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Bar Exam > Criminal Law and Procedure > Flashcards

Criminal Law and Procedure Flashcards

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1
Q

Standards - Probable Cause

A

Trustworthy facts or knowledge for a reasonable person to believe that the suspect has committed or is committing a crime where arrest is authorized

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2
Q

Standards - Reasonable Suspicion

A

More than vague suspicion, less than probable cause

If informants tip – Requires sufficient indicia of reliability

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3
Q

Constitutional Limitations - Fourth Amendment

A

Unreasonable searches and seizures, exclusionary rule

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4
Q

Constitutional Limitations - Fifth Amendment

A

Compulsory self-incrimination, double jeopardy

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5
Q

Constitutional Limitations - Sixth Amendment

A

Speedy & public trial, trial by jury, confront witnesses, compulsory process for obtaining witnesses, and assistance of counsel

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6
Q

Constitutional Limitations - Eighth Amendment

A

Cruel and unusual punishment, excessive fines

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7
Q

Constitutional Limitations - Fourteenth Amendment

A

Applies most rights to the states via Due Process Clause

Exceptions: grand jury, excessive bail

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8
Q

4th - Seizure - Defined

A

Exercise of control by a government agent over person or thing

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9
Q

4th - Seizure - Unreasonable Search & Seizure Requirements

A

(1) gov conduct, (2) reasonable expectation of privacy, (3) probable cause and particularity for a warrant

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10
Q

4th - Seizure - Arrest

A

Police take person into custody against will for crime
Requires probable cause
Warrant required for nonemergency in home

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11
Q

4th - Seizure - Arrest - Effect of Arrest on Prosecution

A

Unlawful arrest alone has no impact on subsequent prosecution

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12
Q

4th - Seizure - Terry Stop - Requirements

A

Brief detention for investigative purposes

Requires reasonable suspicion of criminal activity/involvement supported by articulable facts (may frisk if RS detainee is armed and dangerous)

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13
Q

4th - Seizure - Automobile Stops

A

Car may be stopped if police have reasonable suspicion a law was violated

Constitutes a seizure of driver and passengers (passengers have standing)4th - Seizure - Automobile Stops

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14
Q

4th - Seizure - Automobile Stops - Police Dogs

A

Dog sniff is not a search in routine traffic stops if it doesn’t extend stop time

A dog alert can form basis of probable cause

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15
Q

4th - Seizure - Automobile Stops - Officer’s Mistake of Law Effect on Prosecution

A

Officer’s mistake of law does not invalidate seizure if mistake was reasonable

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16
Q

4th - Seizure - Automobile Stops - Roadblocks

A

Allowed if for purposes other than seeking incriminating info

Special law enforcement needs –allowed if cars are stopped on neutral, articulable standard and stop is to serve purpose related to car problems

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17
Q

4th - Seizure - Detain for Drugs in Home

A

PC of drugs in home > police can detain from going in while waiting for warrant

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18
Q

4th - Seizure - Detain During Warrant Search

A

Warrant to search for contraband > allows police to detain occupants during

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19
Q

4th - Evidentiary Search and Seizure

A

Gov conduct + D must have standing

To be valid, must be reasonable (often with warrant)

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20
Q

4th - Evidentiary Search and Seizure - Standing

A

D has standing if they had reasonable expectation of privacy in place/items

Automatic if: person owned/right to possess place, person’s home, or person overnight guest; sometimes if person owned property

GPS on car > search; sense-enhancing tech > search

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21
Q

Warrant Requirements - Evidentiary Search

A

Neutral/detached magistrate, probable cause, reasonably precise as to place of search and items to seize

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22
Q

Warrant Requirements - Proper Execution

A

Executed by police without unreasonable delay

Knock, announce purpose, wait for admit unless RS of danger/destruction
Violation of knock and announce will not result in suppression

Scope of search limited to that to discover items described in warrant
Police may seize contraband/fruits/instrumentalities they discover

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23
Q

Warrant Requirements - Evidentiary Search - Probable Cause

A

PC to believe seizeable evidence will be found on person/place

If informant > Totality of circumstances; reliability/basis

If affidavit > invalid if all three: false statement included by officer, officer did so intentionally/recklessly, and statement was material to finding of PC

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24
Q

4th - Evidentiary Search and Seizure - Search of Person

A

Police may detain occupants of premises during search, but cannot search persons on premises (or who recently left) who were not named in warrant

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25
Q

4th - Evidentiary Search and Seizure - Wiretapping

A

If it violates a reasonable expectation of privacy, it is a search

Warrant authorizing a wiretap allowed if probable cause, persons are named, conversations are described with particularity, wiretap is limited to a short time, terminated once info is obtained, and return is made to court.

