Criminal Law and Procedure Flashcards
1
Q
What is a Crime and how does it differ from a Tort?
A
Crime = act which violates a public law put in place by local, state, and/or federal governments
Tort = civil wrong, action against an individual that requires compensation or restitution
2
Q
What is Criminal Law and the two Primary Crime Classifications?
A
Criminal Law:
- Prosecution by government of individual accused of committing a crime
- Suit is brought by prosecutor working for state in which the crime was committed
- Accused person may be incarcerated, fined, or both
- Proof for each element of each charged offense beyond a reasonable doubt
- Defines crimes, sets procedures for arrest, searches & seizures, and interrogations, establishes the rules for trials, specifies the punishments for offenders
- Based on common law (precedent and stare decisis)
Two Primary Crime Classifications:
- Felony
- Misdemeanor
3
Q
What are Felonies?
A
Serious offenses such as rape and murder
4
Q
What are Misdemeanors?
A
Less serious offenses such as petty theft
5
Q
What is Criminal Law Jurisdiction?
A
Determines which court has the right and power to govern a particular type of crime and/or where it was committed
6
Q
When does Federal Criminal Jurisdiction commonly arise?
A
When crime occurred on:
- Land owned/controlled by federal government (national parks, military bases)
- Ship flying the American flag, even in foreign waters
- Power granted by Constitution (taxation, interstate commerce, crime crossed state lines)
- Some crimes in foreign countries if intended to affect U.S. (cybercrimes, terrorist attacks)
- Offenses on Native American reservations
7
Q
When does state criminal jurisdiction commonly arise?
A
Crimes occurring within state’s borders or within 3 miles of coastline
8
Q
When does Concurrent Criminal Jurisdiction commonly arise?
A
More than one court has power to decide case (more than one state, both state & federal) - the 1st court to exercise jurisdiction over the defendant usually keeps the case
9
Q
What is Regulatory Law?
A
- Branch of public law
- U.S. governmental agencies and commissions (FTC, IRS, EPA), make rules that are semi-legislative or semi-judicial
- Decision making is governed by administrative rules related to a variety of crimes
- Investigate violations and impose sanctions
10
Q
What is Case Law?
A
- Holding in an appellate court case has the force of law
- When appellate court decides a legal issue, the doctrine of precedence (stare decisis) mandates that future cases must follow that decision
11
Q
What is Ex Post Facto Law (criminal law)?
A
Law passed after the occurrence of a fact or commission of an act which retrospectively changes the legal consequences or relations of such fact or deed
Seek to punish the commission of a crime that occurred before the law took effect
12
Q
What is the Void for Vagueness Doctrine (criminal law)?
A
Requires criminal statute to define crime with sufficient definiteness so that ordinary people can understand what conduct is prohibited
Must not encourage arbitrary & discriminatory enforcement
13
Q
What is a Bill of Attainder (criminal law)?
A
Legislative act, directed against designated person, pronouncing that person guilty of an alleged crime (usually treason) without trial or conviction
Prohibited by the U.S. Constitution
14
Q
What is the Plain Meaning Rule (criminal law)?
A
When statute language is plain and clear, court must interpret it as written, even if the court does not agree with the interpretation
Statute is to be interpreted according to ordinary meaning of the language unless result would be cruel or absurd
Keeps courts from taking sides in legislative/political issues
15
Q
What is Strict Construction, Rule of Lenity, and Ambiguous Statute (criminal law)?
A
Strict Construction = Based on a literal or technical understanding of the words used
Rule of Lenity = ambiguity in a criminal statute should be resolved in favor of the Defendant
Ambiguous Statute = capable of two or more equally reasonable interpretations
16
Q
What is the Effect of Statute Repeal and a Saving Clause (criminal law)?
A
Effect of Statute Repeal = prevents prosecution of earlier violations if prosecution hasn’t yet commenced at the time of the repeal; repeal can’t be used to free person who’s already been prosecuted & convicted under the repealed statute
Saving Clause = restriction in repealing act intended to save rights, pending proceedings, penalties, etc. from eradication which would result from an unrestricted repeal (carve-outs)
17
Q
What is the Fourth Amendment and the rights it provides (criminal law)?
A
Fourth Amendment = Protects personal privacy and freedom from unreasonable government intrusion into their persons, homes, businesses, and property.
Search and Seizure Provision = protection from stop/arrest, reasonable expectation of privacy, requires valid search/ arrest warrant and probable cause
Probable Cause Provision = requirement that police have facts & evidence to arrest someone, conduct a search, or seize property related to an alleged crime, warrant granted by judge
18
Q
What is the Fifth Amendment and the rights it provides (criminal law)?
