Criminal Law and Procedure

Question 1

Elements of a Crime

Answer 1

Prosecution must prove all elements of a crime beyond a reasonable doubt:

1) Physical Act (actus reus);
2) Mental State (mens rea);
3) Causation (both actual and proximate cause); AND
4) Concurrence (mental state and physical act occur at the same time).

Question 2

Acts and Omissions

Answer 2

Physical Act (actus reus) of the D must be voluntary.
Omission – is generally is NOT criminal unless:
1) D had a legal duty to act;
2) D had knowledge of facts concerning the duty to act; AND
3) It was reasonably possible for D to act.

Duty to Act = contractual duty, parent-child relationship, duty taken on voluntarily, statute creates a duty, or when D creates the danger.

Question 3

Causation

Answer 3

Requires both:

1) Actual Causation; AND
2) Proximate Cause.

Actual Causation → present when the result/injury would not have occurred “but for” the D’s conduct.
Proximate Cause → injury must be foreseeable from D’s act (it was a natural probable consequence).

Superseding Intervening Cause – A third-party’s act will break the chain of causation if the act was:

1) Independent; AND
2) Not foreseeable – it’s so out-of-the-ordinary that it’s not fair to hold D liable for the crime

Question 4

Mental States

Answer 4

Common Law (CL):
Specific Intent – intent or desire to engage in the conduct or cause a certain result.
General Intent – awareness of acting in a certain way.
Malice – reckless disregard of a known risk that harm may occur.
Strict Liability – no mental state required; only the act is required.

Model Penal Code (MPC):
Purposefully – conscious object to engage in conduct or cause a certain result.
Knowingly – aware that conduct is of a particular nature or will cause a certain result.
Recklessly – consciously disregards a substantial and unjustifiable risk + act is a gross deviation from how a
reasonable person would act. OR when a person creates such a risk, but is unaware of it solely by reason of voluntary
intoxication.
Criminal Negligence – should have been aware of a substantial and unjustifiable risk + that failure is a gross deviation from the standard of care.

Willful Blindness Standard (majority of states) – A person is deemed to act knowingly when he is:

a) Aware that certain facts are highly probable; OR
b) Intentionally ignorant to certain facts.
* Knowledge may be proved by circumstantial evidence.

Question 5

Murder

Answer 5

Common Law & 2nd Degree Murder – Murder is the
(1) unlawful killing, (2) of a person, (3) with malice aforethought.

− Malice Aforethought = (a) intent to kill, (b) intent to inflict great bodily harm, (c) reckless disregard of an extreme risk to human life (depraved-heart murder), OR (d) intent to commit an inherently dangerous felony (felony murder rule).

1st Degree Murder – The killing was willful, deliberate, AND premeditated.

MPC Murder – Killing of a person committed: (a) purposefully or knowingly; OR (b) recklessly under circumstances manifesting an extreme indifference to the value of human life.

− Felony Murder Rule → recklessness is presumed for robbery, rape, arson, burglary, & kidnapping

Question 6

Manslaughter

Answer 6

Voluntary Manslaughter – Intentional killing of a person without malice aforethought (adequate provocation).
− Adequate Provocation = (1) D was provoked (sudden and intense passion causing a loss of control); (2) a reasonable person would have been provoked; (3) not enough time to cool off; AND (4) D in fact did not cool off.

Involuntary Manslaughter – Unintentional killing of a person committed:

a) recklessly;
b) under the misdemeanor-murder rule;
c) during a non-dangerous felony; OR
d) with criminal negligence (in some states).

MPC Manslaughter – Killing of a person committed:

a) recklessly; OR
b) committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.

Question 7

Theft Crimes

Answer 7

Larceny – (1) trespassory taking, (2) and carrying away, (3) of the personal property of another, (4) with the intent to permanently deprive the owner of the property (intent must exist at the time of taking).

Larceny by Trick – obtain possession (not title) of the personal property of another by trick or deception.

