Criminal Law and Procedure

Question 1

Larceny

Answer 1

Larceny is the (1) trespassory taking and carrying away of (2) person’s tangible personal property (3) with the intent to permanently deprive the other of his interest in the property.

Question 2

Trespassory taking

Larceny

Answer 2

Trespassory taking is taking of the property without the owner’s consent.

Question 3

Carrying away

Larceny

Answer 3

Carrying away means to remove the item from where it was (even by an inch)

Question 4

Intent to Permanetly Deprive

Larceny

Answer 4

Intent to permanently deprive must be formed at or before the time of the taking unless continuing trespass

Question 5

Continuing trespass

Larceny

Answer 5

continuing trespass occurs where the item is initially taken wrongfully, and the intent to permanently deprive occurs later.

e.g., defendant takes the victim’s car for a joyride, and then decides later not to return it).

Question 6

Embezzlement

Answer 6

Embezzlement is the (1) fraudulent conversion (2) of the other’s property (3) by a person in lawful possession of that property.

The taking is not trespassory because embezzler is in lawful possession of the property and thus holds it with consent. Instead, any use inconsistent with the trust position is conversion.

Question 7

False Pretenses

Answer 7

False pretense is obtaining title from the other’s property by an past or existing, intentional or knowing false statement of fact with the intent to defraud the other.
—

False Pretenses consist of (1) obtaining title (2) to the property of another (3) by an intentional or knowing false statement of past or existing (but not future) fact (4) with the intent to defraud the other.

The false or fraudulent statement must cause the owner to part with title.

Question 8

Larceny by Trick

Answer 8

Larceny by Trick consists of (1) obtaining possession (2) to the property of another (3) by an intentional or knowing false statement of past or existing (but not future) fact (4) with the intent to defraud the other.

Question 9

not rule

When the Money is Title

False pretense v. Larceny by Trick

Answer 9

When money is falsely obtained and used for another purpose is larceny by trick and not false pretenses. Money is not title until it is used for what the giver of the money intends.

Hypo: The accused tells the victim he is going to take the money and give it to X to buy a car for the victim.

If accused keeps it for himself, that is larceny by trick since the title did not ever pass by giving it to X.

But, if the accused gives it to X and X does not buy the car but keeps the money and gives himself a kickback, that’s false pretense.

Question 10

Robbery

Answer 10

Robbery is the taking of other’s personal property from the other’s person or presence by force or threat of force with the intent to permanently deprive the other of his interest in the property.
—
Robbery is the (1) taking of personal property of another (2) from the other’s person or presence (3) by force or threat of force (4) with the intent to deprive the other of his interest in the property permanently.

Larceny is a lesser-included offense – a defendant cannot be convicted of both Robbery and Larceny.

Question 11

Receipt of Stolen Property

Answer 11

Receipt of stolen property is obtaining stolen property with intent to permanently deprive the true owners of the property after receiving possession and control of it, knowing that the property was obtained by crime other committed or supplier did not have the right to the property.

—
Receipt of stolen property consists of (1) Receiving possession and control of stolen property; (2) known to (a) have been obtained by use of a crime by another person or (b) that supplier did not have the right to property; (3) with the intent to permanently deprive the true owner of the property.

Question 12

Forgery

Answer 12

Forgery consists of making or altering false writing of apparent legal significance with the intent to defraud.

Question 13

Forgery v. not forgery

not rule

Answer 13

Forging a letter from the President to a friend that does not bear on policymaking ==> it has no legal significance ==> not forgery

Making of a forged check has legal significance ==> purported demand on the bank to pay the bearer of the check ==> forgery

Question 14

Extortion

Answer 14

Extortion is the obtaining of property or another thing of value by means of oral or written threats. The threat need not be immediate harm but also future harm. The property does not need to be taken from the victim’s immediate presence.

Modern Rule

Question 15

Burglary

Answer 15

Burglary is the entering and breaking into the other’s dwelling at night with the intent to commit felony therein. Felony need not be committed. Entry obtained by threats or fraud is constructive breaking and entering.
–
Common law Rule: Burglary is the (1) breaking and (2) entering (3) of the dwelling of another (4) in the nighttime (5) with the intent to commit a felony therein. The felony need never be committed. Entry obtained by fraud or threat is constructive breaking and entry.

Question 16

Breaking

Burglary

Answer 16

Breaking requires the use of any force, however slight, to gain entry without consent

Question 17

Dwelling in the common rule

Burglary

Answer 17

Dwelling includes all the buildings within the curtilage of the house but the term have been expanded in meaning.

Question 18

Arson

Answer 18

Arson is the malicious burning of the dwelling of another. The required damage by burning must be by fire.

Burning – charring, not scorching

Question 19

Burning

Arson

Answer 19

The burning must be charring, not scorching.