A
Fifth Amendment = provides that individual can’t be prosecuted or punished without due process
Due Process = right to be served with notice, to be heard, and to defend oneself
Right to Remain Silent = right to avoid self-incrimination
Double Jeopardy = prohibits courts from trying person again for the same crime after they have been tried and found innocent
19
Q
What is the Sixth Amendment and the rights it provides (criminal law)?
A
Provides that a defendant has the right to: (trial rights)
- trial judged by jury of their peers in state & district where crime committed
- know the nature of the charges
- have legal representation
- face witnesses
- represent themselves if mentally competent
- public and speedy trial
20
Q
What is the Eighth Amendment and the rights it provides (criminal law)?
A
Rights mostly apply to punishment phase of criminal justice system, but also if individual’s injured at the hands of government officials: (cruel & unusual punishment-physical & economic)
- right to seek damages and other remedies by filing civil rights cases for physical harm or deliberate indifference which can constitute cruel and unusual punishment
- protection from excessive bail & fines which may be considered cruel & unusual punishment
- protection from certain types of death penalties (electric chair/gas chamber) or excessive prison sentences which may be considered cruel and unusual punishment
21
Q
What is the 14th Amendment and the rights it provides (criminal law)?
A
Provides civil rights:
- anyone born in the U.S. is legal citizen, including former slaves
- illegal to deny a person equal protection under the law
- constitutional right to life, liberty, and property that cannot be denied by the government
- right to due process, person’s legal rights must be respected when accused of a crime
22
Q
What are the essential elements of a crime (four basic elements that must be proven before someone can be charged)?
A
Actus Reus (physical action)
Mens Rea (intent)
Causation
Social Harm
23
Q
What is Actus Reus, Legal Duty to Act, and Act?
A
Physical or guilty act or unlawful omission
Government must prove that accused performed a physical act that caused social harm with the intent to cause that harm or defendant failed to act and had duty to act
Legal Duty to Act - by statute, contact, relationship, volunteering, creation
Act - voluntary, bodily movement
24
Q
What is Mens Rea and Specific, General, or Transferred Intent and Strict Liability?
A
Mental or guilty state - the intent of the Defendant at the time of the crime
Specific Intent = crimes defined to require specific intent to accompany actual crime such as first-degree murder (premeditation), assault (intent to commit), attempt (intent to complete a crime), and larceny (intent to permanently deprave a person of their property
General Intent = inferred when accused knowingly commits crime and is aware of its prohibited result - all crimes are general intent crimes unless they are specific or strict liability crimes
Transferred Intent = occurs when there’s “collateral damage” in a crime (ex. innocent bystanders killed in shootout and bystander wasn’t the defendant’s target)
Strict Liability = acts which produce outcomes that are punishable regardless of the state of mind (ex. statutory rape, selling alcohol to a minor)
25
What is Causation?
Defendant's act must be a proximate cause of the resulting harm; the act committed caused the end harm
26
What is Social Harm?
A harmful result caused, both factually and proximately, by the defendant's act
Harm is generally the result of the act was committed, such as hitting someone or stealing
27
What are the four states of mind (and their definitions) for which criminal liability may be imposed according to the Model Penal Code (MPC)?
- Purposefully = consciously desires conduct to cause a particular result
- Knowingly = aware that conduct is almost certain to cause a particular result
- Recklessly = aware that conduct poses a risk that might cause a particular result
- Negligently = should be aware that conduct poses a risk that might cause a particular result
MPC also assigns specific state of mind to each element of a crime
Intoxication is a defense if it negates mens rea (state of mind-intent) unless crime of recklessness then unawareness of the risk due to voluntary intoxication will not negate mens rea
28
What is the Concurrence Theory of Actus Reus and Mens Rea?
Retroactive or retrospective application of one of the criminal elements cannot be used to prove guilt - the act and state of mind must occur in unison
29
What are the Classification of Crimes and their definitions?
- Malum in se (wrong in itself) = crime that's inherently evil such as rape, murder, and larceny or other crimes of moral turpitude (departure from social standards that would shock community)
- Malum prohibitum = crime that's wrong because the legislature says so, like traffic violations
- Treason = attempt to overthrow the government or betray the government in favor of a foreign power - person can be convicted of treason only by the testimony of two witnesses or by confession in open court
- Capital Crime = crime for which the penalty may be death, often classified as felonies
- Felony = crime for which the maximum penalty may be death and minimum may be imprisonment for one or more years including murder, rape, manslaughter, robbery, sodomy, larceny, arson, mayhem, and burglary (MR. & MRS. LAMB)
- Misdemeanor = crime for which maximum penalty may be imprisonment for less than one year or statutory violations for which the punishment may be a fine
30
What is Common Law Murder and Malice Aforethought?
