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CA Bar Exam Rules to Review > Criminal Law And Procedure > Flashcards

Criminal Law And Procedure Flashcards

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1
Q

When does prohibition of questioning a detainee expire?

A
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2
Q

Open fields doctrine
Fly Over
Sensory enhanced Tech

A

Cutting barbed wire to enter open fields IS ALLOWED and evidence found is ADMISSIBLE

Tech = violated expectation of privacy, but if available to the public may be allowed

Fly over = flying over an open field or yard to take AERIAL photos or observe with eyes only

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3
Q

Conspiracy and when can you withdraw from it

A

1) 2 or more people
2) with the specific intent to enter into an agreement
3) with the intent to purse the SAME unlawful objective

MPC = 1 guilty mind needed + overt act in furtherance of the unlawful objective

Co-Conspirator = liable for the conspirarcy itself and ALL forseeable crimes committed by the others in furtherance of the unlawful objective

Withdrawal is NOT possible for the conspirarcy itself, but can be for the subsequent crimes

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4
Q

Affirmative defenses

And what burden of proof

A

If a criminal asserts an affirmative defense then the burden of persuasion moves to him to prove that defense ONLY by the preponderance of the evidence

Consent
Self-Defense
Insanity

Note: a state law can remove the affirmative insanity defense if they want and place any rules on it they want

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5
Q

Specific intent crimes

A

Cat visa

Conspiracy
Assault
Theft crimes

Voluntary manslaughter
Intent first degree murder
Solicitation
Attempt

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6
Q

Felony murder

A

No need to actually commit the crime. The attempt of just doing it is enough.

Best defense: rebut the underlying crime

Agency theory = liable only if you or co- agent killed

Proximate cause theory= defendant liable for third party killing innocent

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7
Q

Common Law Murder

A

Murder is the unlawful killing with malice aforethought.

  • Intent to Kill
  • Intent to cause serious bodily injury
  • Intent to commit the underlying felony
  • Reckless disregard for an extreme risk to human life
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8
Q

When does double jeopardy attach during a criminal trial?

Exceptions

A

Double Jeoporady attaches once the Jury has been inpanled and sworn in and he can NOT be tried again on the same, lesser, or greater crime UNLESS and exception applies

Note: 2 crimes are NOT the same offense if EACH crime requires proof of an additional element that the other crime does NOT require

**Exceptions **
* hung jury
* 2 states charging for the same crime,
* grand jury,
* pre-trial preliminary hearing,
* manifest necessity
* defendant wrongful conduct
* appeals court overturns descision based on procedural grounds = person can only be tried for the crime he is was convicted of in the first case NOT anything greater

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9
Q

Right to be present at choosing jury?

A

Yes! For non-misdemeanor cases defendant must be present at after formal proceedings start including jury impaneling

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10
Q

When is a person charged with involuntary manslaughter for commiting a misdemeanor that’s results in a death?

A

PROXIMATE CAUSE = Foreseeable or natural consequence of the misdemeanor

Or wrongful act

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11
Q

Jury instruction in a criminal trial

How many jurors in a criminal trial?

A

Judge can NEVER direct a jury to find the defendant guilty in a criminal trial

Also the the jury instructions must keep burden of proof on prosecution and not put it on the defendant unless it’s an affirmative defense

Minimum 6 jurors in a Criminal Trial and it MUST be unanimous for any serious crime where the prison term could be 6 months or more

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12
Q

Adding a enhanced sentencing factor in a criminal case must be decided by who?

A

Any fact that increases the penalty for a crime beyond the original amount must go to the Jury to decide and must be approved beyond a reasonable doubt

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13
Q

Ineffective counsel you need to show
Substitute Counsel Request
Right to speedy Trial
self representation

A

6th amendment right for criminal defendants = right attaches to the specific offense only when indicted or formal charge and ends after sentencing. Applies to all critical stages including: post charge lineup, show up, sentencing, any questioning by gov (NO: photo identification or take physical evidence)

**Ineffictive Counsel: **
1) Performance deficient due to failure to act as a reasonable attorney
2) Reasonable probability that but for the deficiencies the result would have been different

Substitute Counsel = court will allow if the interests of justice so require considering conflicts, timeliness, D and courts interests.