Question 20

“Of another”

Arson

Answer 20

refers to possession, and not ownership

Question 21

Malice

Arson

Answer 21

Malice element requires either intent or reckless disregard.

Question 22

Criminal Assault

Answer 22

There are two types of criminal assault:

1. The attempt to commit a battery; or
2. Intentional creation, by other than mere words, of a reasonable apprehension in the victim’s mind of imminent bodily harm

intentional creation of apprehension - scaring people away though not trying to scare you away

Question 23

Attempt to Commit a Battery

Answer 23

The attempt to commit a battery is a specific intent crime. It requires the intent to commit a battery plus some overt act toward the completion of the crime.

Question 24

Intentional Creation of Apprehension

Answer 24

Intentional creation of apprehension is a general intent crime. It merely requires the intent to cause apprehension, or reckless disregard.

Question 25

Criminal Battery

Answer 25

Criminal Battery is the unlawful harmful or offensive touching to another without consent.
—
Criminal battery is the (1) unlawful application of direct or indirect force (2) to the person of another (3) resulting in (4) bodily injury or an offensive touching.

Question 26

Aggravated Battery

Answer 26

Aggravated battery is the same elements for criminal battery and either:
(1) the use of a deadly weapon;
(2) serious bodily injury; or
(3) the victim is a child, woman, or police officer (in some states).

Question 27

Mayhem

Answer 27

Dismemberment or disablement of body part.

Question 28

Kidnapping

Answer 28

Kidnapping is the confinement of a person that also involves either: (1) movement of the victim or (2) concealment of the victim in a secret place. Only some movement is required.

Question 29

Aggravated kidnapping

Answer 29

Aggravated kidnapping requires kidnapping for ransom, kidnapping for the purpose of committing other crimes, kidnapping for an offensive purpose (such as committing a sexual offense toward the victim), and the child stealing (which means leading, taking, enticing, or detaining a child with the intent to keep or conceal the child from a parent or guardian).

Question 30

Rape

Answer 30

Rape is the unlawful carnal knowledge of a woman by a man who is not her husband. Statutes may define it differently, by, e.g., making it a crime for a husband to commit rape of his wife.

Question 31

Unlawful

Rape

Rarely tested on essay but frequent on MBE

Answer 31

Unlawful means without the victim’s consent. There is no lawful consent if intercourse is accomplished:
1. by force,
2. by a threat of great and immediate harm, or
3. where the victim is incapable of consenting, due to unconsciousness, drugs, intoxicating substances, or the victim’s mental condition.

Question 32

Statutory Rape

Answer 32

Statutory rape is sexual relations with a minor under a specified statutory age. It is a strict liabiltiy crime. It does not matter whether the defendant knows the victim’s true age.

Question 33

Homicide Analysis

not rule

Answer 33

1. First analyze whether there is second-degree murder unless you are first asked about the first-degree murder

Option 1
- 2nd degree murder
- 1st degree murder

Option 2
- 1st degree murder
- 2nd degree murder

2. Conclude on second-degree murder, before moving to consideration of first-degree murder
3. Then, if facts support it, move to voluntary manslaughter.

Question 34

2nd Degree Murder/Common Law Murder

Answer 34

(Second Degree) Murder is the (1) unlawful killing (2) of a human being (3) with malice aforethought.

Malice aforethought is a mental state, which can be shown four ways: (1) intent to kill, (2) intent to do great bodily injury, (3) reckless indifference to an unjustifiably high risk to human life, or (4) felony murder.

Felony murder means that the killing was committed during the course of a felony. Some states, such as California, limit liability on felony murder to the person actually committing the killing. Others do not, so that all the participants in the felony are guilty of felony murder.

Question 35

Unlawful killing of a human being

2nd Degree Murder/Common Law Murder

Answer 35

A killing is unlawful if it is done without justification.
—
1. Without justification
2. Causation implicitly established unless defendant not the direct killer

Question 36

Homicide – Causation

Answer 36

Causation is an issue when V does not die directly at D’s hand or would cause other harm not death –> discuss causation as part of unlawful killing and look to see if the death was the foreseeable result of D’s actions

e.g., of causation issue
defendants kidnapped the victim, one of them raped her, and she then committed suicide. In discussing whether they were guilty of her murder, because they didn’t kill her directly, you would need to discuss whether they caused her death—whether her suicide was the foreseeable result of defendants’ actions.

Question 37

Malice aforethought

Answer 37

Malice aforethought is established by (1) intent to kill; (2) intent to inflict great bodily injury; (3) reckless indifference to the unjustifiably high risk to human life (“abandoned and malignant heart”); or (4) felony murder (killing committed in the course of commission of a dangerous felony).