Common Law Murder = Unlawful killing of a human being with malice aforethought
Malice Aforethought = if person possesses one of the four states of mind:
- Intent to kill
- Intent to inflict great bodily harm
- Extreme recklessness and disregard for human life (also known as "depraved heart")
- Intent to commit an inherently dangerous felony
31
What is Common Law Voluntary Manslaughter?
Unlawful killing of a person without malice during a sudden heat of passion due to reasonable provocation, aka "passion killing"
32
What is Common Law Involuntary Manslaughter, Misdemeanor Manslaughter Rule, and Year and a Day Rule?
Common Law Involuntary Manslaughter = Death caused by criminal negligence (driving under influence of alcohol) or death caused by unlawful act (waving around a gun and someone dies of a heart attack because of the stress)
Misdemeanor Manslaughter Rule = treats unintended killing during misdemeanor as a manslaughter
Year and a Day Rule = old common law requirement that death of the victim must occur within one year and one day from the infliction of the injury
33
What is a First-Degree Felony Murder?
Death/killing that occurs during the commission or attempted commission of certain felonies (arson, kidnapping, robbery, burglary, rape) - defendant must be found guilty of underlying felony
34
What is a Second-Degree Felony Murder?
Involuntary manslaughter, intentional killing without premeditation and deliberation - passion killings or killings that occur while committing a felony other than those in first-degree felony murder
35
What is Common Law Rape, Statutory Rape, Incest, and Obscenity?
Common Law Rape = Forced sexual intercourse by a male on a female who is not his wife
Statutory Rape = Intercourse with an underage victim - neither mistake nor consent is a defense
Incest = marriage or a sexual act occurs between people who are closely related, usually a felony
Obscenity = sale, publication, or display of materials that appeals to a salacious sexual audience and involves patently offensive sexual conduct - lacks literacy, artistic, political, or scientific value
36
What is Statutory Rape?
37
What is Assault?
Aka "attempted battery", intentional attempt, using force or violence, to injure or harm another person, there must be a reasonable fear in the victim's mind of imminent bodily harm
Simple Assault = misdemeanor
Aggregated Assault = intent to create more serious crimes, such as assault with intent to commit murder or rape
38
What is Battery?
Unlawful (without consent) touching, which may involve an application of force or result in bodily injury but can be an offensive touching and doesn't have to be direct touching - it can be applied by means of another force or by a substance put in motion by defendant (ex. causing victim to ingest poison or causing dog to attack victim)
39
What is Theft?
Crimes involving depravation of another's property, including larceny, embezzlement, bad checks, extortion (blackmail)
40
What is Arson?
Purposeful burning of a structure, or land, that endangers other people or property
41
What is Burglary?
Entering any structure with the intent to commit a felony or theft offense inside
42
What is Larceny?
Trespassing and taking away personal property of another with intent to permanently deprive the individual of that property which can include written documents, gas, and electric
Larceny by Trick = defendant obtains possession of property by intentionally making a false statement to the victim
43
What is Embezzlement?
Defendant fraudulently or unlawfully converts an owner's entrusted property for the defendant's own use, covertly misappropriates the assets for personal gain, requires intentional conversion with the intent to defraud
44
What are False Pretenses?
Obtaining title by fraud (sale or trade transaction) - victim must've been deceived by, or acted in reliance upon, a misrepresentation
Obtaining title to property of another, by an intentional (or knowing) false statement of past or present fact, with intent to defraud the other
45
What is Robbery?
Taking personal property of another by force or intimidation with intent to permanently deprive other person of the property (aggravated form of larceny), felony
46
What is Forgery?
Creating false document or altering existing document with intent to defraud
47
What are Cybercrimes Against Property and Cybercrimes Against Government?
Cybercrimes Against Property = online crimes which occur against property, such as hacking, virus transmission, computer vandalism, and copyright infringement
Cybercrimes Against Government = online crimes which occur against government, such as hacking, accessing confidential information, cyber warfare, cyber terrorism & pirated software
48
What is Conspiracy, Wharton's Rule, Husband & Wife Rule, and Two or More Rules?