Evidence obtained in a manner that shocks the conscience is inadmissible (DPC)

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26
Q

4th - Exceptions to Warrant Requirement - List

A

Search Incident to Arrest
Automobile Exception
Plain View
Consent
Stop & Frisk
Evanescent Evidence
Hot Pursuit
Emergency Aid/Community Caretaker
Administrative Inspections/Searches

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27
Q

4th - Exceptions to Warrant Requirement - Search Incident to Constitutional Arrest

A

Police may search person & areas they can reach + protective sweep of area

Must be: contemporaneous in time and place to arrest

Specific situations:
* DUI arrest > breath test allowed without warrant (blood req warrant)
* Physical phone attributes > allowed w/o warrant
* Incident to incarceration/impoundment > search at station or impound lot

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28
Q

4th - Exceptions to Warrant Requirement - Search Incident to Constitutional Arrest - Passenger Compartment of Car

A

Police can search passenger compartment of car incident to arrest if arrestee is unsecured and can gain access to vehicle OR police reasonably belief evidence of offense of arrest may be found

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29
Q

4th - Exceptions to Warrant Requirement - Automobile Exception

A

Police must have PC (before anything is searched) to believe vehicle contains fruits, instrumentalities, or evidence of crime > can search whole vehicle + containers that can hold

Police allowed to tow vehicle to station to search later
Police may not search vehicle parked in curtilage w/o warrant

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30
Q

4th - Exceptions to Warrant Requirement - Plain View

A

Police can make seizure w/o warrant if they are legitimately on premises, discover evidence/fruit/instrumentalities/contraband, see it in plain view, and have PC to believe item is evidence/fruit/instrumentalities/contraband

Requires it be immediately apparent

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31
Q

4th - Exceptions to Warrant Requirement - Consent

A

Warrantless search valid if police have voluntary consent (scope limited to consent; lying about warrant negates consent)

Authority to consent: anyone w/ apparent equal right to use/occupy

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32
Q

4th - Exceptions to Warrant Requirement - Stop & Frisk

A

Brief stop and pat down of outer clothing and body to check for weapons
Officer may stop person if articulable and RS of criminal activity

Scope is limited to outer clothing, officer may seize items that officer believes based on “plain feel” is weapon or contraband (no manipulation)

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33
Q

4th - Exceptions to Warrant Requirement - Evanescent Evidence

A

Evidence that might disappear quickly if the police took the time to get a warrant.

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34
Q

4th - Exceptions to Warrant Requirement - Hot Pursuit

A

Police in hot pursuit of fleeing felon can make search and seizure

Can pursue into a private dwelling (misdemeanor requires law emergency)

Generally 15 minutes between felon and police

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35
Q

4th - Exceptions to Warrant Requirement - Emergency Aid/Community Caretaker

A

If officer faces emergency that threatens health/safety of individual or public

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36
Q

4th - Exceptions to Warrant Requirement - Administrative Inspections and Searches

A

Inspectors require warrant, standard is general/neutral enforcement plan

Warrantless searches for things like contaminated food, regulated industries, prisoner searches, airline passengers, gov employees, etc.

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37
Q

4th - Exceptions to Warrant Requirement - Administrative Inspections and Searches - Schools

A

Requires reasonable grounds for search

Will be reasonable if it offers a moderate chance of finding evidence of wrongdoing, measures are reasonably related to objectives, and search is not excessively intrusive in light of age/sex of student

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38
Q

Confessions - Voluntariness

A

14th Amendment
To be admissible, they must be voluntary (w/o official compulsion)
If involuntary > harmless error test for overturning conviction

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39
Q

Confessions - Right to Counsel

A

Right to counsel in criminal proceedings once judicial proceedings start

The right is offense-specific; can be questioned re unrelated offenses

Waiver must be knowing and voluntary

Right to atty at post-charge lineup to attack ID

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40
Q

Confessions - Right to Counsel - Effect of Violation on Prosecution

A

Statement obtained in violation may be used to impeach D’s testimony

Remedy: Nontrial > harmless error rule; trial > automatic reversal

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41
Q

5th - Privilege Against Self-Incrimination - Miranda Warnings

A

When required: Detainee knows they are being interrogated by a gov agent + custody (reasonable person feels free to terminate/leave + environment presents coercive pressures as station house questioning)

Does not apply to grand jury

Interrogation: words/conduct that may elicit an incriminating response

Statements required: remain silent, anything they say can be used against them, right to atty, atty may be appointed.