Question 38

Inference on intent to kill:

Answer 38

Intent to kill may be inferred:
1. from the killing,
2. the use of a deadly weapon, particularly if no other circumstances are given.

Question 39

Transferred Intent

subrule - inference on intent to kill

Answer 39

Under transferred intent, when a defendant intends a harmful result to one person, but through his or her actions causes that harmful result to actual victim, the defendant is guilty of the crime because the mental state required for the intended victim “transfers” to the action that caused the harm to the actual victim.
—
Transferred intent: the intent to kill one person can be transferred to the actual killing of another.

Question 40

1st Degree murder

Answer 40

[All murder is second-degree unless it is committed with premeditation and deliberation.] or
[First degree murder is the unlawful killing with malice aforethought, premeditation and deliberation.]

Deliberation requires that the act be committed coolly and dispassionately. Premeditation requires that the act be committed after a period of reflection (even brief). In some jurisdictions, first degree murder can also be charged where the murder takes place during the commission of an inherently dangerous felony, including armed robbery.
—
All murder is 2nd degree unless murder is done with premeditation and deliberation

Question 41

Premeditation

1st Degree Murder

Answer 41

It means the act was committed after a period of reflection—which can be brief.

Question 42

Deliberation

1st Degree Murder

Answer 42

It means it was committed coolly and dispassionately. 

Question 43

Felony Murder Tip

Answer 43

1. First, decide whether the killing was caused by a felony,
2. determine there was at least second-degree murder.
3. Then, if the felony is on the list, discuss that it is raised to first degree felony murder. 

Question 44

Felony Murder

Answer 44

The felony in the felony murder can be any felony, and must be an act independent of the killing.

If co-felon is killed by victim or police:
1. Majority view: Not felony-murder
2. Minority view: This is felony-murder

Question 45

Felony

Answer 45

Felony in the felony murder must be independent of killing.

2nd degree felony murder - don’t have to state it. it is under malice aforethought.
E.g., If the underlying felony is criminal battery, and the victim dies a result of the battery, there is no felony murder à murder based on intent to cause great bodily harm.

Question 46

CA Felony Murder

Answer 46

Felony-murder only if:
1. Attempts, commits, or participates in felony and
2. Directly kills, or aids or abets in killing, or
3. On-duty police officer is killed in course of felony

Question 47

First-degree felony-murder

sub-Rule under intent to kill

Answer 47

First-degree felony-murder includes the killing during an enumerated—usually highly dangerous—felony, such as arson, burglary, robbery, rape, or kidnapping. [and anything else a local statute might include)]

Question 48

1st degree felony-murder on enumerated list

Answer 48

1. burglary
2. arson
3. robbery
4. rape
5. kidnapping
6. train robbery
7. anything else listed in statute

Question 49

2nd degree felony-murder

Answer 49

killings caused during all other non-enumerated felonies.

Question 50

Voluntary Manslaughter

Answer 50

Voluntary manslaughter is the (1) intentional killing (2) of a human being (3) with adequate provocation.

In most modern common law jurisdictions, “mere words” can be adequate provocation if so determined by the jury.

Tip: If you determine there was either degree of murder, and if the call of the question seems to ask for it by asking what crimes or homicide defendant committed, ONLY THEN do you analyze for voluntary manslaughter.

Question 51

Adequate Provcation

Voluntary Manslaughter

Answer 51

Adequate provocation requires (1) it be one that would arouse sudden and intense passion in the ordinary person’s mind so it causes one to lose self control; (2) defendant is in fact provoked; (3) insufficient time for passions of a reasonable person to cool; and (4) defendant in fact did not cool off.

mere words may provoked a person
but, objectively, words after a long time has passed is not reasonable.

Question 52

Involuntary Manslaughter

Answer 52

Involuntary manslaughter involves either criminal negligence or misdemeanor manslaughter.

When to discuss involuntary manslaughter:
1. Murder and voluntary manslaughter require intent – intent to kill someone, even if not particular victim, since the doctrine of transferred intent applies.
2. If the death was not murder or voluntary manslaughter, but by some form of accident, only then do you consider involuntary manslaughter.

Question 53

Criminal negligence

Involuntary Manslaughter

Answer 53

Criminal negligence requires a substantially greater deviation from the reasonable person standard of civil liability.

Question 54

Misdemeanor Manslaugther

Answer 54

A killing caused by an unlawful act not a felony (misdemeanor). Misdemeanor does not have to be independent of the killing.

Question 55

Attempt Crimes

Answer 55

An attempt requires (1) the intent to commit a specific crime and (2) an overt act in furtherance of that crime. Attempt is a specific intent crime. But intent can be infer from conduct.