Conspiracy = Agreement b/w two or more persons to commit a crime at some time in the future
Wharton's Rule = Need one more person than required to commit conspiracy of crime (ex. adultery required two people; conspiracy to commit adultery requires three people)
Husband & Wife Rule = Under common law, husband & wife were considered one person so they couldn't conspire to commit a crime; nowadays, they may legally act independently of each other so they may commit conspiracy
Two or More Rules = For conspiracy to exist, two or more persons must b e involved
49
What is the Mann Act?
Felony to engage in interstate or foreign commerce transport of any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose - intent was to address prostitution, immorality and human trafficking
50
What is the Racketeer Influenced and Corrupt Organizations Act (RICO)?
Directed toward conspiracy and fraud, designed to combat organized crime in the U.S., allows prosecution and civil penalties for racketeering activity performed as part of an ongoing criminal enterprise
51
What is Attempt?
Overt act coupled with specific intent to commit a crime
Has two elements: criminal intent and criminal act
52
What is Solicitation?
When defendant solicits, or seeks to engage, another to commit a crime, not the subsequent commision of a crime
53
What is Perjury, Subornation of Perjury, and Bribery?
Perjury = voluntary (knowingly) violation of an oath or vow either by swearing to what is untrue or by omission to do what has been promised under oath (truth is a complete defense to perjury)
Subornation of Perjury = when defendant convinces someone else to commit perjury (defendant's treated the same as the perjurer for the purposes of sentencing)
Bribery = the offering, giving, soliciting, or receiving of any item of value as a means of influencing the actions of an individual holding a public or legal duty (constitutes a crime and both the offeror and the recipient can be criminally charged)
54
What are Defenses Against the Crime?
- Justification
- Self-Defense
- Defense of Others
- Defense of Habitation
- Defense of Property
- Necessity (Lesser of Two Evils)
- Duress
- Mistake
- Entrapment
55
What is the Justification Defense?
When defendant who committed crime claims they did no wrong because committing the crime advanced some social interest or vindicated a right so important that it outweighs the wrongfulness of the crime
56
What are Non-Deadly Force, Deadly Force, Battered Woman Syndrome & Reasonable Belief, and Duty to Retreat in Self-Defense?
Non-Deadly Force = person may use such force as reasonably appears necessary to prevent the imminent use of unlawful force on that person, short of deadly force - no duty to retreat
Deadly Force = may only be used in self-defense when it reasonably appears necessary to prevent immediate death or significant injury - allowed if threat is imminent, response is necessary and deadly force is proportionate to the threat, not appropriate to use deadly force to defend objects unless person's also in danger
Battered Woman Syndrome & Reasonable Belief = during active confrontation, one can consider past incidents of violence to determine whether the current threat's deadly or non-deadly - generally not allowed in non-confrontational cases
Duty to Retreat = one must retreat rather than use deadly force unless the attacker is in the individual's home or business
57
What is Defense of Others?
Defendant has the right to use force in defense of another person if the defendant believes the victim had the legal right to use force in the victim's own defense
58
What is Defense of Habitation (the Castle Doctrine)?
Person's justified in using deadly force in defense of the person's home when:
- entry of the home is made in a violent manner and occupant reasonably believes use of force is necessary to protect he occupant
- another in the home or when occupant reasonably believes that force is necessary to prevent entry into the home by one who intends to commit felony in the home
59
What is Defense of Property?
Only non-deadly force may be used to defend one's property from unlawful interference - only permitted if the other person (other than the victim) applied use of force
60
What is Necessity (Lesser of Two Evils Defense)?
Defendant reasonably believed that defendant's conduct was necessary to avoid harm of self or society (ex trespasses on personal property to use phone and report rapidly spreading wildfire) - not available if defendant's at fault in creating the situation that requires the defendant to choose between two evils (balance of evils test)
61
What is Duress?
Threat of death or seriously bodily harm to a defendant or family member - must be immediate and defendant must be free from guilt
62
What is the Mistake Defense?
Any mistaken belief other than a mistake of law
63
What is Entrapment?
Criminal design originated with law enforcement and defendant was not predisposed to commit the crime
64
What are Criminal Capacity Defenses?
- Infancy
- Insanity
- Incompetency
- Diminished Capacity
- Intoxication
65
What is the Infancy criminal capacity defense?
Disprove liability for a crime by reason of the defendant's age - assumption that minors are incapable of forming criminal intent in the same manner as adults
Bars prosecution of children under 7 for crimes and presumptively precludes the prosecution of children 7 to 14 under adult criminal law system - children 7 to 14 are eligible for prosecution through juvenile justice system
66
What is the Durham Rule, M'Naghten Rule, and the Insanity Act as part of the Insanity criminal capacity defense?
