree to commit the crime

65
Q

When does a defendant have to the right to assistance of counsel?

A

At any trial that results in a sentence of incarceration, even when that sentence is suspended

66
Q

6th Amendment Right to Counsel of Own Choosing

A

A criminal D’s right to be represented by an attorney of his own choosing is subject to limitations, including the guarantee of an effective advocate for a criminal defendant

*Judge DQ an attorney if there is serious potential for COI

67
Q

Guilty Pleas - Judge’s Record

A

The record must reflect that the judge has determined that the defendant knows and understands:
(i) the nature of the charges and their essential elements,
(ii) the consequences of the plea, and
(iii) the rights the defendant is waiving.
Judge must also determine that the plea did not result from force or improper threats

68
Q

Checkpoint for the purpose of finding witnesses to a crime is not per se unreasonable as long as:

A

(i) the checkpoint stop’s primary law enforcement purpose is to elicit evidence to help them apprehend not the vehicle’s occupants but other individuals;
(ii) the stop advanced a public concern to a significant degree; and
(iii) the police appropriately tailored their checkpoint stops to fit important criminal investigatory needs and to minimally interfere with liberties protected by Fourth Amendment

MBE 1 Misses (7 decks)

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