False Pretenses – (1) obtain title, (2) to personal property of another, (3) through an intentional false statement of material fact, (4) with intent to defraud.

Embezzlement – (1) fraudulent or wrongful, (2) conversion, (3) of personal property of another, (4) by a person with lawful possession of the property.
− Intent to permanently deprive the lawful owner of the property is required.

Receiving Stolen Property – when a person (1) receives possession of stolen property, (2) who knows the property is stolen when receiving it, (3) with the intent to permanently deprive the owner of the property.

Question 8

Robbery

Answer 8

is the (1) trespassory taking and carrying away, (2) of the personal property of another, (3) in their presence, (4) by the use of force or threat of immediate physical harm, (5) with the intent to permanently deprive the owner of the property.

− Armed Robbery = above elements + use of a dangerous weapon

Question 9

Burglary

Answer 9

is the (1) breaking and entering, (2) of a dwelling, (3) of another, (4) at night, (5) for the purpose of committing a felony inside.
− Most jurisdictions extend burglary to include breaking into any structure at any time

Question 10

Rape

Answer 10

Common Law – rape is the (1) unlawful sexual intercourse, (2) of a woman by a man (not her husband), (3) without her consent.
− Modern definition → includes marital rape (in most states) and makes gender irrelevant.

MPC – a male who has sex with a female (not his wife) is guilty of rape if: (a) he compels her by force/threat of
imminent death, serious bodily injury, extreme pain, or kidnapping; (b) he secretly drugs her; (c) female is unconscious; OR (d) female is less than 10 years old.
− Deviate Sexual Intercourse → has same elements as above, but is gender neutral.

Statutory Rape – is the (1) unlawful sexual intercourse, (2) with a person, (3) under the age of consent (as defined by statute)

Question 11

Assault and Battery

Answer 11

Battery – is the (1) unlawful application of force, (2) directly or indirectly upon another person or their close personal belongings, (3) resulting in injury or offensive contact.
− Battery is a general intent crime.
− Intent to cause injury is NOT required.

Assault – either (a) an attempted battery, OR (b) the intentional creation of a reasonable apprehension of imminent bodily harm to a person

Question 12

Kidnapping and False Imprisonment

Answer 12

Kidnapping – is the (1) confining, restraining, or moving of a person, (2) without authority of law.
− MPC → abducting another person: (a) for ransom; (b) to facilitate a felony; (c) to inflict bodily injury or terrorize; OR (d) to interfere with a government/political function.

False imprisonment – is the (1) unlawful, (2) confinement of a person, (3) against their will, (4) with knowledge that the restriction is unlawful.
− MPC → when D knowingly restrains a person unlawfully so as to substantially interfere with the person’s liberty

Question 13

Arson

Answer 13

is the (1) malicious, (2) burning, (3) of a dwelling, (4) of another.
− Majority of States → includes damage (i) caused by explosives, and (ii) to other types of buildings and vehicles

Question 14

Criminal Possession

Answer 14

The unlawful possession of an item according to statute (i.e. weapon, drugs).

− To be found guilty, usually need both: (1) knowledge of the possession; AND (2) knowledge of what the item is.

Question 15

Attempt

Answer 15

when a person (1) had specific intent to commit a crime, AND (2) took an overt act sufficiently beyond mere preparation (most states & MPC = a substantial step”vs minority of states = proximate or dangerously proximate).
− Attempt merges with the underlying crime.

Abandonment / Withdrawal Defense:
Most States → NOT a defense once D has taken a substantial step toward the crime (conduct beyond mere preparation).
Minority States & MPC → Abandonment before the completion of the crime is an affirmative defense if:
1) D voluntary renounces his criminal purpose; AND
2) Completely abandons the effort to commit the crime or otherwise prevents its commission

Question 16

Conspiracy

Answer 16

– is a specific intent crime, and requires:

1) An express/implied agreement between two or more persons;
2) Intent to enter into the agreement;
3) Intent to pursue an unlawful objective (common law = all parties; MPC & modern trend = only require one party’s intent); AND
4) Commission of an overt act in furtherance of the unlawful objective (any act taken by a coconspirator is sufficient).