**Right to speedy trial **= reason for the delay, did defendant ever object to the delay, how long the delay is for, did defendant suffer any prejudice as a result of the delay?

**self representation **= knowingly + intelligently + judge makes him aware of the dangers and disadvantages of self representation

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14
Q

Police deceit to entry

A

When a police officer lies to gain entry into a persons house, and the officer is invited for purposes of transacting unlawful business. Even if it’s a House, it does not get any greater of a privilege than a regular business woould.

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15
Q

Assault both types

A

Attempted Battery - Specific intent to cause bodily injury or offensive contact

Assault - General Intent = intentional creation, other than by mere violent words, of a reasonable apprehension in the mind of the victim of imminent bodily harm (V must be aware)

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16
Q

**MPC **

When does a person act recklessly?

When does a person act knowingly?

A

recklessly (maliciously) = A person acts recklessly (maliciously) when he consciously disregards a substantial or unjustifiable high risk would result and this disregard is a gross deviation from the lesser standard of reasonable care
Example: driving tractor while drunk that flattens someone’s house

**knowingly **= A person acts knowingly when they are aware that their conduct WILL necessarily or VERY LIKELY cause a certain result.

**Voluntarily Intoxication **is ONLY a defense when the person MUST act knowingly, purposefully, or with Specific Intent. NOT applied for recklessky or maliciously

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17
Q

Reasonable Suspicion

Probable Cause

A
  • Reasonable Suspicion = articulable facts that would lead a reasonable officer to believe suspect committed a crime or plans to commit crime
  • Probable Cause = trustworthy facts or knowledge sufficient for a reasonable officer to believe that the suspect committed a crime or plans to commit crime
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18
Q

 Stop and Frisk

A

RS can stop a person for a reasonable time to verify or dispel the suspicion. RS the person is armed or dangerous they may frisk for weapons using plain feel. Upon plain feel, if police have reasonable belief what they feel is contraband or a weapon they may seize it and its admissible, but cannot manipulate item to develop reasonable belief (immediately obvious)

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19
Q

Conspirarcy

A

Conspiracy
1) 2 or more people
2) intend to make an agreement
3) BOTH intend to achieve the SAME unlawful objective

MPC = overt step + only 1 person needed to have a guilty mind

CO- Conspirator = is liable for the crimes of the other conspirators that are done with the objective to carry out the underlying conspiracy and it was a natural and probable consequence of the conspiracy (foreseeable)

Can NOT withdraw from the conspiracy itself, but CAN withdraw from SUBSEQUENT crimes:
1) affirmative act that notifies all members you are withdrawing
2) there is still enough time for the other members to withdraw as well

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20
Q

Accomplice

A

accomplice = the accomplice knows about the crime either before or during the crime itself and intends that the crime be completed with the intent to assist the principal by aiding, abetting, or facilitating in the commission of the underlying crime itself.

accessory after the fact = person knowingly aids a felon + with the intent they avoid/escape from arrest, trial, conviction, or punishment.
- Does NOT matter if the person you helped is NOT prosecuted or was aquitted of the offense

**Not valid: **
- merely being present while the crime is being committed
- a protected class of persons by the law
- crime requires 2 people to commit it
- not allowed for involuntary manslaughter

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21
Q

Arson

A

Maliciously burning the dwelling of another causing charring

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22
Q

Minority Rule = Retreat Doctrine

A

You are REQUIRED to retreat if YOU INTEND to use DEADLY FORCE to defend yourself + YOU CAN do so with COMPLETE Safety

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23
Q

◾ Voluntary Manslaughter

A
  • Imperfect Self-Defense
  • Adequate Provocation

Adequate provocation is established if:
(1) the defendant was provoked (a sudden and intense passion caused him to lose control);
(2) a reasonable person would have been provoked;
(3) there was not enough time to cool off before the killing;
(4) the defendant did not cool off before the killing.

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24
Q

Involuntary Manslaughter

A

* Involuntary manslaughter is an unintentional killing of a person committed:
(a) recklessly – conscious disregard of an unreasonable risk of death or serious bodily injury;
(b) under the misdemeanor-murder rule – a killing that results during the commission of a misdemeanor);
(c) during a non- dangerous felony – a felony not included under the felony murder rule); OR
(d) criminal negligence – defendant knew or should have known that his conduct had a high or unreasonable risk of death and his actions were a gross deviation from how a reasonable person would have acted.