Question 56

Attempt jurisdiction

Answer 56

Proximity test - The proximity test measures the defendant’s progress by examining how close the defendant is to completing the offense. The distance measured is the distance between preparation for the offense and successful termination. It is the amount left to be done, not what has already been done, that is analyzed

dangerously close - when a person comes dangerously close to carrying out a criminal act, and intends to commit the act, but does not commit it

Question 57

Merger

Answer 57

Attempt merges into completed crime – only charge the completed crime

Unlike Lesser included charge – both greater and lesser charges are included, but only convict of one

Question 58

Inchoate Crimes

not rule

Answer 58

• Solicitation
• Accomplice liability
• Conspiracy
• Accessory after the fact

Tip: when the defendant is not the principal actor who commits the physical act constituting the crime, don’t analyze the underlying crime and its elements. Instead, analyze the possible inchoate crimes.

Question 59

Conspiracy

Answer 59

A conspiracy requires an express or implied agreement between two or more persons to commit a crime with the intent to enter into the agreement and to achieve its objective. Most states also required an overt act in furtherance of the conspiracy, which can be mere preparation. All co-conspirators are liable for any acts of another co-conspirator that are foreseeable and in furtherance of the conspiracy.

Question 60

impliedly agree to a conspiracy w/out full knowledge of the plan

sub-rule under an implied agreement btwn or persons to commit a crime

Answer 60

An agreement to commit a crime can be implied, and it does not require that the person be informed of all the details of the crime—they merely need to know that the act will be illegal, and agree to participate in it.

Question 61

Co-conspirator’s Liability

Conspiracy

Answer 61

A conspirator is liable for the crimes of a co-conspirator that are foreseeable and in furtherance of the conspiracy.

Question 62

Protected class exception

Conspiracy

Answer 62

if one of the conspirators is the victim of the crime and is in the protected class, there cannot be a conspiracy unless a third person is part of the conspiracy

E.g., of protected class – underage victim in charging statutory rape

a) no conspiracy if the rapist and victim agree to sexual relations, absent the involvement of a third person
b) thus, defendant is guilty only statutory rape, not conspiracy to commit statutory rape.

Question 63

Wharton’s Rule

Conspiracy

Answer 63

if the crime requires two or more participants, another person in addition to the participants must enter into the agreement for there to be a conspiracy.

Question 64

Unilateral theory -
with informant or undercover police officer

Conspiracy

Answer 64

Unilateral theory requires the defendant to have had the intent to conspire and commit the underlying crime.

—
If one actor is an informant or undercover police officer, also discuss the unilateral theory (which only requires the defendant to have had the intent to conspire and commit the underlying crime).

Question 65

Bilateral theory -
both acts have criminal intent

Conspiracy

Answer 65

If both actors have criminal intent, use the bilateral theory of conspiracy (requiring an agreement between or among all the conspirators to commit the underlying crime).

Question 66

In furtherance

Conspiracy

Answer 66

“In furtherance” means the act is necessary to accomplish the goal of the conspiracy

Question 67

Withdrawal

Defense to Conspiracy

Answer 67

When one of the participants to a conspiracy wants to withdraw from a conspiracy, (s)he must take an affirmative action to withdraw from the conspiracy, before the objective of the conspiracy is complete, and communicate to all participants that (s)he is withdrawing. In some jurisdictions, (s)he must also take an affirmative step to prevent the crime from being completed.

Question 68

Notice to other participants

subrule - Withdrawal

Answer 68

Notice to the other participants can be in any reasonable way

Question 69

Accomplice liabilty and Co-conpsirator liability

put it in each crime that further conspiracy

Answer 69

For both accomplice liability and liability as a co-conspirator, the crime defendant committed must be foreseeable, with the additional requirement that it be in furtherance of the conspiracy to proceed against co-defendants as co-conspirators.

Question 70

Solicitation

Answer 70

Solicitation occurs when: (1) Defendant incites, counsels, advises, induces, urges, or commands another person to commit a crime (2) with the intent that the crime be committed by that person. The crime is complete upon the solicitation, whether or not the other person commits the crime.

Question 71

Accomplice Liability

Answer 71

Accomplice liablity requries: (1) Defendant encourages or assists another person who commits a crime (2) with the intent to promote or facilitate the commission of the crime. An accomplice is guilty of all foreseeable acts commited by the principal or other person in the commission of the crime.

Question 72

Accessory after the fact

Answer 72

An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that person has committed a felony and helping the felon escape arrest, trial, or conviction.

Notice that mere comfort is not sufficient, unless it is with the purpose of help the felon escape arrest, trial, or conviction.

Question 73

Self-Defense

Answer 73

A person may use deadly force if:
(1) he is without fault (didn’t initiate the assault or provocation);
(2) he is confronted with unlawful force – the victim had no legal right to use force on defendant; and
(3) he reasonably believes he is threatened with imminent death or great bodily harm.