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42
Q

5th - Privilege Against Self-Incrimination - Miranda Warnings - Waiver/Assertion of Rights

A

Does nothing: will not presume waiver/assertion of right; continue questioning

Waives rights knowingly and voluntarily: all potential subjects of interrogation

Invokes right to remain silent – explicit, unambiguous, and unequivocal
Police must honor request by not badgering
Police may question re a different crime later w/ new Miranda

Invokes right to counsel – unambiguously
All questioning ceases until counsel UNLESS detainee then waives or is released and questioned 14 days later

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43
Q

5th - Privilege Against Self-Incrimination - Miranda Warnings - Effect of Violation

A

Inadmissible under exclusionary rule

Statements may be used to impeach D’s trial testimony

If police get confession > Miranda > confession, inadmissible if intentional

Fruits of unwarned confession will be inadmissible if failure was purposeful

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44
Q

Exclusionary Rule - Generally

A

Prohibits introduction of evidence obtained in violation of 4th, 5th, or 6th amendment

If a warrant was invalid, any evidence obtained thereunder will be excluded

Prohibits fruit of the poisonous tree unless costs outweigh deterrent effect

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45
Q

Exclusionary Rule - Fruits of Poisonous Tree - Exceptions

A

Fruits derived from statements in violation of Miranda (not purposeful)

Evidence obtained from a source independent of the original illegality

When connection between police conduct and evidence is remote

Causal link is broken (independent source, act of free will)

Inevitable discovery (police would have discovered it anyway)

Violations of the knock and announce rule

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46
Q

Exclusionary Rule - Fruits of Poisonous Tree - Limited Applicability

A

Not applicable to grant jury, civil proceedings, state law violations, internal agency rules, and parole revocation

Doesn’t apply if police acting in good-faith pursuant to valid warrant or law

Evidence from illegal search can be used to impeach D’s statements

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47
Q

Exclusionary Rule - Harmless Error

A

Conviction upheld if would have resulted w/o improper evidence
Resulting conviction will not be overturned (beyond a reasonable doubt)
Never applies to the denial of the right to counsel at trial

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48
Q

Pretrial Procedures - Grand Jury Indictments

A

D has no right to notice/presence, counsel, exclusion of evidence, challenging subpoena

Can only be quashed if issued by group that excluded minority group

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49
Q

Pretrial Procedures - Speedy Trial

A

6th Amendment
Attaches once D has been arrested or charged
Considers: length of delay, reason, whether D asserted, prejudice to D
Remedy: dismissal with prejudice

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50
Q

Pretrial Procedures - Duty to Disclose

A

Gov must disclose material, exculpatory evidence to the D

Failure to do so violates DP & grounds for reversal of conviction if: D proves evidence is favorable to D (impeaches or exculpatory) and prejudice resulted (reasonable probability result would be different)

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51
Q

Pretrial Procedures - Competency to Stand Trial - Insanity Defense

A

Must notify prosecution before use

Defense to criminal charge bc mental condition at time of crime

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52
Q

Pretrial Procedures - Competency to Stand Trial - Incompetency Defense

A

Not a defense, but a bar to trial

Based on D’s mental condition at time of trial; can be tried and convicted if they regain competency

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53
Q

Pretrial Procedures - Competency to Stand Trial - Due Process

A

D cannot stand trial if they lack a rational/factual understanding of charges and proceedings OR lack ability to conduct with their lawyers with a reasonable degree of understanding

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54
Q

Trial - Public Trial

A

Preliminary probable cause hearings – presumptively open to public

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55
Q

Trial - Due Process Violations

A

Violated if judge has actual malice or financial interest in result
Judge must be law trained if it is a serious crime
Trial must be conducted so jury can give evidence reasonable consideration
State may not compel D to stand trial in prison clothing or visibly shackled
Jury may not be exposed to influence favorable to prosecution

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56
Q

Trial - Right to Counsel - 5th

A

Right before charges have been filed

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57
Q

Trial - Right to Counsel - 6th

A

Offense specific; after formal charges (atty for each offense)

Applies in misdemeanor cases only if imprisonment imposed

Ineffective if result-changing deficient performance by counsel. D must point out specifics (cannot be inexperience, time, gravity of charges, complexity, or witness accessibility)

