Criminal Law and Procedure Flashcards
Key principle #1: Know the basic elements of a crime—act, intent, causation and concurrence. Causation
has been tested twice on the MEE (both times combined with murder), and both times causation was
present.
Causation requires showing that the defendant’s acts were both the actual and proximate cause of
the outcome. Proximate cause is present if the outcome was foreseeable.
Key principle #2: understand what accomplice liability is and what it requires.
A person is guilty as an accomplice if he assists or encourages the principal with dual intents: (1) the
intent to assist the primary party, and (2) the intent that the primary party commit the offense
charged. Remember a person is not liable for accomplice liability—they are liable for the crime
committed through the theory of accomplice liability.
Key principle #3: it is important to understand murder and manslaughter distinctions.
Introduction to murder: state: “In order to be guilty of murder, the defendant must have the mens
rea of malice aforethought which is satisfied in most jurisdictions with intent to kill (first-degree),
with knowledge that his acts would kill (first-degree), with intent to inflict great bodily harm
(second-degree), or with reckless disregard of an extreme risk to human life (second-degree).”
* First-degree murder: this is the intent to kill with premeditation and deliberation.
* Second-degree murder: This is satisfied by the intent to inflict great bodily harm or by acting with
reckless disregard of an extreme risk to human life (depraved heart murder). (Note: it is also the
catchall—i.e., when an act constitutes “murder” but is not quite first-degree.)
§ Note that the requirement for depraved heart murder usually requires that the defendant
acted recklessly and that the defendant’s conduct shows a “high degree of indifference to
the value of human life.” (July 2007)
- Felony murder: This applies to any killing that occurs during the commission of a felony, an attempt
to commit a felony, or a flight from a felony. The felony must be inherently dangerous, and the
purpose of the felonious conduct must be independent of the homicide.
Manslaughter ?
- Voluntary manslaughter: an intentional killing of a human being without malice aforethought
committed in the heat of passion due to adequate provocation. - Involuntary manslaughter (misdemeanor manslaughter): The defendant causes the death of
another human being by engaging in conduct that creates an unreasonable risk of death or serious
bodily injury. The majority view is that the defendant must have acted “recklessly.” Some states say
that “gross negligence” is enough.
Key principle #4: The only inchoate crime that has been tested on the MEE is attempt. Know that the
mens rea is “intent” and the actus reus requires “acts beyond mere preparation.”
To prove attempt, the prosecution must prove two elements: (1) The defendant intended to commit
the crime, and (2) the defendant’s acts went sufficiently beyond “mere preparation” to commit the
crime. (The common law uses the words “dangerously close” to the crime, whereas the Model
Penal Code requires that the defendant’s conduct is a “substantial step” toward the crime and
corroborative of his criminal intent.) In most states, abandonment is not a defense to attempt.
Key principle #5: be familiar with criminal defenses that have been tested on Criminal Law MEE questions.
Duress: The defendant performs a crime because there was a threat or use of force by another
which caused a reasonable fear that, if the defendant did not perform the crime, either he or a third
person would suffer imminent death or serious bodily injury. One cannot use duress as a defense
to an intentional homicide.
- Insanity: The majority of states use the M’Naghten test. The defendant must prove he suffered a
disease of the mind that caused a defect of reason, and as a result he lacked the ability to know the
wrongfulness of the actions or understand the nature and quality of his actions.
Key principle #1: When the Fourth Amendment prohibition against unreasonable searches and seizures is tested, start your essay by identifying the Fourth Amendment. Keep in mind the below principles.
Standing: a person has standing to raise a Fourth Amendment challenge if he has an expectation of
privacy in the thing searched or seized. (July 2009)
* General rule: The Fourth Amendment applies to searches or seizures conducted by government
agents in areas where the complaining individual has a reasonable expectation of privacy. An agent
usually needs a warrant. However, there are many exceptions, including exigent circumstances,
search incident to arrest, consent, the automobile exception, plain view, inventory searches, special
needs, and Terry stops/frisks. The following have been tested on the MEE:
Plain view exception: if officers are lawfully in a position from which they view an object,
if its incriminating character is immediately apparent, and if the officers have a lawful right
of access to it, they may seize it without a warrant. (July 2011)
Terry stops and frisks: the Fourth Amendment permits detention of an individual for a
brief period of time if the police have “reasonable, articulable suspicion” that the individual
has been recently involved in criminal activity.
Key principle #2: If the essay tests confessions, be able to distinguish between the Fourteenth
Amendment, Sixth Amendment, and Fifth Amendment, as well as when the rights under those
Amendments attach. Know that anything other than an unequivocal request for counsel will not be
sufficient to invoke one’s Fifth Amendment Miranda rights. Also note that officers are virtually never
required to tell the defendant that a lawyer is trying to contact him. These points have been emphasized
on past MEE questions.
Fourteenth Amendment—voluntariness under the Due Process Clause
The standard for excluding a confession under the Due Process Clause is (1) whether the
police subjected the suspect to coercive conduct and (2) whether the conduct was
sufficient to overcome the will of the suspect. Neither the confession nor the fruits of the
confession can be admitted if the Fourteenth Amendment is violated. (Feb 2008)
- Sixth Amendment—right to counsel
The Sixth Amendment, as applied to the states through the Fourteenth Amendment,
provides that the accused has the right “to have Assistance of Counsel for his defense.”
It attaches when judicial proceedings have begun—i.e., when the accused is formally
charged via indictment, arraignment, preliminary hearing, etc. It does not attach upon
arrest. It applies to all “critical stages” of the prosecution after formal charges are filed.
Once it attaches, any attempts to deliberately elicit an incriminating statement about the
offense that the defendant was charged with, in the absence of counsel or a knowing,
intelligent, and voluntary waiver, violates the Sixth Amendment.
Fifth Amendment—right to counsel and right to remain silent:
Fifth Amendment—right to counsel and right to remain silent: state: “Law enforcement officers are
required to read Miranda warnings to a suspect when the suspect is subjected to an in custody
interrogation.”
Public safety: warnings are not required if the questions are intended to protect public
safety (e.g., to secure weapons after a shooting).
Custody: a suspect is in custody if there is a formal arrest, or a restraint on freedom of
movement to the degree associated with a formal arrest.
Interrogation: this includes questioning initiated by law enforcement officers or any words
or actions that the police should know are reasonably likely to lead to an incriminating
response from the suspect.
A valid Miranda waiver: The suspect must make a “knowing, intelligent, and voluntary”
waiver. This is a low bar.
A valid Miranda invocation: for both the right to remain silent and the right to counsel, the
suspect must be explicit, unambiguous, and unequivocal in making the request (e.g., “I
think I need a lawyer” is not enough).
If a violation occurs: The statements are excluded from the prosecutor’s case-in-chief. The
physical fruits are not excluded if the statements were made voluntarily.