Question 74

Duty to Retreat

Answer 74

1. The majority rule is there is no duty to retreat.
2. The minority rule requires retreat only if it can be done in complete safety and does not require retreat from the home or business

—
Always discuss the duty to retreat (despite the majority rule)

Question 75

Imperfect Self-Defense

Answer 75

If the defendant’s belief to the threat is unreasonable, [so that the third element of self defense is not met,] a finding of imperfect self-defense will mitigate murder to voluntary manslaughter.

Question 76

Defense of Another

Answer 76

Defendant must reasonably believe the other person is legally entitled to use force and may only use reasonable force to prevent it.

[then discuss self-defense elements for other person]

–
A defendant is justified when it is necessary to defend the other person who is facing an unlawful imminent threat of bodily harm. Deadly force is only justified when there is a threat of death or grievous bodily harm. Some jurisdiction looks at whether the defendant’s belief was reasonable that the other person was being unlawfully attacked. If the defendant was reasonable but mistake, the defendant can still claim this defense. But in other jurisdiction, the defendant steps into the shoe of the victim and see whether the party was the first aggressor or failed to retreat when required by the law, the defendant has no defense.

—

Note: Regarding reasonable belief, discuss whether the other person could have asserted self-defense, using the elements of self-defense.

Question 77

Necessity

Answer 77

Defendant must have a reasonable belief that their criminal conduct was necessary to avoid a greater harm to society. Defense is not available if defendant is at fault in creating the choice. Causing the death of others is never objectively reasonable.

Question 78

Duress

Answer 78

Duress requires a threat, which defendant reasonably believes threatens death or great bodily harm. Duress is not a defense to homicide (murder and manslaughter).

Question 79

Mistake of Fact

Answer 79

The mistake must be reasonable and must negate the required mental state for a crime.

Tip: A favorite area for MBE

Question 80

Voluntary Intoxication

Answer 80

Voluntary intoxication is the intentional taking of a substance known to be intoxicating without duress. Voluntary intoxication is not a defense to general intent or malice crimes but to specific intent crimes, [including attempt, first degree murder, burglary, larceny, robbery, and all attempt crimes.]

Question 81

Involuntary Intoxication

Answer 81

Involuntary intoxication is a defense to all crimes. It requires taking of a substance under direct duress, without knowledge of the substance’s nature, or pursuant to medical advice while unaware of the effect.

[after analysis]

Involutnary intoxication is treated as the insanity defenses. Thus, there are 4 tests for insanity.

—
Tip: Involuntary intoxication may be treated as insanity, in which case you must also discuss the four types of insanity defenses.

Question 82

Insanity Defenses

Approach

Answer 82

• M’Naghten rule
• Irresistible impulse
• Durham Rule
• ALI/MPC Test
• If insanity is a possible defense, briefly describe all four types of insanity defense.
• If there are facts that support particular defenses, say so. Otherwise, simply describe each defense and then at the end conclude that if defendant demonstrates any of these defenses, defendant will be found not guilty by reason of insanity.
• All of them, however, do require evidence of a mental disease.

Question 83

Four Insanity Defenses

How the rule is to be stated

Answer 83

The four types of insanity are M’Naughten Rule, irresistible impulse, Durham rule and ALI/MPC test.

look below to see each rule

Question 84

M’Naghten Rule

**

Answer 84

A disease of the mind caused a defect of reason such that the defendant lacked the ability to either know the wrongfulness of his actions or understands the nature and quality of his actions.

Question 85

Irresistible Impulse

**

Answer 85

Because of mental illness, a defendant is unable to control his actions or conform his conduct to the law

Question 86

Durham Rule

**

Answer 86

This is but for causation – if the crime was a product of the mental disease or defect, this requires an acquittal

Question 87

ALI/MPC test

**

Answer 87

Because of mental disease, defendant lacked substantial capacity to either appreciate the criminality of his conduct or to conform his conduct to the law.

Question 88

4th amendment steps

no rule

Answer 88

1. Was there govt conduct?
2. Standing
3. Expectation of privacy
4. Was there a stop?
   (a) Stop and frisk
   (b) Police checkpoints
5. Searches, warrants, and arrests
6. Major exceptions to warrant requirement
   (a) Consent
   (b) Automobile
   (c) Plain view
   (d) Search incident ot lawful arrest
   (e) Protective sweep
   (f) Inventory search
   (g) Exigent circumstances
   (h) Emergency aid exception
   (i) Inevitable discovery
   (j) Independent source

Remedy for 4th amendment violations
1. Exclusionary rule
2. Good faith exception
3. Impeachment

Question 89

4th Amendment General Rule

Answer 89

4th amendment prohibits unreasonable searches and seizures.