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25
Q

Battery
Assault

A

Battery
1) unlawful application of force
2) against another (directly or indirectly)
3) causing a harmful or offensive contact
4) caused by the defendant with general intent to do the unlawful act (intent to cause injury NOT required)

Assault
1) Attempted Battery OR
2) intentional creation of a reasonable apprehencion of IMMINENT bodily harm to a person

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26
Q

Kidnapping

False Imprisonment

A

Kidnapping
1) confining, restraining, or moving a person
2) without consent or valid by law

False Imprisonment
1) unlawful
2) confirnement of a person
3) against their will
4) with knowlege that the restriction is unlawful

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27
Q

Embezzlement

A

1) person lawfully obtains possession of the property
2) that lawfully belongs to another person
3) and then fraudulently or wrongfully convert it
4) with the specific intent to permanently deprive the person

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28
Q

Receiving Stolen Property

A
  1. a person receives possession of stolen property
  2. that they KNOW is stolen at the time they receive it
  3. that is ACTUALLY stolen
  4. With the specific intent to permanently deprice the owner of the property
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29
Q

Robbery

A
  1. taking and carring aware personal property of another person
  2. in their presence
  3. by use of force or threat of immediate physical harm
  4. with the specific intent to permanently deprive the owner of the property

Armed Robbery = plus the use of a dangerous weapon

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30
Q

Burglary

A
  1. the breaking and entering
  2. of a dwelling
  3. of another
  4. at night
  5. for the purpose of committing a felony inside
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31
Q

Extortion

A
  1. illegally obtaining property
  2. by force or threat
32
Q

Attempt

A
  1. Specific Intent to commit a crim
  2. took an overt act beyond mere prep towards it

MPC = substantial step

No Defense = abandonment or withdraw
YES Defense = voluntary intox or legal impossibility

33
Q

Soliciation

A
  1. a person requests another person to commit a crime or join him in a crim
  2. with the specific intent that the crime be committed
  3. and the other person receives the request — No response is required from the other person.
34
Q

Legal Impossibility
Factual Impossibility

A

Legal impossibility IS A DEFENSE to a crime. Legal impossibility occurs when the defendant’s acts would not have constituted a crime, EVEN IF the acts were as the defendant assumed.

  • Factual impossibility is NOT A DEFENSE to an incomplete crime. Factual impossibility occurs when the defendant’s acts would have constituted a crime, BUT FOR a circumstance or fact unknown to the defendant (the defendant would have committed a crime if the facts were as the defendant assumed).
35
Q

Mistake of Fact
Mistake of Law

A

Mistake of fact = can negate the state of mind IF
Specific Intent = any reason
General intent or malice = Reasonable

Mistake of law (not knowing the activity was illegal) is
generally NOT a defense to a crime.

36
Q

Insanity as a defense to a crime
Diminished Capacity

A

Most states require the defendant to prove insanity by the preponderance of the evidence (or by clear and convincing evidence in federal court).

  • M’Naghten test = due to mental disease/defect + lacked ability to know: nature and quality of act OR wrongfulness of act
  • Irresistible impulse = due to mental illness + unable to control actions or conform his conduct to the law
  • MPC =as a result of mental illness + lacked substantial capacity to appreciate wrongfulness of his act or conform conduct to law
  • Durham test = unlawful act was product of mental disease/defect + but for mental illness, D would not have acted
  • Diminished Capacity is a defense to a specific intent crime when the person has a mental illness, but its not insanity to show lack of intent required to the crime or reduce the charge to a lesser crime.
37
Q

Rape

A

unlawful sex with woman + without valid consent + not spouse (modern = gender neutral, includes spouse)

38
Q

First Degree Murder

A

premeditation (reflect/plan) + deliberation (cool/dispassionate)

OR felony murder of BARRK

39
Q

Gross Negligence

A

extreme indifference to action consequences, willful misconduct, failure to take obvious precautions

40
Q

Arson

A

Dwelling + of another + burned by a fire (charring) + with malice

Mens Rea = Malice = Plain negligence is NOT enough. Must be extreme Recklessness + obvious or high risk that the structure would burn will occur