A conspirator is liable for the conspiracy, PLUS all foreseeable crimes committed by co-conspirators in furtherance of the unlawful objective.
− Withdrawal is NOT a defense for the conspiracy, but it is a defense for crimes committed by co-conspirators after the withdrawal.

Question 17

Solicitation

Answer 17

1) D requests another person to commit a crime (or join in the commission of a crime);
2) With specific intent that the crime be committed; AND
3) The other person receives the request

*Solicitation merges with the substantive crime.
Renunciation – is an affirmative defense if Defendant:
1) voluntarily and completely renounces; AND 2) prevents the commission of the crime

Question 18

Accomplice Liability

Answer 18

an accomplice is one who:

1) aids, abets, or facilitates the commission of the crime; AND
2) has dual intent (intent to assist the primary party, and intent that the crime be committed).

An accomplice is liable for all crimes he committed and all foreseeable crimes committed by the primary party.
− Merely being present or knowing a crime will result DOES NOT create accomplice liability.
− Cannot be convicted if D is a member of a class protected by the criminal law.
− Minority of states DO NOT allow accomplice liability for involuntary manslaughter.

Withdrawal – is a defense if D withdraws before the crime becomes unstoppable, and requires:
1) repudiating the encouragement given; AND 2) neutralizing any assistance

Question 19

Duress

Answer 19

Is an affirmative defense, and excuses D’s conduct if it was the result of:

1) a threat of imminent death or serious bodily injury,
2) to the D or another, AND
3) D reasonably believed he was unable to avoid the harm by non-criminal conduct.

*Most states → duress defense is NOT available for intentional killings

Question 20

Insanity

Answer 20

D must have a mental disease or defect, PLUS:

− M’Naghten Test → D is (a) unable to know the wrongfulness of his conduct, or (b) unable to understand the nature and quality of his acts.

− MPC Test → D was (a) unable to appreciate the criminality of his conduct, or (b) unable to conform his actions to the law.

− Irresistible Impulse Test → D’s mental illness made him (a) unable to control his actions, or (b) unable to conform his actions to the law

Durham Test → D’s unlawful conduct was the product of mental illness.
*Most states use the M’Naghten or MPC test

Question 21

Self Defense and Defense of Others

Answer 21

Non-Deadly Force → justified when (1) D reasonably believes, (2) that he’s in imminent danger of being
harmed, AND (3) the force used is proportional to the harm threatened.

Deadly Force → justified when (1) D kills based on a reasonable belief, (2) that he was in imminent danger of
being killed (or suffering great bodily injury), AND (3) the use of deadly force was necessary.

− Minority of States → D has a duty to retreat before deadly force may be used. BUT, D has no duty to retreat when: (a) no opportunity to retreat; (b) he could not retreat safely; or (c) if attacked in his own home.
− An aggressor may only use force in selfdefense if: (a) he withdraws and communicates it; OR (b) the other person escalates the fight with deadly force and withdrawal is not possible.

Defense of Others – use same rule as self-defense.

Imperfect Self-Defense – Mitigates murder to voluntary manslaughter when: (1) D kills based on a good faith belief of self-defense, (2) but such belief was unreasonable

Question 22

Intoxication

Answer 22

Voluntary Intoxication = Ingesting an intoxicating substance by D’s own free will.
− ONLY a defense to specific intent crimes.

Involuntary Intoxication = Ingesting an intoxicating substance without knowledge or by force.
− Is a defense to ALL crimes → use same tests for an insanity defense

Question 23

Mistake of Fact or Law

Answer 23

Mistake of Fact → is a defense if it negates the mental state required for the crime.
Mistake of Law → generally NOT a defense.

Question 24

Government Action and Standing

Answer 24

Govt. Action – 4th Amend. grants a person protection from unlawful government searches and seizures.