Question 90

Was there government conduct?

no rule; analysis

Answer 90

All claims of Fourth Amendment violations require government conduct.

—-

1. Was there some type of police action (not private party)?
2. Where the police direct a private citizen to act on their behalf, that citizen’s conduct is equivalent to government conduct?

Question 91

Standing: Expectation of privacy

Answer 91

Under Katz, Defendant has standing to contest search or seizure when defendant has the existence of a reasonable expectation of privacy in the thing or place to be searched:

(1) is there a subjective expectation of privacy (did the Defendant actually expect privacy?);
(2) does society objectively consider there to be privacy in the thing or place to be searched?

Question 92

Expectation of privacy

Answer 92

1. Surveillance of the accused in an open area where there would be no expectation of privacy does not violate the 4th amendment.
2. Searches in an open area or an area where there is no expectation of privacy, such as alleys and common areas, do not violate the 4th amendment
3. One’s Vehicle

Question 93

Stop and Frisk

Answer 93

To justify a stop and frisk under Terry, police must show a reasonable suspicion, supported by articulable facts, of criminal activity. A frisk must be just a pat down of the outer clothing to determine if the suspect is carrying a weapon. Any disclosure of any item other than weapon through frisks requires warrant or warrant exception.

Stop and frisk is insufficient to justify a warrantless search of the defendant’s person, possession such as bag or purse, or automobile. At that point, discuss the legitimacy of the search and any exception to the warrant requirement under the law of searches.

Question 94

Plain Feel Doctrine

Answer 94

Under the Plain Feel Doctrine, the police officer must be able to determine simultaneously that 1) the item is not a weapon and that 2) the item is contraband. If the police officer cannot determine that the item is contraband without additional probing or investigation, the item cannot be seized without a warrant or a warrant exception.

Question 95

Police Checkpoints

Answer 95

Police may set up roadblocks to stop cars without individualized suspicion that the driver has violated the law if:
(1) cars are stopped on a neutral, articulable standard (e.g., every nth car); and
(2) the roadblock is designed to serve purpose closely related to a particular problem related to automobiles (checking sobriety or that all the occupants are legally in the country).

Question 96

Searches, Warrants, and Arrest

no rule

Answer 96

Fourth amendment requires that search and seizures be reasonable. A reasonable search requires a warrant. If there is no warrant or the warrant is invalid, search is invalid unless by warrant exception.
—
The Fourth Amendmnet requires that search and seizures be reasonable. A reasonable search requires a warrant. If there is no warrant or the warrant is invalid and cannot otherwise be saved see if you fit the search into one of the exceptions.

1. If there is a search of the accused, their home or car, or what they are carrying, did the police have a Warrant?
2. If the warrant is invalid, see if you can save the evidence through a good faith reliance defense.
3. If there is no warrant or the warrant is invalid and cannot otherwise be saved see if you fit the search into one of the exceptions.

Question 97

Valid Warrant

Answer 97

Valid warrant must:
1. Describe the place and the objects to be searched with reasonable particularity.
2. Be issued by a neutral and detached magistrate.
3. Not be Based on Willfully false statements

If a warrant is based on omission, it is still valid. If the warrant is valid, the search is valid.

Question 98

Warrant Exception

Answer 98

In the absence of a warrant, the governmen must demonstrate that it has complied with a recognized warrant exception.

Question 99

Consent

Answer 99

The consent was given knowingly, valid and intelligently; consent is given by someone with authority or whom police reasonably believe has authority.

—
Subrules:

• Co-occupant has authority to allow search in common areas – accused assumes that risk
• Apartment manager cannot give consent to search a tenant’s rooms
• Absent a true emergency involving someone’s health or evidence of imminent suicide, police cannot enter a residence under a “community caretaking” exception

Question 100

Automobile exception

Answer 100

my rule:
The officer may search the whole vehicle if officer has probable cause the seizable object or contraband is in the vehicle, but cannot search the vehicle within the curtilage of one’s home.

—

Warrant is not required if there is probable cause that there are seizable items or contraband in the car.
* Police may search anywhere in car that may contain contraband.
* But this exception does not apply to automobiles within curtilage of home

Police has probable cause of criminal activity if it is based by articulable facts.

Question 101

Plain View

Answer 101

Officer can seized object if the object is discovered inadvertently and is immediately apparent as evidence of crime. The officer seizing the evidence must have a lawful right to access or observe the seized object

Assumes the officer had a right to be where they are

Question 102

Search Incident to Lawful Arrest

Analysis

Answer 102

1. First discuss whether there was a lawful arrest
2. If lawful arrest, can search

Question 103

Lawful arrest

Answer 103

The lawful arrest requires a warrant unless:
1. The officer sees the defendant is committing a felony or misdemeanor; or,
2. The officer has probable cause that the defendant was is committing or is has committed a felony.