Durham Rule = criminal defendant cannot be convicted of a crime if the act was the result of a mental disease or defect at the time of the crime (irresistible impulse test) - referred to as "product defect" rule, doesn't require medical diagnosis of mental illness
M'Naghten Rule = relies on whether criminal defendant knew the nature of the crime or understood right from wrong at the time it was committed, person lacked "substantial capacity" to appreciate the conduct or conform the conduct to the rule of law
Insanity Act = placed the burden on the defendant to prove insanity
67
What is Incompetency as a criminal capacity defense?
Test for competency is to determine if defendant's mentally aware of the nature of the charges against the defendant and whether defendant can assist the attorney in the defense - if not, the defendant cannot be tried, convicted, or punished
Ruling of incompetence delays criminal proceedings until the defendant regains competence
68
What is Diminished Capacity as a criminal capacity defense?
Defined by defendant's state of mind as required for a specific crime - recognizes different degrees and can be used to mitigate culpability and reduce charges
69
What is Intoxication, Voluntary Intoxication, and Involuntary Intoxication as a criminal capacity defense?
Intoxication = caused by ingesting substances such as alcohol, illegal drugs, and medicines
Voluntary Intoxication = provides that intoxication prevents the defendant from formulating the requisite intent and can be used to reduce charges (not a defense to a general intent crime)
Involuntary Intoxication = taking of intoxicating substance without knowledge of its nature, under duress, or under medical advice - valid defense exists if, due to involuntary intoxication, defendant was temporarily insane
70
What are the 5 Purposes of Punishment?
- Deterrance
- Incapacitation
- Rehabilitation
- Retribution
- Restitution
71
What are Reformation and Rehabilitation as purposes of punishment?
Reforming criminals by developing skills in prison to transform them into productive citizens
72
What are Restraint and Incapacitation as purposes of punishment?
Imprisonment to protect society from harm
73
What are Deterrence (Individual Deterrence & General Deterrence) as purposes of punishment?
Individual Deterrence = punishment to deter individual defendant from committing future crimes
General Deterrence = punishment to deter others from engaging in similar crimes due to fear of receiving similar punishment
74
What is Retribution as a purpose of punishment?
Retribution = punishment for revenge, make the punishment fit the crime
75
What is Restitution as a purpose of punishment?
Not a punishment or alternative to fines or sanctions, it's a debt owed to the victim of the crime - restitution's ordered to compensate victims for damages (expenses) that are the direct result of the crime
76
What are types of Unauthorized Practice of Law (UPL)?
- Holding Oneself Out as an Attorney = representing to the public that paralegal is attorney
- Representing Others = only attorneys can represent clients in deposition courtroom, formal arbitration, or mediation hearing; also UPL to negotiation on behalf of client if negotiation involves legal rights or responsibilities
- Preparing Documents = selecting the type of legal document a person should prepare or the act of providing information to fill in blanks in a legal document is considered providing legal advice
- Legal Advice = UPL for paralegal to advise someone regarding what legal actions to take pertaining to that individual's unique situation
- Limited Practice = paralegals may assist clients with legal needs and prepare legal documents under the supervision of an attorney
77
What is the Anatomy of a Criminal Case?
- Investigation of a Crime by the Police = gather evidence to identify suspect and support arrest, may require a search with probable cause
- Arrest of a Suspect by the Police = taking person into custody to hold that suspect until first court appearance
- Prosecution of a Criminal Defendant by District / U.S. Attorney = decide whether to charge person with crime, consider seriousness of the offense and strength of evidence
- Indictment by a Grand Jury or Filling of Information by Prosecutor = under FRCP, indictment required when prosecuting capital offense, standard for indicting a person for a crime is probable cause
- Arraignment by Judge = defendant appears in court and enters a plea - most common pleas are guilty and not guilty
- Pretrial Detention and/or Bail = detention - period of temporary custody prior to trial; bail - amount of money paid by defendant to ensure they'll show up for trial, if released pretrial
- Plea Bargaining b/w Defense Attorney and Prosecutor = defendant agrees to plead guilty to one or more charges in exchange for a charge reduction or sentence reduction
- Trial/adjudication of Guilt by Judge or Jury, with Prosecutor and Defense Attorney Participating = trial held before jury or judge, standard evidence for criminal conviction is guilt beyond a reasonable doubt (less than 100% certainty but more than high probability)
- Sentencing by a Judge = if accused's found guilty, judge sentences defendant - possible sentences include fine, probation, period of incarceration in correctional institution (jail or prison) or some combination of supervision in community and incarceration)
- Appeals Filed by Attorneys in Appellate Courts and then Ruled on by Appellate Judges = if appellate court reverses case, case returns to trial court for retrial - with reversal, original trial becomes moot, following reversal, prosecutor decides whether to refile or drop the charges, defendant can still be prosecuted later if statute of limitations hasn't run out
- Punishment and/or Rehabilitation Administered by Local, State, or Federal Correctional Authorities = release may be obtained by serving the maximum sentence mandated by a court or through early release, such as by parole or pardon
78
What is the Selective Incorporation Doctrine?
