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MBE > Criminal Law and Procedure > Flashcards

Criminal Law and Procedure Flashcards

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1
Q

Insanity - M’Naghten Test

A

When one has a mental disease and can’t appreciate the nature and quality of their action or understand that what they’re doing is wrong

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2
Q

Insanity - MPC

A

When the defendant lacks the substantial capacity to understand what they’re doing is wrong

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3
Q

Insanity - Standard of proof

A

Clear and convincing evidence

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4
Q

Voluntary intoxication - Definition? Used as a defense?

A

Definition = Voluntarily getting drunk
Used as a defense = for specific intent crimes because it negates the element of intent

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5
Q

General intent crimes?

A

Battery
Arson
Rape
Kidnapping
Manslaughter

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6
Q

Involuntary intoxication — when is it used as a defense?

A

Involuntary = A defense to all crimes
Voluntary = A defense to specific intent crimes

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7
Q

When can I use mistake as a defense?

A

Specific intent crime = Any mistake will be a defense, reasonable or not (bc it negates intent)

General intent crime = Mistake must be reasonable to use a defense

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8
Q

What are the types of impossibility, and when is it a defense?

A

Legal impossibility = Always a defense (burning your own house down simply doesn’t meet the elements of arson)

Factual Impossibility = NEVER a defense because you technically did the crime (guy has sex underage girl who lies about her age is guilty of statutory rape even though she lied)

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9
Q

Entrapment as a defense?

A

Applies when (1) law enforcement creates the criminal activity, and (2) the defendant is not predisposed to commit the crime

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10
Q

When can you use duress as a defense?

A

When you reasonably believe that you are under threat of great bodily harm or death.

EXCEPT: Duress is never a defense to murder

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11
Q

Defense of self, others, and property?

A

Requires reasonable belief of imminent danger or bodily harm

Can only use the same force being used against you. Deadly force is only allowed if you deadly force is being used against you.

Property = only reasonable force is allowed; deadly force is only allowed if you think you’re about to be killed

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12
Q

Larceny

A

Specific Intent Crime

Trespassory taking and carrying away of the personal property of another with intent to deprive
—Only needs to move an inch, and even if you put it back: if intent when moving was to steal, it’s larceny

RARE exception: continuing trespass = when you wrongfully take something just to examine, but you decide later to actually steal it

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13
Q

Burglary

A

Common law:
Breaking and entering
(Breaking can be physically, by fraud, or by force)
Into the dwelling of another
At night
With intent to commit a felony

Felony does NOT need to be complete, just intended at the time of the breaking

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14
Q

Robbery

A

Trespassory taking and carrying away of the property of another by intimidation, force, or fear.

It looks like larceny but turns on HOW you come to have the property.

Larceny MERGES into robbery (merger doctrine)

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15
Q

Assault

A

Two types:
(1) Intent to commit battery

(2) Intent to place someone in imminent fear of harmful or offensive conduct

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16
Q

Larceny by trick

A

Obtain POSSESSION to property by making a false statement. This crime is merely the words.

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17
Q

False pretenses

A

Obtaining TITLE to property by making a false statement

Common example: two-way fraudulent transactions (selling fake rolex)

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18
Q

Embezzlement

A

When you’re lawfully in possession of someone’s property, but then you convert it for your own use

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19
Q

Receiving stolen property

A

(1) you’re in physical possession of the stolen property

(2) you know it was stolen

(3) you intend to keep it

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20
Q

Forgery

A

Fraudulent making of a false document + with legal significance + Intent to make wrongful use of it

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21
Q

Accomplice Liability

A

(1) specific intent to achieve the crime

(2) aid or abet the completion of the crime

If crime is complete = accomplice is liable of the completed crime, as well

Crime not compete = only guilty of accomplice liability

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22
Q

Accessory before the fact? After the fact?

A

Before = Looks like accomplice liability, BUT you are NOT present at the scene of the crime (pretty narrow, rarely tested)

After = (1) felony is complete (2) accomplice knows it was complete (3) accomplice helps you get away with it! (housing you, destroying the evidence, etc)

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23
Q

General Intent Crimes and definitions?