—
A lawful arrest requires a warrant unless:
(1) the officer sees defendant committing a felony or has probable cause (reasonable grounds) that defendant is committing or has committed a felony, or
(2) sees the defendant committing a misdemeanor. 

discussing probable cause is fact intensive

Question 104

Probable cause

Answer 104

Probable cause is the officer’s reasonable belief, based on officer’s factual and practical considerations, that the accused is commiting a crime or the place contains evidence of crime.

Question 105

Search incident to lawful arrest

Answer 105

A search incident to a lawful arrest (SILA) can be made if:
1. It takes place in connection with the arrest, or immediately thereafter, and
2. The area searched is within the arrestee’s wingspan (to prevent the arrestee from obtaining a weapon or destroying evidence within his reach.)

However, a search is not permitted once the arrestee is secured and cannot access the vehicle’s intereior, unless it is reasonable for the officer to believe that evidence of the offense that the arrestee has been arrested for might be found in the vehicle.

Question 106

Protective Sweep

Answer 106

If there is a reasonable belief, supported by articulable facts, that the accused’s accomplices are nearby, the officers may engage in a protective sweep to search for them in areas where they may be found.

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Facts indicate probable cause? [reasonable belief] that an accomplice may be present – ok to search areas where they may be found

Question 107

Inventory Search

Answer 107

Police may perform inventory search on the legitimately arrested person when he is booked per the department’s established procedure.

Question 108

Booking process

Inventory Search

Answer 108

Established police department procedure

Question 109

Exigent Circumstances

Answer 109

Exigent circumstance exists when there is a threat that, if the time is taken to obtain a warrant, the evidence will be lost or destroyed

Question 110

Emergency Aid Exception

Answer 110

e.g., police see someone injured or threatened with injury

Question 111

Exclusionary Rule

Answer 111

The usual remedy for a 4th Amendment violation is the exclusion of the evidence, unless the prosecution shows the police acted under a good faith belief they were acting lawfully.

Exclusion of evidence – “fruit of poisonous tree”
Good Faith Exception - Police acted under a good faith belief

Question 112

Inevitable Discovery

Answer 112

Evidence is admissible if the prosecutor can show the Police would have discovered the evidence even if they had not acted illegally.

If the prosecutor can show that the police would have discovered the evidence even if they had not acted illegally, the evidence will be admissible.

Question 113

Independent Source

Answer 113

Evidence is admissible if the prosecutor can show it was obtained independent of the original illegal conduct.

Admissible if the prosecutor can show it was obtained independent of the original illegal conduct.

Question 114

Impeachment

Answer 114

Even if illegally obtained, evidence admissible to impeach accused’s testimony

Question 115

Confession - 14th Amendment

Answer 115

Whether the confession was voluntary (not coerced) under the totality of the circumstances?

Question 116

Confession - 5th Amendment

Answer 116

The Fifth Amendment guarantees freedom against compelled self-incrimination. To protect this Fifth Amendment right, detainees must be given Miranda warnings prior to custodial police interrogation.

—
* Privilege against self-incrimination and right to counsel
* Before any custodial interrogation, defendant must be given Miranda warning (right to counsel and right to remain silent)

Question 117

Confession - 5th Amendment

Analysis; not rule

Answer 117

1. Before any custodial interrogation, defendant must be given Miranda warning (right to counsel and right to remain silent)
2. Separate IRACs for Custody and Interrogation, define and discuss separately
   (a) Custody: accused not free to leave or reasonably believes not free to leave
   (b) Interrogation: questions designed to elicit incriminating information
3. Accused claims right to remain silent:
   (a) Questioning may only be re-initiated after a reasonable amount of time has passed, but only on a separate crime
4. Accused claims right to counsel:
   (a) Questioning may not be re-initiated absent presence of counsel unless at the request of the accused
   (b) The accused is first into the general prison population for at least 14 days and re-Mirandized
5. Impeachment
   (a) Illegally obtained confessions and statements admissible to impeach accused as a prior inconsistent statement, but not admissible for their truth.

Question 118

Custodial Interrogation

Answer 118

Custody is the seizure or other situation where defendant is not free to leave or reasonably doesn’t feel free to leave. An interrogation is any statement or conduct reasonably likely to elicit an incriminating response from the accused.

Question 119

6th Amendment - Confession

Answer 119

Under the 6th Amendment, there is a right to counsel at all critical stages once adversary judicial proceedings have begun and defendant is charged. Police and informant that deliberately elicits statements from defendant without his cousnsel violates of 6th amendment.