Requires state courts to apply nearly all the guarantees of the Bill of Rights in state criminal trials
79
What is a Complaint?
Establishes probable cause to believe that offense has been committed and that suspect/defendant committed it
80
What must be in an Arrest Warrant and how is it executed?
- Defendant name (or description if name's unknown)
- Offense charged in complaint
- Command that defendant be arrested and brought without unnecessary delay before judge
- Signed by judge
Executed by arresting defendant - warrant must be shown to defendant
81
How is a Summons served?
- Delivering to defendant personally
- OR-
- Leaving at defendant's residence or usual place of abode with person of suitable age and discretion residing at that location and by mailing a copy to defendant's last known address
82
What is Miranda v. Arizona?
Made it so that suspect in custody can't be interrogated without first being informed of:
- right to remain silent
- anything said can and will be used against them in court
- right to have attorney present
- if cannot afford an attorney, one will be appointed if they desire
Miranda rights may be waived, but prosecutor must prove that suspect did so voluntarily, knowingly, and intelligently
83
What are Search-and-Seizure Rights?
4th Amendment - protect against unreasonable searches and seizures by state or federal law enforcement authorities
However, law enforcement may disregard and conduct search if:
- probable cause to believe they can find evidence that suspect committed a crime and judge issues warrant
- OR-
- circumstances justify the search without a warrant first being issued
84
What is the Plain View Rule?
No objectively reasonable expectation of privacy if in plain view
85
What is the Exclusionary Rule?
If court rules that unreasonable search occurred, evidence seized can't be used as direct evidence against defendant in criminal prosecution
86
What is the Fruit of the Poisonous Tree Doctrine?
Not only is evidence that's the product of an illegal search inadmissible in court, but so is additional evidence that was derived from the initial evidence
87
What are the two categories of Border Searches?
- Routine = usually conducted at border, limited intrusion
| - Non-Routine = usually conducted on a reasonable suspicion and vary in technique and intrusiveness
88
What is a Police Report?
Provides information about the circumstances surrounding the arrest; however, police reports are considered hearsay in court
89
What is Hearsay and Hearsay Exceptions?
Out-of-court statement, used to proved the truth of the matter asserted, generally inadmissible in court, except:
- Business Records = records made in the normal course of business including records made by government agents such as police officers
- Refreshed Recollection = witnesses may be allowed to use written document to refresh their memory when testifying in court
- Past Recollection Recorded = when witness is unable to accurately recall an event, a writing that was made at the time when the memory of the event was fresh may be introduced as evidence
90
What is a Body-Worn Camera Policy?
Requires they be activated to record all contacts with citizens, while in the performance of official duties and to stay activated until the event is completed to ensure the integrity of the recording.
Body cam evidence is available to both the prosecution and the defense - must be relevant to the issues before the court and properly maintained to avoid any risk of tampering.
91
What must be stated in a Subpoena?
- court's name
- title of proceeding
- seal of the court
- command witness to attend and testify at time & place specified
May order witness to produce documents
92
What are Involuntary Confessions?
Confessions that are coerced, or involuntary - not admissible against defendants in criminal cases, event though they may be true, they violate due process & can't be used for any purpose
Legal standard is whether law enforcement used tactics that undermined suspect's ability to exercise free will - factors to be considered:
- location/time/length of questioning
- whether Miranda warnings were given
- whether police honored suspect's requests for lawyer or remain silent
- whether defendant allowed contact with family member/attorney
- who initiated conversation
- defendant's age/immaturity/health/physical state/experience with criminal justice system
93
What is Right to Counsel?
6th Amendment - protect defendant in all critical pre-trial stages, once formal charges/proceedings have begun, right to counsel applies at:
- custodial police interrogation
- post-indictment interrogation
- preliminary hearing to determine probably cause to prosecute
- arraignment
94
What is Bail?
Controlled by Bail Reform Act
Presumption Cases (ex. drug dealing, child sex offenses) include bail hearing to determine whether defendant's a flight risk or danger to community
Released on own Recognizance (ROR) = judge determines defendant's not a flight risk or danger to community but may need to report to Pretrial Services, drug testing, or have travel restrictions
95
What's an Initial Appearance - Arraignment and an Indictment?