For pleas > D must show plea process would be different

Violation requires reversal

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58
Q

Trial - Right to Trial by Jury

A

Right only attaches for serious offenses (imprisonment for 6+ mo allowed)

6+ jurors, unanimous result

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59
Q

Trial - Right to Trial by Jury - Sentence Enhancements

A

Sentence enhancements allowed if proof of facts are submitted to jury

Judge decides consecutive or concurrent sentences

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60
Q

Trial - Right to Trial by Jury - D Failure to Testify

A

P MAY NOT comment on D’s failure to testify unless D claims they couldn’t speak

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61
Q

Trial - Right to Confront Witnesses

A

P MAY NOT comment on D’s failure to testify unless D claims they couldn’t speak

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62
Q

Trial - Right to Confront Witnesses - Co-D Confession

A

If tried together and one gives confession implicating other, right of confrontation prohibits use of statement

Allowed if portions referring to other D can be eliminated, confessing D takes stand and gets cross-examined re statement, or confession is being used to rebut D’s claim that confession was coerced

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63
Q

Pleas - Judicial Requirements from Judge

A

Judge must find plea is voluntary & intelligent by asking D in open court on record

D must understand nature of charge, elements of crime, maximum penalty and mandatory minimum, right to not plead guilty, and waiver of trial

A guilty plea can be set aside for involuntariness, lack of jurisdiction, ineffective assistance of counsel, or failure to keep the plea bargain

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64
Q

Pleas - Enforced Against

A

Prosecutor and defendant (not judge)

May be used as a conviction in other proceedings

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65
Q

Sentencing and Punishment - Right to Counsel

A

Defendant has a right to counsel; can consider hearsay/uncross-examined reports

D in death penalty case given more opportunity for confrontation

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66
Q

Sentencing and Punishment - Death Penalty

A

Murder – Imposed under statutory scheme giving jury discretion, full info concerning Ds, and guidance in making decision

Rape – Prohibited if was not intended to result or did not result in death

Sanity – Cannot execute prisoner who is insane at time of execution

Intellectual disability – Cruel & unusual to impose on person

Minors – Under 18 yrs old at time of offense violates 8th amendment

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67
Q

Appeal - As of Right

A

There is no federal right to appeal

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68
Q

Prisoner’s Rights

A

Right to Counsel at parole and probation revocation (if involves new sentence)

Prison regulations violate due process if impose atypical and significant hardships

No reasonable expectation of privacy in cells (so no 4th amendment right)

Must have reasonable access to courts & adequate medical care

1st amendment may be burdened by regs reasonably related to penological interests

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69
Q

Double Jeopardy - Generally

A

Person may not be retried for same offense once jeopardy attaches (5th amendment)

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70
Q

Double Jeopardy - When it Attaches

A

In a jury trial > Empaneling and swearing of jury

In bench trial > When first witness is sworn

Commencement of a juvenile proceeding (but not other civil proceedings)

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71
Q

Double Jeopardy - “Same Offense”

A

Two crimes are the same unless each requires proof of an additional element that the other does not require

Attachment for greater offense bars retrial for lesser offenses (& vice-versa) (exception for new evidence)

72
Q

Double Jeopardy - Exceptions

A

Hung jury, necessity to abort trial, termination on behalf of D, D appealed conviction (unless insufficient evidence), breach of plea, D elects separate trials

73
Q

Privilege Against Self-Incrimination - Assertion

A

The privilege against self-incrimination may be asserted by any natural person if the answer to the question may tend to incriminate them

74
Q

Privilege Against Self-Incrimination - At Trial

A

Criminal D has right not to take witness stand & not be asked to do so

Violation occurs when a person’s statements used against them in criminal case

Prosecutor may not comment on D’s silence after arrest or at trial (unless D claims they were silenced)

75
Q

Privilege Against Self-Incrimination - What this Protects

A

Protects only testimonial or communicative evidence (not real or physical)
To qualify, must relate to factual assertion or disclose information
Producing incriminating documents does not qualify for protection

76
Q

Privilege Against Self-Incrimination - Elimination of Privilege - Grant of Immunity

A

Use and derivative use immunity – Testimony and evidence located through testimony not used against witness
Can be prosecuted if evidence from independent source

Immunized testimony involuntary – coerced and involuntary
May not be sued to impeach D’s testimony
Can be used in trial for perjury

77
Q

Privilege Against Self-Incrimination - Elimination of Privilege - No Possibility of Incrimination

A

No possibility of incrimination (like statute of limitations has run)

78
Q

Privilege Against Self-Incrimination - Waiver

A

D waives by taking witness stand (if they disclose incriminating info)

79
Q

Juvenile Court - Rights of Child

A

Rights must be given to child during trial of delinquency proceeding:
(1) written notice of charges,
(2) assistance of counsel,
(3) opportunity to confront and cross-examine witnesses,
(4) the right not to testify, and
(5) the right to have “guilt” established by proof beyond reasonable doubt.