A

Battery = unlawful application of force

Arson = malicious burning of the dwelling of another

Rape = unlawful sexual intercourse between male and female without consent (usually statute is provided)

Kidnapping = unlawful restraint of a person’s freedom by force (usually statute is provided)

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24
Q

What is the mens rea of a “malice crime” committed “maliciously?”

A

Malicious = Reckless

Applies to general intent crimes, even though the word malice seems like specific

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25
Q

Who do search and seizure rules apply to?

A

Government actors! Cops, pigs, 12. Or someone acting under the direction of the cops. (rats, lackeys, goons)

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26
Q

What is a search?

A

A government search somewhere where there’s a reasonable expectation of privacy — enclosed spaces

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27
Q

Open Fields Doctrine

A

Illegal conduct done in the open where anyone can see and there’s no expectation of privacy can be accosted—That’s not a search.

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28
Q

What is the standard for a search?

A

Cop has to have probable cause —> Reasonable belief that it’s more probable than not that a crime took place

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29
Q

Requirements for a search

A

(1) government actor
(2) reasonable expectation of privacy
(3) probable cause
(4) WARRANT

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30
Q

What is the warrant requirement?

A

To conduct a search, there must be a warrant (1) issued by a neutral, detached magistrate (2) with fresh facts not out-of-date that (3) lists very specifically where the cop can search

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31
Q

Knock-and-Announce Rule

A

If cops have a warrant, they typically have to knock and announce their presence before entering. But if they DON’T,,,, the search is still valid

32
Q

Can informants establish probable cause?

A

Yes—cops can rely on informants (AKA narcs) for probable cause

33
Q

Will an illegal search automatically dismiss indictment?

A

No!

34
Q

What is a Protective Sweep and when can it happen?

A

Protective sweep = When the cops look around the house to make sure there’s no other criminals

When allowed = Only if there are grounds for the cop to think there are other criminals (facts will tell you)

35
Q

Warrant exception: Consent

A

If you consent to the search, the cop doesn’t need a warrant.

Who can consent = if you own or have apparent authority over the premises or property or part of the property

36
Q

Co-occupant consent rule?

A

If two people share a house and one person says no = cops can’t search

Only one person home and they consent = cops can search

Non-present co-occupant cannot refuse the search

37
Q

Search incident to lawful arrest

A

Once cops arrest you lawfully, they can search you and anywhere in your wingspan

38
Q

If you are arrested in the car, when can cops search the passenger compartment?

A

Cops can search passenger compartments if:

(1) defendant is not secured (uncuffed with access to car)

(2) reasonable belief of evidence of CRIME OF ARREST in the car

39
Q

Inventory Search

A

After the arrest at the police station, cops can search the person and whole car

40
Q

Exigent Circumstances

A

Cops can get evidence without a warrant if they have a reasonable belief that it could be lost or destroyed

41
Q

Auto Exception - Traffic stop: Can cop search the car?

A

If there was no reason to pull someone over, that’s an illegal stop and nothing found during that stop is admissible.

Traffic stop = Cop can give you a ticket, he cannot search anything without more evidence that you’ve committed a crime

Traffic stop with other suspicious behavior = Cop can search the car if there’s evidence of other criminal activity

42
Q

Automobile stop - Probable cause

A

Cops can search entire car if there’s probably cause that the car is carrying contraband (ex: pulling over car flagged in amber alert)

43
Q

Border Search and Foreign land searches—Warrant requirement?

A

No warrant is necessary and these rules don’t apply at the border and on foreign land

44
Q

Is a dog sniff in a public place a search?

A

No—the dog is not conducting a search.

45
Q

Stop and frisk — When are these allowed?

A

Stop = Cop can stop you when there’s reasonable suspicion that criminal activity is afoot

Frisk = Cop can frisk if there is reasonable belief that you’re armed and dangerous

46
Q

Random automobile stops

A

Cops are not allowed to stop random cars based on whims! It is only allowed if there are regular checkpoints or generic method for searching not related to the car occupants themselves

47
Q

When are you entitled to Miranda rights?

A

When you are making a statement in a custodial interrogation

48
Q

What is a custodial interrogation?

A

Custody = when a reasonable person feels like there’s no option to leave (objective standard) handcuffs not required

Interrogation = When the cop attempts to elicit a criminal response

49
Q

What are the Miranda warnings?