Initial Appearance - Arraignment = Defendant's entitled to preliminary hearing or arraignment within 10 days of initial appearance for in-custody defendants; within 20 days for those not in custody
Indictment = contains the federal charges faced by the defendant, reviewed by grand jury, no preliminary hearing in grand jury proceedings and only defendant charged with federal felony may be tried pursuant to grand jury indictment
96
What are Pretrial Motions?
Can include motions to dismiss charges, suppress evidence, constitutional challenges, bill of particulars, strike, in limine, and severance - outlaws facts and law in support of claim for relief
Bill of Particulars = detailed, formal, written statement of prosecution's charges against defendant, defense files as formal request to court for more detailed information
Suppression Motion = defense moves to suppress evidence or to prevent government from using it at trial
Evidentiary Hearing = magistrate hears arguments on the motion and takes witness testimony if needed to resolve disputed facts
97
What is a Plea?
Defendant strikes a deal with the prosecutor and has written contract to plead guilty but may have a lesser charge or similar benefit for doing so - defense attorney can explain, discuss, and review the plea agreement but it is defendant's decision alone whether to take the plea offer from prosecutor
98
What is Incompetency?
Defendant's mental condition at the time of trial determines whether defendant's fit to stand trial - incompetency is a bar to trial, not a defense
The conviction of a defendant while mentally incompetent violates due process and court must order competency hearing (hearing sua sponte) if there's reasonable cause to believe defendant's presently suffering from mental disease or defect rending them mentally incompetent to extent that def's unable to understand nature & consequences of proceedings or properly assist def's defense
99
What are Trials and their Burden of Proof?
Trials = 6th Amendment - def's entitled to trial by impartial jury of state & district where crime occurred, right to testify or not and if doesn't testify jury can't hold it against def, right to cross-examine gov't witnesses, use subpoena power of court to secure evidence or witnesses for trial
Burden of Proof = government bears burden of proving def guilty beyond reasonable doubt as to every element of a charge - no other logical explanation can be derived from the facts except that defendant committed the crime, thereby overcoming the presumption that person's innocent until proven guilty, def found guilty only if jury of 12 is unanimous as to every element of that charge
100
What is Plea Bargaining?
Govt and def attorneys may reach a plea bargain - court doesn't participate in those discussions
Def pleads guilty or accepts conviction but doesn't accept guilt (nolo contendere plea) either to lesser charge or related offense, plea bargain agreement must specify that govt will:
- not bring, or move to dismiss other charges
- recommend or agree not to oppose def's request that sentence or sentencing range is appropriate or that particular provision in Sentencing Guidelines applies or not
- agree that def's sentence/sentencing range is appropriate disposition of case
101
What is Sentencing?
Governed by Federal Rules of Criminal Procedure
Takes place about 75 days after def's convicted if def's in custody; about 90 days if not
After conviction, Probation Officer interviews defendant and drafts a Pre-Sentence Report (PSR) after reviewing notes from the interview, as well as information submitted by the defendant and the government - draft PSR's provided to defense counsel & govt who have 10 days to make factual or legal objections to report then final PSR's provided to judge before sentencing - it calculates the Federal Sentencing Guidelines and describes the defendant's background & offense as well as any unresolved objections
Allocation = before imposing sentence, court must permit defendant to speak or "allocute" and they're given the opportunity to address a judge
102
What is a Notice of Appeal and Writ of Certiorari?
Notice of Appeal = short period during which def must state intention to appeal
Writ of Certiorari = if def doesn't win appeal with U.S. Court of Appeals, petition can be filed with the Supreme Court of the United States
103
What is Supervised Release?
Almost every federal offense carries a term of supervised release - def must report to Probation Office, submit to drug testing, abide by law and standard conditions of supervised relese
104
What is a Writ of Certiorari?
Petition for Writ of Certiorari = Document which a losing party files with the Supreme Court asking them to review the decision of a lower court - includes list of parties, statement of the facts of the case, legal questions presented for review, and arguments as to why they should grant the writ
Writ of Certiorari = decision by the Supreme Court to hear an appeal from a lower court, granted only for compelling reasons
105
What is Habeas Corpus?
Writ/order directing the govt to produce the body to the court so that the court can rule on the legality of the detention, purpose is to free the prisoner from unlawful restraint,
Initiated by prisoner filing civil petition against the govt that holds prisoner in custody - petitioner (prisoner) has burden of proof of preponderance to show detention is unlawful
106
What is Punishment?