No right to trial by jury; pretrial detention allowed if juvenile “serious risk” to society

80
Q

Forfeiture Actions

A

Actions brought directly against property and are quasi-criminal

81
Q

Criminal Law - Jurisdiction

A

If an element of the offense was committed in the state, act caused a result in the state, crime involved neglect of a duty imposed by law of the state, there was an attempt or conspiracy outside plus an act inside the state, or there was an attempt or conspiracy inside the state to commit act outside.

82
Q

Merger of Crimes

A

Fully overlapping elements > merge; if element not included > doesn’t merge

Common law: If conduct is both felony and misdemeanor, convicted of only felony and misdemeanor is merged

MPC: No merger other than solicitation + crime or attempt + crime (D cant be convicted of 1+ inchoate crimes)

83
Q

Definition of Felony

A

Punishable by death or imprisonment of 1+ year, others > misdemeanors

84
Q

Elements of all crimes

A

Physical act (actus reus) + mental state (mens rea)

85
Q

Elements of all crimes - Physical

A

Voluntary physical bodily movement or failure to act w/ legal duty

86
Q

Mental State - Specific Intent

A

Specific intent cannot be imputed from doing the act, but the manner may give circumstantial evidence of intent

Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts

87
Q

Mental State - Specific Intent - Crimes Applicable To

A

Solicitation – Intent to have person commit crime
Conspiracy – Intent to have crime completed
Attempt – Intent to complete crime
First degree premediated murder – Intent to kill
Assault – Intent to commit a battery
Larceny – To permanently deprive other of property
Embezzlement & False pretenses – Intent to defraud
Robbery – To permanently deprive other of property
Burglary – Intent to commit felony in dwelling
Forgery – Intent to defraud

88
Q

Mental State - Malice

A

Defined: Reckless disregard of obvious/high risk harmful result will occur
Malice crimes are common law murder and arson

89
Q

Mental State - Strict Liability

A

D can be found guilty from mere fact that they committed act
Includes statutory rape & selling liquor to minors
Defenses negating state of mind are not available

90
Q

Mental State - General Intent

A

D has awareness of all factors constituting the crime
All crimes not mentioned are general intent
Jury may infer the required general intent from doing the act

91
Q

Mental State - Purposely (MPC)

A

Conscious object is to engage in conduct or cause result

92
Q

Mental State - Knowingly (MPC)

A

Person is aware that their conduct is of a nature or certain circumstances exist

Deemed to be aware of circumstances if aware of a high probability they exist and avoid learning truth

93
Q

Mental State - Recklessly (MPC)

A

Consciously disregard a substantial and unjustifiable risk that circumstances exist or result will follow (+ disregard is gross deviation from standard of care of reasonable person)

Requires objective (unjustifiable risk) + subjective (awareness)

94
Q

Mental State - Negligence (MPC)

A

Fail to be aware of a substantial and unjustifiable risk
Objective standard

95
Q

Vicarious Liability

A

Person may be held liable for criminal conduct of another

Corporations may be held liable under MPC for acts performed by agent acting within scope of employment or corporate agent reflecting corporate policy

96
Q

Mental State - Transferred Intent

A

D can be liable when they intend the harm, but to a different victim

Applies to homicide, battery, and arson. NOT attempt.

97
Q

Causation - Cause-in-Fact

A

Result would not have occurred but for D’s conduct

D responsible for events that occur as a natural/probable consequence of conduct, even if D did not anticipate the manner they would occur.