A

(1) right to remain silent
(2) anything you say will be held against you
(3) right to counsel, either selected or appointed

50
Q

What happens when a person asks for their lawyer during a custodial interrogation?

A

All interrogation questioning must stop! cease!

51
Q

What is required to waive your Miranda rights?

A

You have to waive them KNOWINGLY and VOLUNTARILY, based on the totality of the circumstances

52
Q

Right against Self-Incrimination

A

You can’t be forced to incriminate yourself, but you can be made to perform any necessary physical demonstration

53
Q

What is the limit to suspect lineups?

A

The lineup cannot be unnecessarily suggestive to single someone out

54
Q

Is there a right to counsel at a lineup?

A

Before the indictment = No

After indictment = Yes

55
Q

Right to counsel

A

5th amendment right to counsel = before the indictment

6th amendment right to counsel = after the charges are brought

56
Q

When do you have a right to counsel and can you waive it?

A

You have a right to counsel at all critical points in the proceeding, and yes you can waive it

Critical points are usually post-indictment

57
Q

Can two defendants share counsel?

A

Yes, unless there starts to be a conflict

58
Q

What right does an undercover cop boasting in a jail cell violate?

A

It violates the right to counsel, NOT Miranda rights

59
Q

Guilty plea requirements

A

must be voluntarily and intelligently so you know what the consequences are

60
Q

Severing the trial

A

If there is unfair prejudice in a shared trial, a defendant can sever the trials

61
Q

Fair trial requirements?

A

(1) impartial judge

(2) defendant must be competent to understand charges, even if it requires medication

62
Q

Jury Trial rights for a fair trial?

A

Sentence is longer than 6 months

Jury is a cross-section of community

State trial with 6 members = must be unanimous

State trial with 12 members = doesn’t have to be unanimous

Federal trial with 12 members = must be unanimous

Excluding jurors based on race or sex —> Violates Equal Protection

63
Q

Is there a right to a public trial? Can the press attend?

A

Yes, there’s usually a right to a public trial, and press is allowed to attend, unless the judge has an overriding interest to close it

This rule doesn’t apply to grand jury proceedings

64
Q

What is the right of confrontation?

A

You have the right to confront and cross-examine all witnesses

65
Q

When can a co-defendant’s confession be used against the other?

A

Only if the confessing co-defendant is available to testify

66
Q

What must prosecution prove? And the defendant?

A

Prosecution = must prove every element beyond a reasonable doubt

Defendant = must prove defenses by a preponderance of the evidence

67
Q

When are mandatory presumptions allowed?

A

Not in criminal cases

68
Q

Grand jury rules

A

(1) the accused has no right to be present during grand jury

(2) exclusionary rule does not apply, so even illegally obtained evidence is admissible

(3) grand jury witness has no right to counsel INSIDE the room

69
Q

What is Double Jeopardy and when does it apply?

A

Double jeopardy = can’t be tried for the same thing twice

Does NOT apply to anything that happened before trial #1

70
Q

When does trial #1 begin for double jeopardy purposes?

A

Jury trial = when the jury is sworn and impaneled

Not a jury trial = when the first witness is a sworn in

71
Q

When does double jeopardy not apply?

A

Double jeopardy does not apply if the first trial did not end with a judgment on the merits. If it ended due to a mistrial or technicality, defendant can be retried.

72
Q

What is the separate sovereign exception?

A

Separate sovereign is an exception to Double Jeopardy, which allows for you to be (1) charged for the same crime in different states; (2) charged in both state and federal court for the same crime; (3) but NOT charged in different counties within the same state

73
Q

Double jeopardy—collateral estoppel rule?

A

There is no retrial allowed when the second trial requires an element that the defendant was acquitted of

74
Q

Cruel and unusual punishment tule

A

Sentence must be proportionate to the crime AND to the sentences of other criminals for similar crimes

75
Q

Is there a right to counsel during sentencing?

A

Yes, there’s a right to counsel during sentencing, AND you have the right to remain silent

76
Q

Is Death Penalty cruel and unusual?

A

No, death penalty is not cruel and unusual AS LONG AS there are procedural safeguards to prevent arbitrary or discriminatory sentencing.

77
Q

Who cannot be subjected to the death penalty?

A

(1) people with mental issues

(2) people who were 18 at the time of the crime

MBE (8 decks)

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