Actus Reus = does NOT have to be intentional. JUST needs to be a foreseeable consequence of the defendants extremely reckless actions

41
Q
  • False Pre tense
  • larceny by trick
  • forgery
A
  • False Pre-Tenses= STAMP =specific intent to defraud at the time of possession + title to property + actual reliance + misrepresentation + past or present fact
  • Larceny by Trick = MAPS
  • Forgery = CLUES = change legal significance of + legal document + understand is false + by edit/offer/make + Specific intent to defraud
42
Q

o Malicious Mischief

A

specific intent + destroy or damage + property of another + impairing the use or lowering the value

43
Q

All the different types of defenses to protect self etc

A

o Self defense =actual belief + objective reasonable belief to protect himself from + imminent unlawful force + proportionate force used

o Initial Aggressor Self Defense = communicates desire to withdraw before need for self-defense OR V escalates minor dispute to deadly

o Imperfect SD = Reduce murder to VM if: D initiated altercation or D unreasonably believed deadly force

o Defense of Dwelling = prevent unlawful entry into dwelling, Deadly force if: prevent attack to self/family OR prevent entry if felony intent to enter

o Defense of property = non-deadly force reasonably necessary to defend against unlawful interference with possession or trespass

o Recover Property = immediate Hot pursuit + reasonable force to recover property

  • Crime Prevention = use force to prevent a felony and deadly force to prevent a dangerous felony
    1) the person harmed threatended to kill or cause serious bodily injury
    2) the person harmed was actually guilty of the felony
44
Q

Entrapment

A
  1. law enforcement originally created the criminal plan/idea
  2. D was NOT pre-disposed to commit the crime
45
Q

Necessity as defense to a crime

A

reasonably believed conduct necessary to avoid an imminent and greater injury to society + objectively reasonable

Invalid: crime caused death or D caused the events giving rise to the necessity

46
Q

Dog Sniffing

A

can be used for: sniffing luggage at airport or cars during legitimate traffic stop, but can not extend the time of the stop, unless there is other reasonable suspicion. NOT: to sniff home without a warrant or exception

47
Q

Checkpoint or roadblock

A

non-discriminatory/neutral + articulable standard to stop cars + related to driving or special law enforcement reason (not looking for contraband)

48
Q

Routine Traffic Stop

A

To stop a car police must have reasonable suspicion a law was violated. (ulterior motive-ok) Car cannot be stopped any longer than needed to: give a ticket or dispel RS + ordinary inquiry incident to stop. Officer can order everyone in the car to step out of the car (implied safety). If officer reasonably believes weapons may be present, he can search the passengers, interior of car including glove compartment, but NOT the trunk

49
Q

Stop and Frisk

A

RS can stop a person for a reasonable time to verify or dispel the suspicion. RS the person is armed or dangerous they may frisk for weapons using plain feel. Upon plain feel, if police have reasonable belief what they feel is contraband or a weapon they may seize it and its admissible, but cannot manipulate item to develop reasonable belief (immediately obvious)

50
Q

 Public arrest or Emergency Arrest

A

 Probable Cause

51
Q

 SILA House

A

While lawfully arresting a person in their home police can check area within the arrestee’s immediate control (wingspan) and do a protective sweep of the house IF reasonable belief based on specific articulable facts other accomplices may be present or safety

52
Q

 SILA Car

A

While lawfully arresting a person whose been pulled over, Police can check area within the arrestee’s immediate control (wingspan) including the car if unsecured and may access the interior of the car OR reasonably believes car has evidence of the offense causing the arrest (NOT Trunk w/out PC)

53
Q

 SILA inventory search

A

After a lawful arrest, police may search arrestees impounded car or belongings/seized property when jailing them, but NOT the digital information on their cellphone without a warrant

54
Q

Full Car Search

A

PC car contains contraband or other evidence of a crime + the PC arises BEFORE the search starts THEN police can search the ENTIRE car including passengers, their belongings, and containers that MAY contain the evidence they are looking for or tow it to search later (RV is a car unless it’s at a fixed site)