98
Q

Causation - Proximate Cause

A

Result is natural/probable consequence of conduct

Superseding factors break this chain, not foreseeable intervening acts

Victim’s preexisting weakness does not break chain

Act that hastens inevitable result is still legal cause

99
Q

Accomplice Liability - Common Law - Principals

A

Principals in the first degree: Person who engages in act

Principals in the second degree: Aid, advise, or encourage AND are present

100
Q

Accomplice Liability - Common Law - Accessories

A

Accessories before: Assisted or encouraged BUT NOT present

Accessories after: Knowledge of felony, assisted escape arrest/punishment

101
Q

Accomplice Liability - MPC - Parties

A

All parties to a crime can be found guilty of principal offense

Principal – With the mental estate, engages in act or omission

Accomplice – Aids, advises, or encourages principal

102
Q

Accomplice Liability - Common Law - Accessories

A

Accessory after the fact – Treated separately under separate law

103
Q

Accomplice Liability - Required Mental State

A

Must have intent to assist principal + intent that principal commit offense

104
Q

Accomplice Liability - Scope of Liability

A

Mere knowledge that a crime will result is not enough for accomplice liability

Accomplice responsible for crimes they did/counseled AND any committed in course of crime contemplated as long as others were probable or foreseeable

105
Q

Accomplice Liability - Scope of Liability - Withdraw

A

Person withdraws before crime is unstoppable and committed

An action is required to not be liable

If person encouraged – Must repudiate encouragement

If person gave assistance – Must attempt to neutralize assistance

Notifying police or other action to prevent crime is sufficient

106
Q

Inchoate Offenses - Conspiracy - Elements

A

Requires agreement between two+ persons, intent to enter into agreement intent to achieve an unlawful objective

107
Q

Inchoate Offenses - Conspiracy - Merger

A

Doesn’t merge with other crimes

108
Q

Inchoate Offenses - Conspiracy - # of Guilty Minds

A

Common law requires at least two guilty minds

MPC requires only 1 party within criminal intent

If 2+ people are required for the offense, conspiracy requires 3+

109
Q

Inchoate Offenses - Conspiracy - Intent Required

A

Intent to agree + intent to achieve objective of conspiracy

110
Q

Inchoate Offenses - Conspiracy - Liability for Crimes

A

Conspirator liable for crimes of other conspirators if in furtherance of objectives of conspiracy and were foreseeable

111
Q

Inchoate Offenses - Conspiracy - Defenses

A

Factual impossibility is not a defense

Withdrawal not a defense, as conspiracy complete when agreement + act

112
Q

Inchoate Offenses - Solicitation - Elements

A

Consists of asking, inciting, counseling, urging, etc. another to commit a crime with intent that the person commit the crime (they do not have to agree)

113
Q

Inchoate Offenses - Solicitation - Merger

A

Solicitor cannot be punished with solicitation + other crime

114
Q

Inchoate Offenses - Solicitation - Defenses

A

Not a defense that solicited individual not convicted

Factual impossibility is not a defense

Withdraw/renunciation is not a defense

115
Q

Inchoate Offenses - Attempt - Elements

A

Attempt is act, done with intent to commit crime, that falls short of completion

Common law proximity test: Act is close to crime completion
MPC: Act must be substantial step in course of conduct for crime

116
Q

Inchoate Offenses - Attempt - Intent

A

Specific intent + overt act in furtherance of crime (beyond mere prep)

117
Q

Inchoate Offenses - Attempt - Defenses

A

Abandonment defense under MPC if fully voluntary and complete

Legal impossibility – If all intended acts would not be a crime

118
Q

Homicide - Common Law - Murder

A

Unlawful killing with malice aforethought (no defenses and intent)

Intent could be: to kill, inflict great bodily injury, commit felony, or reckless indifference to unjustifiably high risk to human life.

119
Q

Homicide - Statute - First Degree

A

Deliberate and premeditated: D made decision to kill in cool & dispassionate manner; reflected on idea of killing

Requires intent/knowledge conduct > death

120
Q

Homicide - Statute - Second Degree

A

Depraved heart killing (reckless indifference to unjustifiable high life risk)

Any murder which does not fit into the first-degree category

121
Q

Homicide - Felony Murder

A

Any death caused in commission of attempt to commit a felony is murder

Malice is implied from intent to commit felony

122
Q

Homicide - Felony Murder - Co-Conspirators

A

Agency theory: Killing must be committed by felon or agent/accomplice

Proximate cause theory: Felons liable for deaths of victims caused by someone other than co-felon (minority of states)

123
Q

Homicide - Felony Murder - Limitations on Liability

A

D must have committed/attempt to commit felony

Felony must be distinct from killing itself

Death must be foreseeable result of the felony

Death must have been caused before D’s immediate flight from the felony

D is not liable for felony murder when co-felon killed

124
Q

Homicide - Voluntary Manslaughter

A

Defined as a killing that would be murder but for adequate provocation

125
Q

Homicide - Voluntary Manslaughter - Adequate Provocation

A

Adequate provocation elements: (1) provocation that would arouse sudden/intense passion in mind of ordinary person, causing them to lose control, (2) D was provoked, (3) there was not sufficient time to cool off; and (4) D did not cool off between provocation and killing