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• If defendant blurts information out – no violations

Question 120

Pretrial Identifications - 6th Amendment

Answer 120

Right attaches post-charge, thus there is no 6th amendment right to pretrial identifications.

Question 121

Pretrial Identifications -
14th amendment due process clause

Answer 121

Under the Due Process Clause, the identification process: 1) cannot be unreasonably suggestive and 2) cannot be a substantial likelihood of misidentification.

Question 122

Unnecessarily Suggestive

pretrial ID - 14th DPC

Answer 122

Defendant proves it is unnecessarily suggestive when:
* the procedures used were unnecessary;
* the procedures were arranged by the government; and,
* they were suggestive.

Question 123

Reliability

pretrial ID - 14th DPC

Answer 123

Even if it was unnecessarily suggestive, defendant must prove that the suggestiveness results in an irreparable risk of unreliable identification.

Question 124

Pretrail identification and Post- Charge Lineup - 6th Amendment, right to counsel

Answer 124

Under the 6th Amendment, there is a right to counsel at all critical stages once adversary judicial proceedings have begun, including any post-charge lineup. There is no 6th Amendment right to counsel at a pre-charge lineup. And this right does not apply to photographic lineup identification.

Police and informant that deliberately elicits statements from defendant violates of 6th amendment.

Question 125

Excludes Subsequent Identification from Tainted Identification

Answer 125

Fruit of the poisonous tree – excludes subsequent identifications if they result from the tainted procedure.

Identifications independent from tainted procedure are still permitted.

Question 126

Co-Defendant Confessions -
6th Amendment Confrontation Clause

Answer 126

A co-defendant’s confession is admissible only if 1) statements concerning the accused are redacted or 2) the co-defendant is subject to cross-examination

Question 127

Informants - 5th amendment

Answer 127

Miranda warnings need not be given where the interrogation is by an informant who the defendant does not know is working for the police

Question 128

Informants - 6th amendment – post charge

Answer 128

• Government informant is placed in defendant’s cell, after defendant has been charged, and informant deliberately elicits statements is violation
• If defendant blurts information out – no violations

Question 129

Right to Speedy Trial

Answer 129

• Attaches when the defendant is arrested or charged

Element: To determine whether defendant has been denied a right to a speedy trial consider:
* Length of the delay,
* Reasons for the delay,
* Whether defendant asserted his right to a speedy trial, if defendant requested the delay, cannot claim a denial of speedy trial, and

Prejudice to the defendant

Remedy is dismissal with prejudice

Question 130

Bail

Answer 130

Accused is entitled to bail, in some appropriate amount, in non-capital cases, in an amount that is designed to make it unlikely that defendant will flee

Under the 8th amendment.

Question 131

Pleas

Answer 131

Pleas must be voluntarily and intelligently made.

Judge must advise defendant personally of: 1) nature of the charge, 2) critical elements of the offense, 3) maximum possible penalty and whether there are any mandatory minimum penalty, 4) right to plead not guilty, and that by pleading guilty defendant waives right to a trial.

Question 132

Voluntariness

Plea

Answer 132

The judge must determine that a plea is voluntary and intelligently made.

Question 133

Judge Properly Presented Effects of Guilty Plea

Plea

Answer 133

Judge must advise defendant personally of: 1) nature of the charge, 2) critical elements of the offense, 3) maximum possible penalty and whether there are any mandatory minimum penalty, 4) right to plead not guilty, and that by pleading guilty, defendant waives right to a trial. This advice must appear on the record.

Question 134

Ineffective Assistance of Counsel

Answer 134

Elements:
1. But for test
2. Prove that defendant would not have been convicted
Forces you to analyze and discuss the elements of the crime and likelihood of success

Question 135

Right to Testify

Answer 135

The accused has a right to testify based on the 5th amendment due process right to a fair trial.

An accused’s lawyer cannot prevent him from testifying

Question 136

Right to Represent Self

Answer 136

On the request of the accused, the court must determine whether the accused’s request is knowing and intelligent (rational and factual understanding of the proceeding), and whether the accused is competent to represent himself. Even if a court makes such a determination, the court should appoint counsel to be present and be ready to assist the accused if needed and requested by the accused.

Question 137

Double Jeopardy

Answer 137

Elements:
1. Right to be free of being tried more than once for the same crime.
Exceptions:
- Hung jury
- Mistrial
- Retrial (but not if attempted retrial is on the more serous offense)
- Breach of plea bargain

2. Same offense
   
   • Not the same offense if each crime requires proof of an additional element that the other crime does not require

A defendant cannot be convicted of both the greater offense and the lesser included offense (e.g., Robbery and Larceny; conspiracy and solicitation; murder and criminal battery of the same victim)

Double Jeopardy does not apply to separate sovereigns (different states; state v. federal prosecutions)