− Acts by private individuals are NOT protected. Standing – Is required to challenge a search. Person MUST have a reasonable expectation of privacy regarding the place or item searched.
− Reasonable Expectation of Privacy = that which they own or possess (applies to overnight guest spaces).

Supreme Court has held NO privacy rights for:
(1) paint scrapings taken from a car; (2) bank account records; (3) anything visible from public airspace; (4) garbage left on the curb; (5) the sound of one’s voice; (6) odors; (7) handwriting; and (8) anything that can be seen in or across areas outside one’s home

Question 25

Arrest

Answer 25

To be proper, a police officer MUST have probable cause → (1) trustworthy facts or knowledge, (2) sufficient to warrant a reasonable person to believe, (3) that the person committed a crime.

− Officer DOES NOT need firsthand knowledge (it may be based on informant’s information).
− An arrest in/at someone’s home requires a warrant (unless exigent circumstances)

Question 26

Request for info, Stop & Inquire, Stop & Frisk

Answer 26

Request for Information – allowed anytime except on “whim or caprice”.

Stop & Inquire – police must have (1) a reasonable articulable suspicion, (2) that criminal activity is afoot.
− Allows a brief detention for questioning.

Stop & Frisk – police must have (1) a reasonable articulable suspicion, (2) that criminal activity is afoot, and (3) that the person has a weapon.

− Plain Feel Doctrine → during the frisk, police may only seize items reasonably believed to be contraband or a weapon.

Reasonable Suspicion = quantum of knowledge sufficient to induce an ordinarily prudent and cautious person to believe that criminal activity is at hand.

Seizure = when a reasonable person would have believed that he was not free to leave.

Question 27

Warrant Requirement

Answer 27

a warrant is required for all searches and seizures unless an exception applies.
A valid search warrant requires:

1) Probable cause – reliable info that evidence of illegality will be found;
2) It must state with particularity the place and items to be searched/seized; AND
3) Be issued by a neutral and detached magistrate.

Evidence obtained without a valid warrant is excluded UNLESS it falls under an exception

Question 28

Plain View Doctrine, Exigent Circumstances, Automobile Exception to Warrant Requirement

Answer 28

Plain View Doctrine – police may seize items if:

1) observed in plain view (with any of the 5 senses),
2) from a place lawfully permitted to be, AND
3) probable cause exists to believe the items are evidence of a crime or contraband.

Exigent Circumstances – allows a warrantless search if:

a) evidence is evanescent (it will dissipate or disappear);
b) it’s necessary to prevent the imminent destruction of evidence;
c) the police are in hot pursuit of a felon and evidence is in plain view; OR
d) the emergency aid exception applies.

Automobile Exception – allows a warrantless search if probable cause exists that contraband/evidence of a crime will be found in the vehicle.
− Police can search the entire vehicle, PLUS packages, luggage, and containers that may reasonably contain the items for which there is probable cause.
− In order to search after a traffic stop → police need probable cause prior to the search

Question 29

Search Incident to Arrest, Consent, Inventory Search, Stop and Frisk, Special Need - Warrant Exceptions

Answer 29

Search Incident to Arrest – police may search a suspect’s person + area within suspect’s immediate control (a.k.a “reaching distance” or “wingspan”).
− If arrested in a home → may also search other immediately adjoining spaces from where an attack may be launched.
− If arrested in an automobile → may also search entire interior or passenger’s compartment if: (a) reason to believe evidence of the crime arrested for might be found; OR (b) arrested person is unsecured and could gain access to the vehicle.

Consent – must be given freely, voluntarily, and intelligently.
− A third-person with authority MAY consent.
− If 2 or more people share authority → any one of them may consent, but police cannot search private areas (that only the non-consenting person has authority to give [i.e. private bedroom]).

Inventory Search – allows a warrantless search when a person is incarcerated OR for an impounded vehicle.
− Inventory search must be: (1) reasonable; AND (2) conducted pursuant to established police agency procedures (that are designed to meet the legitimate objectives of the search while limiting the discretion of the officer in the field).