126
Q

Homicide - Voluntary Manslaughter - Imperfect Self-Defense

A

Sometimes will lower murder to manslaughter if D doesn’t qualify for self-defense (D started it or unreasonably & honestly used deadly force)

127
Q

Homicide - Involuntary Manslaughter -

A

Killing with criminal negligence (MPC: recklessness) OR during commission of unlawful act (misdemeanor or felony not within felony murder rule)

Substantial risk or foreseeability of death may be required

128
Q

Offenses Against the Person - Battery

A

Unlawful force to another person resulting in injury or offensive touching

129
Q

Offenses Against the Person - Battery - Intent

A

Can be, but need not be, intentional + force need not be applied directly

130
Q

Offenses Against the Person - Battery - Aggravated Battery Treated as Felony

A

W/ deadly weapon, resulting in serious bodily harm, and of a child, woman, or police officer.

131
Q

Offenses Against the Person - Assault

A

Attempt to commit battery (specific intent)

132
Q

Offenses Against the Person - Assault - Intent

A

Intentional creation of reasonable apprehension in victim of imminent bodily harm

Requires something other than just words; if touching > battery

133
Q

Offenses Against the Person - Assault - Aggrivated

A

Assault + use of deadly weapon OR intent to rape /maim/murder

134
Q

Offenses Against the Person - False Imprisonment

A

Unlawful confinement of a person without valid consent

MPC: Requires confinement interfere substantially with victim’s liberty

135
Q

Offenses Against the Person - False Imprisonment - Consent Invalid If

A

Consent invalidated by coercion, threats, deception, youth, incapacity

136
Q

Offenses Against the Person - Kidnapping

A

Unlawful confinement of a person involving movement or concealment of victim

137
Q

Offenses Against the Person - Kidnapping - Aggravated

A

Ransom, for other crimes, for offensive purposes, and child stealing

138
Q

Offenses Against the Person - Rape/Sexual Assault

A

Unlawful carnal knowledge without consent (slight penetration suf)

139
Q

Offenses Against the Person - Rape/Sexual Assault - Effect of Consent

A

Without effective consent – actual force, threat, incapable, etc.

Belief the person is a different person still constitutes effective consent

140
Q

Offenses Against the Person - Statutory Rape

A

Carnal knowledge of person under age of consent

Strict liability crime, not necessary to show lack of consent

Mistakes as to age do not matter, as it is strict liability

141
Q

Property Offenses - Larceny

A

A taking and carrying away of personal property of another with possession without consent with intent to permanently deprive that person of their interest

Permanent deprivation required, borrowing or having some right to it > not larceny

If take without intent to perm. deprive but develops intent > now larceny

If taking was not wrongful + develop intent to keep > continuing trespass

142
Q

Property Offenses - Embezzlement

A

Fraudulent conversion of personal property of another by a person in lawful possession of that property

Must intend to defraud; intent to restore same property doesn’t count

Conversion means to deal with property in manner inconsistent with arrangement

Claim of right – not embezzlement; whether D took it openly is important factor

143
Q

Property Offenses - False Pretenses

A

Obtaining title to the personal property of another by an intentional false statement with intent to defraud the other

The victim must actually be deceived by (or rely on) the misrepresentation

D must have either known statement to be false or that victim rely on misrep

144
Q

Property Offenses - Larceny by Trick

A

Victim is tricked by misrepresentation of fact into giving up custody or possession

145
Q

Property Offenses - Robbery

A

A taking of personal property of another from the other’s person or presence by force or threats of death/injury to victim/family/person with intent to permanently deprive them of it

146
Q

Property Offenses - Extortion

A

Common law: corrupt collection of unlawful fee by officer under color of office

MPC: Obtaining property by means of threats to do harm or expose info

147
Q

Property Offenses - Receipt of Stolen Property

A

Receiving possession and control of stolen personal property known to have been obtained in a manner constituting a criminal offense by another person with the intent to permanently deprive owner of interest in it

148
Q

Property Offenses - Theft

A

MPC: Some or all of other property offenses are combined and called “theft”

149
Q

Property Offenses - Forgery

A

Making or altering a writing with apparent legal significance so that it is false with intent to defraud

Must represent it is something it is not (not just have a misrepresentation)

No one actually need to have been defrauded

150
Q

Property Offenses - Burglary

A

Common law: a breaking and entry of a dwelling of another at nighttime with intent to commit a felony inside
(dwelling is used for sleeping purposes, cannot be barn/commercial)

MPC: Essentially eliminates the technicalities (like breaking, dwelling, nighttime)

151
Q

Property Offenses - Arson

A

Common law: Malicious burning of the dwelling of another (intentional or reckless disregard)
Blackening by smoke/discoloration is not burning, but charring is

MPC: Expanded to include damage by explosion and property cars, etc.