55
Q

Plain View

A

Police may seize evidence in plain view/smell without a warrant if they are lawfully in the location from which evidence to be seized can be viewed + its immediately apparent that its contraband or criminal activity + PC to believe the plainly viewed evidence is contraband or relates to a crime (binoculars to see the item is valid)

56
Q

valid consent to search

A

voluntarily + intelligently + apparent authority + within scope consented to (tenant over landlord)

57
Q

Exigent hot pursuit

A

pursuing a felon and reasonably believe the suspect in hot pursuit has entered a particular premise (within 15 min) and have probable cause about the felons crime

58
Q

Exigent car

A

PC + prevent imminent destruct of evidence if they were to wait for warrant

59
Q

Exigent house

A

King: PC + prevent imminent destruction of evidence + police didn’t create the EC violate 4th

60
Q

Exigent Emergency

A

police may make a warrantless entry into a home if they have an objective reasonable basis for believing the person within the house in in need of immediate aid, poses a danger to himself, or others

61
Q

Administrative Search

A

Highly regulated business or industry (building code, food safety, airline passenger, junk yard)

62
Q

Public School Search

A

school official on their own + moderate chance of finding wrongdoing evidence + procedure for searching relates to objectives of doing the search + search is not excessively intrusive (random urine tests for extracurricular activities are okay)

63
Q

Self Incrimination

A

5th amendment

Self-incrimination = Privilege is for compelled testimonial or communicative evidence, NOT: lineups and physical evidence.

Due Process - Confession =confession must be voluntary to be admissible TOC test (age, MP condition, education, duration, manner, setting) Confession obtained by police coercion is inadmissible and cannot be used to impeach D either
Confession can be used for = impeachment of their own prior inconsistent statement, if the declarant is willing to testify and subject to cross X, or can be used against a co-defendant if co-defendant is claim their own statement was obtained coericively

Due Process – Identification = right violated if identification of the D based on TOC is unnecessarily suggestive and so conducive to mistaken identification that it is unfair to defendant (applicable to states though 14th amendment)

Pleas = competent: knowingly, voluntarily, intelligently + understand the elements of the crime with the max and min sentence + understands the consequences of the plea that he is waiving his right to a jury trial + on court record
- (within courts discretion to refuse if they think D didn’t do the crime and no obligation of prosecution to agree to plea)

64
Q

Invoke right to silence
Invoke right to counsel

A

Silence = unambiguously assert right + STOP + only suspect can re-initiate + substantial time (few hours), re-give MW and ask questions on unrelated crime

Counsel = unambiguously assert right + STOP + after return to normal life + 14 days then resume questioning

65
Q

Confrontation Clause

A

6th amendment

  • D in a criminal prosecution right to confront adverse witness including cross exam + issue subpoena to compel testimony of adverse or hostile witness.
  • 3rd person TESTIMONIAL statements may NOT be used against D, unless declarant available for cross exam either during trial or when statement was made.

Nontestimonial = statement made during police interrogation indicating the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency like a 911 call. Objectively determined.

Testimonial = circumstances indicate there is no ongoing emergency and the primary purpose of interrogation is to establish or prove past events potentially relevant to later criminal prosecution

Joint co-D = 2 defendants jointly tried and one of them confesses, the right to confront an adverse witness prohibits using that statement against the other defendant, unless the statement can be redacted or declarant takes the stands and is subject to cross

Severance of Joint trial = out of judicial economy courts prefer to try 2 defendants of the same crime in the same trial, but will sever the defendants if a joint trial would result in substantial prejudice to 1 of the defendants

66
Q

Criminal D right to a jury trial

A

6th amendment

Right to jury = Federal criminal Defendant has a right to jury trial for serious offenses that have more than 6 months of potential prison

Waiver = voluntarily + knowingly + intelligently

Number = 6 person or federal criminal trial = unanimous verdict; 12 person = majority (modernly unanimous)

Impartial = fair cross section of a community where no distinctive group is proportionally excluded from the group the jury is selected from due to a systematic exclusion

Voir Dire = each side had unlimited strikes for cause (bias, prejudice, related) and 20 peremptory strikes in death/life sentence criminal trial and 10 in normal criminal trial, for any reason that is gender and race neutral

Right to speedy trial = court balances: length of delay, reason for delay, prejudice to defendant, time and manner D asserts his right