Stop & Frisk – police must have (1) a reasonable articulable suspicion, (2) that criminal activity is afoot, and (3) that the person has a weapon. Plain Feel Doctrine → during the frisk, police may only seize items reasonably believed to be contraband or a weapon.

Special Need – applies in very limited circumstances.

Answer 30

Due Process Clause (14th Amend.) – It’s a violation of D’s rights if a confession is the product of police coercion that overbears the suspect’s free will. Police MAY use coercive conduct (i.e. lying), as long as it doesn’t overcome D’s free will.

Privilege Against Self-Incrimination (5th Amend.) – protects the right to not incriminate oneself.
Miranda Rights – attach when a suspect is in a custodial interrogation. Police must give Miranda warnings → (1) right to
remain silent, (2) anything said can be used against suspect in court, (3) right to talk to an attorney and have one present when they are questioned, and (4) if cannot afford an attorney, one will be provided.
*Statements made in violation of a suspect’s Miranda rights are subject to the Exclusionary Rule.

Custodial Interrogation:
− Custody = the person reasonably believes they are not free to leave.
− Interrogation = police knew (or should have known) they were likely to elicit an incriminating response.

Statements / Acts Protected – only protects statements and acts that are communicative or testimonial in nature.
− Crying is NOT a testimonial communication.
− Miranda rights DO NOT apply to spontaneous statements.

Public Safety Exception – a limited interrogation without Miranda warnings IS ALLOWED when police ask
questions reasonably prompted by a public safety concern or safety of the officer (i.e. to secure a
weapon).

Question 31

Invoking Miranda/Re-questioning and Waiver

Answer 31

Invoking Miranda Rights – it must be clear and unambiguous. Once invoked, police must stop ANY questioning. Additionally, D’s silence CANNOT be commented on at trial.

Police may reinitiate questioning if:
1) Suspect is re-advised of his Miranda rights;
2) Has provided a knowing and intelligent waiver; AND
3) Either (a) counsel is present; (b) suspect initiates the communication; or (c) 14-days have
passed since the suspect was released from custody.

Waiver of Rights – a valid waiver must be made knowingly, intelligently, AND voluntarily.
− D must understand the nature of the right being waived and the consequence for waiving it.
− Police failure to provide outside info DOES NOT invalidate a waiver (unless the info was essential to D’s ability to waive rights).

Question 32

Attachment of Right to Counsel/Effect

Answer 32

the accused has the right to counsel in ALL criminal prosecutions (except State misdemeanor prosecutions that do not carry a risk of jail time).

− Attaches → once formal adversarial judicial proceedings are commenced (formal charge, preliminary hearing, indictment, arraignment).
− Once rights attach, a suspect CANNOT be questioned without a lawyer, and anything said is inadmissible (unless a valid waiver occurs).
− Suspect has the right to consult with an attorney and have one present during questioning.
− This right is offense-specific.

Waiver of Rights – same as waiver under 5th Amend

Question 33

Effective Assistance of Counsel

Answer 33

D has the right to effective assistance of counsel.
− Includes the effective aid in preparation and trial of a criminal case.

Ineffective Assistance of Counsel – D must show:

1) Counsel’s performance was deficient; AND
2) But for the deficiency, the result would be different.

*If shown, the verdict MUST be reversed, and D is entitled to a new trial.

Question 34

Line-Ups & Police-Arranged Identification Procedures

Answer 34

Due Process Clause (14th Amend.) → violated when a line-up is (1) unnecessarily suggestive, (2) resulting in a
substantial likelihood of misidentification.
− If violated → identification is inadmissible at trial.
− Absent improper police influence, an out-of-court identification is ADMISSIBLE.

Independent Source Rule → an in-court identification is admissible at trial (even if a line-up is tainted) when it’s:

1) based on a witness’s previous knowledge;
2) trustworthy; AND
3) based on a previous transaction (i.e. the crime).