Penalties for charges - Sentencing Guidelines determine sentences primarily on two factors:
- conduct associated with the offense (which produces the offense level - 43 offense levels)
- defendant's criminal history (6 criminal history categories)
When determining length & severity, regarding the crime under consideration, court takes into account:
- if death occurred
- if there was physical injury
- severe psychological injury
- abduction or unlawful restraint
- property damage or loss
- weapons or dangerous instrumentalities used
- disruption of governmental function
- extreme conduct
- criminal purpose
- victim's conduct
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What are Prisoner's Rights?
Don't have full constitutional rights, but protected by 8th Amendment from cruel & unusual punishment as well as rights to adequate medical care, freedom to practice religion and right to access the courts and counsel
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What is Double Jeopardy?
5th Amendment, no person shall be subject for the same offense to be twice put in jeopardy of life or limb, govt can't prosecute someone more than once for the same crime - applies to criminal cases only, not to civil or administrative (ex. if convicted of a crime, not immune to civil lawsuit for damages)
109
What are Juvenile Proceedings?
Juveniles don't have same constitutional rights as adults - juveniles proceedings are heard by judges only because juveniles don't have the right to a jury trial, also don't have the right to bail or public trial, records are sealed and can be expunged (erased) at 18 if certain conditions are met, judges must act in the best interest of the child - objective of sentence isn't to punish but hopefully rehabilitate so they become productive adult
Some cases may be transferred to adult court for trial on criminal charges
110
Which of the following is not a common law felony?
A - Treason
B - Larceny
C - Murder
D - Sodomy
A - Treason
| MR & MRS LAMB - Murder, Rape, Manslaughter, Robbery, Sodomy, Larceny, Arson, Mayhem, and Burglary
111
Unreasonable search and seizure and right to a speedy trial are rights provided by the 8th and 5th Amendments?
A - True
B - False
B - False
112
In the following scenario, Paul's confession can be used against him. Police officers beat and threaten Paul until he confesses to robbing a local jewelry store. Paul also tells the officers where he hid the stolen jewelry. The officers locate the jewelry to use as evidence against Paul.
A - True
B - False
B - False
113
An arrest must meet the requirements of which Amendment?
A - 5th
B - 8th
C - 6th
D - 4th
D - 4th
114
Passion killing is an example of first-degree murder
A - True
B - False
B - False
115
An example that is an Incohate Crime is:
A - Robbery
B - Forgery
C - Conspiracy
D - Larceny
C - Conspiracy
| the rest are crimes against property
116
Gwendolyn points a gun at Mike and threatens to kill him if he doesn't steal his neighbor's car. If Mike complies and is caught, he may use the following defenses:
A - Entrapment
B - Necessity
C - Duress
D - Self-defense
C - Duress
117
The Exclusionary Rule is one of the remedies for violations of a defendant's 4th Amendment rights:
A - True
B - False
A - True
118
Fruit of the Poisonous Tree evidence is admissible in court.
A - True
B - False
B - False
119
Border searches are an exemption to the 14th Amendment clause of the U.S. Constitution
A - True
B - False
B - False (they're an exemption to the 4th Amendment)
120
Pursuant to federal appellate procedure, a defendant must file a notice of appeal within how many days after the entry of either the judgment or order from which the defendant appealed?
A - 7
B - 14
C - 21
D - 30
B - 14 days
121
In which of the following situations is the defendant likely to be found guilty of the crime charged?
A - Def obtains permission to borrow Owner's motorcycle for the weekend by falsely promising to return it (he does not intend to do so). Three days later, he changes his mind and returns the motorcycle. Defendant's charged with larceny by trick.
B - Without the permission of Owner, Def takes Owner's motorcycle with the intention of driving it 100 miles to a casino and back. Def's charged with larceny.
C - With permission and promising to return it by 10pm, Def borrows Owner's motorcycle. Later that evening, Def decides to keep the motorcycle until the next morning and does so. Def charged with embezzlement.
D - Def obtains permission to borrow Owner's motorcycle for weekend by misrepresenting identity and falsely claiming has license to drive it. Returns it following Monday. Def's charged with obtaining property by false pretenses.
A - Returned
B - NOT RETURNED - likely to be found guilty
C - Returned
D - Returned
122
Ambiguity in criminal statute should be resolved in favor of defendant
A - True
B - False
A - True
123
Statutory rape is a strict liability crime
A - True
B - False
A - True
124
A person can be convicted of treason by the testimony of ____ or by confession in open court.
A - Four
B - Two
C - Three
D - Five
B - Two
