Criminal Law and Procedure

Question 1

Warrant Exceptions

Question 2

4th Amendment

Answer 2

o The police may not execute an arrest warrant in a third party’s home without a search warrant or exigent circumstances.

Question 3

5th Amendment

Answer 3

 At any time prior to or during interrogation, a suspect may invoke a Miranda (Fifth Amendment) right to counsel. However, the request must be unambiguous and specific. If the defendant agrees to answer questions orally, but requests the presence of counsel before making any written statements, the defendant’s oral statements are admissible. The defendant’s agreement to talk constitutes a voluntary and knowing waiver of the right to counsel, even if it could be argued that it indicates a misunderstanding of the evidentiary effect of oral statements.
o the failure to give Miranda warnings, which may violate the Fifth Amendment privilege against self-incrimination, does not prevent use of otherwise voluntary statements for impeachment purposes

Question 4

6th Amendment

Answer 4

o Offense specific
o Applies at any post-indictment event
o a statement obtained in violation of a defendant’s Sixth Amendment right to counsel may be used to impeach the defendant’s contrary trial testimony

Question 5

Felony Murder

Answer 5

o Felony murder: accidental killing that occurs during commission or attempted commission of inherently dangerous felon (BARK: burglary, arson, rape, robbery, kidnapping)
 the felony murder rule can be applied only when the underlying felony is independent of the killing. A felony such as assault or battery that directly causes death (as in this case) would not be considered an independent felony

Question 6

Arson

Answer 6

o CL: malicious burning of dwelling of another
o Modern/MPC: malicious burning of structure or dwelling – minimum needed: charring

Question 7

Specific Intent Crimes

Answer 7

SCAFALEFRBF
Solicitation
Conspiracy
Attempt
First degree murder
Assault
Larceny
Embezzlement
False Pretenses
Robbery
Burglary
Forgery

Question 8

Double Jeopardy

Answer 8

The Fifth Amendment right to be free of double jeopardy for the same offense has been incorporated into the Fourteenth Amendment. The general rule is that once jeopardy attaches, the defendant may not be retried for the same offense. In jury trials, jeopardy attaches when the jury is empanelled and sworn, but the state may retry a defendant even if jeopardy has attached when the first trial ends in a hung jury.
o Applies to convictions, acquittals, and where there is evidence of prosecutorial misconduct
o Where charges can be tried in a single trial, but the defendant consents to having two separate trials, there is no double jeopardy violation

Question 9

Robbery

Answer 9

requires force or threat of force (taking something off someone’s person)

Question 10

Embezzlement

Answer 10

At common law, embezzlement was (i) the fraudulent; (ii) conversion; (iii) of the property; (iv) of another; (v) by a person in lawful possession of that property

Question 11

Forgery

Answer 11

At common law, forgery consisted of (i) a making or altering; (ii) of a false instrument; (iii) with the intent to defraud. The falsity must be about the instrument itself, not about the contents of the instrument.

Question 12

False pretenses

Answer 12

D obtains title of property of another by intentional or knowing false statement of past or existing fact with the intent to defraud another

Question 13

Larceny by Trick

Answer 13

At common law, larceny by trick occurred when possession of property was conveyed rather than actual title.

Question 14

Conspiracy

Answer 14

o Can’t withdraw from conspiracy at CL
o At common law, a conspiracy was an agreement between two or more persons to commit an unlawful act or to commit a lawful act in an unlawful manner. The elements are: (i) an agreement between two or more persons; (ii) the intent to enter into an agreement; and (iii) the intent to achieve the objective of the agreement