Right to Counsel (6th Amend.) → a person has the right to counsel at a post-charge line-up.
− No right to counsel under 6th Amend. at a precharge line-up or photo-identification.

Miranda Rights (5th Amend.) → pre-trial identifications (line-ups, photo identifications), blood tests, fingerprints, and voice identifications are NOT protected by the 5th Amendment.
− A suspect in custody CANNOT refuse to participate in a line-up

Question 35

Exclusionary Rule

Answer 35

Exclusionary Rule – Evidence obtained in violation of D’s 4th, 5th, or 6th Amendment rights is inadmissible at trial.
− All derivative evidence is also inadmissible under the fruit of poisonous tree doctrine.

Exceptions – Exclusionary Rule DOES NOT apply if:

a) Police had an independent source for the secondary evidence;
b) Discovery of evidence was inevitable regardless of the illegality;
c) Through the attenuation doctrine → when D’s free will is restored through the passage of time or intervening events; OR
d) Police relied in good faith on a defective warrant.

Limitations on Miranda Violations – In addition to the above, the following limitations apply to Miranda violations:
▪ Limitation #1 → Not required to suppress the physical evidence found because of D’s statements (as long as statement was voluntary).
▪ Limitation #2 → Subsequent statements made after Miranda warnings are admissible. UNLESS a previous statement was obtained through the use of inherently coercive police tactics offensive to Due Process.
▪ Limitation #3 → Statements in violation of Miranda may be used to impeach D on cross examination

Question 36

Right to Jury Trial and Competence to Stand Trial

Answer 36

Right to a Jury Trial – 6th Amend. guarantees a criminal defendant the right to a jury trial for offenses where imprisonment is greater than 6 months.
− Minimum of 6 jurors is required, and a verdict MUST be unanimous.
− Any fact (other than a prior conviction) that increases the maximum penalty for a crime MUST be submitted to a jury and proven beyond a reasonable doubt.

Competence to Stand Trial – D is competent to stand trial if he has:

1) a sufficient present ability to consult with his lawyer (able to assist in preparing a defense); AND
2) a rational and factual understanding of proceedings.

*D cannot be tried if deemed incompetent (but competence can be reassessed at a later date)

Question 37

Double Jeopardy

Answer 37

Double Jeopardy – Prevents a D from being prosecuted twice for the “same offense”.

− Under Blockburger Test → two crimes are NOT the “same offense” if each crime requires proof of a fact which the other does not.

− A final judgment on a lesser offense bars prosecution of a greater offense on the same facts UNLESS the greater offense: (a) did not exist at the time of trial; OR (b) was not discovered despite due diligence.

Jeopardy Attaches → when a jury is impaneled and sworn.
− Exceptions: (1) hung jury, (2) manifest necessity exists to end the trial, OR (3) trial is terminated at D’s request and it’s not an acquittal on the merits.

Question 38

Burden of Proof & Sufficiency of Evidence

Answer 38

Burden of Proof → Prosecution MUST prove every element of a crime beyond a reasonable doubt.
− Burden of proof CANNOT be shifted to D.
− Making D prove affirmative defenses is allowed.

Presumptions for Jury Instructions – 2 types:
− Rebuttable Presumption (one that may be disputed or overcome by additional evidence) → violates the Due Process Clause if it shifts the burden of proof to D.
− Irrebuttable Presumption (one that cannot be disputed or overcome) → is a per se violation of the Due Process clause.

Sufficiency of Evidence – A court MUST enter a Judgment of Acquittal if the evidence is insufficient to sustain a conviction (when a reasonable jury would not find that each element was proven beyond a reasonable doubt).

− D may move for a Judgment of Acquittal either: a) at the close of its case-in-chief; OR (b) after the close of all evidence

Question 39

Harmless Error Rule

Answer 39

even if evidence is improperly admitted at trial, a guilty verdict will stand if the Prosecution can prove that the error was harmless (that D would have been convicted anyway).