Right to preliminary hearing = if probable cause has not been established, unless pleads guilty or waives his right

67
Q

Exclusionary Ryle

A

Judge made rule prohibits prosecution from introducing evidence obtained in violation of 4, 5, 6, amendment

Standing = evidence wrongfully obtained violated the Defendants constitutional rights NOT the rights of a third party

Fruits of the Poisonous tree = additional evidence found as a result of an initial illegal search/seizure is tainted and inadmissible

Independent source = evidence could have been obtained legally from an independent source separate from the illegal source

Inevitable discovery = evidence would have inevitably been discovered by other police techniques had it not been first illegally obtained

Purged Taint = sufficient time has passed in between the illegal action and the discovery of the evidence where link is too tenuous

Good Faith Exception = Officer acts in reasonable reliance on a facially valid warrant, but is later found as invalid due to lack of probable cause will not be excluded by the exclusionary rules, unless affidavit lacked PC, warrant is defective on its face, misled magistrate, magistrate wholly abandoned role

Harmless error = even if evidence is offered that should not have been, Gov can show there was other overwhelming evidence of guilt and thus it was harmless beyond a reasonable doubt

68
Q

8th amendment protections

A

o Bail = not be excessive or unduly high based on: seriousness of offense, weight of evidence, financial ability, character

o Cruel and Unusual Punishment = can not be grossly disproportionate to the seriousness of the crime (not applicable: V impact statement)

 Death penalty: not allowed if 1 juror finds D to be mentally retarded or crime was committed when D was a minor or not a major part played in a felony murder
-lawyer MUST research Mitigating circumstance: jury must consider for death penalty: age, capacity, criminal history, duress, other involvement, other

 Minor: can NOT be sentenced to life without parole UNLESS a homicide occured

69
Q

What are affirmative criminal defenses?

What are criminal defensive evidence?

A

Affirmative defenses= you should aquit the defendant on the grounds of his affirmative defense only if he has established the elements of the affirmative defence by the preponderance of the evidence
* Self defense
* Insanity
* Entrapment

Defensive evidence = has the right to submit evidence but does NOT have to establish his innocence BUT the burden remains on the prosecution
Alibi
“If you have a reasonable doubt as to whether defendant was at the liquor store you must find him not guilty”

70
Q

To deny the gov from using information that is privileged against self-incrimination what must the witness show?

A
  1. compelled testimony
  2. incriminating
  3. testimonial as it relates to an assertion of fact

Corporations can NOT assert this privilege as it ONLY applies to persons

No protections for business records that are prepared voluntarily because they are not compelled

71
Q

Larceny

A
  1. Unlawful
  2. taking and carrying away
  3. of personal property
  4. of another
  5. with the intent to permanently deprive the person of their property at the time of the taking
  • If a person severs real property and then takes it away that is NOT larceny (planted tree or fixture) because it is NOT personal property in its ATTACHED state
  • But if the owner severs it and then YOU take it away then that IS larceny
72
Q

When must courts give a jury instruction on an affirmative defense?

A

If it is supported by some evidence.

73
Q

4th Amendment

A

Under the 4th Amendment of the U.S. Constitution, a person has the right to be free from unlawful searches and seizures by the government. Seizure under the 4th Amendment includes arrests.

Permissible Government action viewed through an objective standard =
- Pre-Textual Stop with reasonable suspicion
- Checkpoint for cars with neutral, articulable standards + has to do with the mobility of cars
-Stop a person with reasonable suspision and Frisk them with a patdown of outer clothing if they appear dangerous
- Public Arrest = For an arrest to be proper, the police officer MUST have probable cause. If an arrest is conducted in a public place, probable cause is all that is required. However, a warrant is required if a police officer arrests someone in or at their home.

74
Q

Valid Warrant

A
  1. Probable Cause
  2. the warrant must state with particularity the
    place to be searched and the items to be seized
  3. it must be issued by a neutral and detached magistrate
75
Q

Extortion / Black Mail
Malicious Mischief

A

Extortion / Black Mail = wrongful taking of another’s property + by future threats of harm or exposing information

Malicious Mischief = specific intent + destroy or damage + property of another + impairing the use or lowering the value

CA Bar Exam Rules to Review (13 decks)

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