152
Q

Defenses - List

A

Insanity
Intoxication
Infancy
Self-Defense
Duress
Necessity
Mistake/Ignorance of Fact
Entrapment

153
Q

Defenses - Insanity - M’Naghten

A

Disease of mind caused defect of reason so that D lacked ability to know wrongfulness or understand nature/quality of actions

154
Q

Defenses - Insanity - Irresistible Impulse

A

D unable to control actions or conform conduct to law

155
Q

Defenses - Insanity - Durham Test

A

Crime was product of mental disease or defect

156
Q

Defenses - Insanity - MPC

A

D had mental disease/defect and so lacked capacity to appreciate criminality of conduct or conform conduct to requirements of law.

157
Q

Defenses - Insanity - Process for Invoking Defense

A

All Ds are presumed sane, so D must raise it & prove preponderance of evidence

Some states & MPC require P prove D was sane beyond reasonable doubt

Federal courts require D prove by clear and convincing evidence

D may raise at arraignment, but need not do so and does not waive it

158
Q

Defenses - Intoxication

A

Voluntary intoxication (knowing & w/o duress) is a defense to specific intent crimes

Recklessness crimes – person who would have been aware but for intoxication acts recklessly

Involuntary intoxication is treated as mental illness (entitled if meet insanity test)

159
Q

Defenses - Infancy

A

Common law: No liability under 7, rebuttable presumption unable to understand 7-14, over 14 treated as adults

MPC: Cannot be convicted until a stated age (typically 13-14), but juvenile court ok

160
Q

Defenses - Self-Defense - Nondeadly Force

A

Person without fault when reasonably beliefs it is necessary to avoid imminent injury or retain property
No duty to retreat

161
Q

Defenses - Self-Defense - Deadly Force

A

Deadly force – Person without fault is confronted with unlawful force and reasonably believes they are threatened with death or serious bodily injury
Most states have no duty to retreat; minority requires if victim can do so safely unless in own home, during lawful arrest, or during robbery

162
Q

Defenses - Self-Defense - Aggressor’s Claim

A

Aggressor may use force if they effectively withdraw and communicate to the other their desire to do so or victim of initial aggression escalates minor fight into deadly altercation and aggressor has no chance to withdraw

163
Q

Defenses - Self-Defense - Defense of Others

A

Allowed if D reasonably believe that the person assisted has legal right to use force in their own defense

164
Q

Defenses - Self-Defense - Defense of a Dwelling

A

Non-deadly allowed to extent reasonably believe necessary to prevent/terminate another’s unlawful entry into or attack upon dwelling

Deadly allowed only to prevent violent entry and when reasonably believe necessary to prevent personal attack on someone in dwelling or prevent entry to commit felony in dwelling

165
Q

Defenses - Self-Defense - Defense of Other Property

A

Deadly force is NEVER allowed; non-deadly force allowed to defend from an imminent, unlawful interference (unless an ask would suffice)

May use force only in immediate pursuit of taker

166
Q

Defenses - Self-Defense - Crime Prevention

A

Nondeadly allowed extent necessary to prevent felony/breach of peace

Deadly allowed only if necessary to terminate/prevent felony risking life

167
Q

Defenses - Self-Defense - Police Use

A

Nondeadly allowed if reasonably necessary to effectuate arrest

Deadly allowed if reasonable to prevent felon’s escape and police reasonably believe felon threatens death or serious bodily harm

168
Q

Defenses - Self-Defense - Resisting Improper Arrest

A

Nondeadly – May be used even if against known police officer
Deadly – May be used if person does not know arresting is police officer

169
Q

Defenses - Duress

A

D reasonably believed another person would inflict death/harm upon them/family/third-person if D did not commit crime

Not a defense to intentional homicide

Threats to property insufficient under common law; MPC allows if value of property outweighs harm done to society through commission of crime

170
Q

Defenses - Necessity

A

Person reasonably believed commission of crime was necessary to avoid imminent and greater injury to society than that involved in crime

Test is objective, good faith belief is insufficient

Cannot claim if D created situation and death is never justified

171
Q

Defenses - Mistake or Ignorance of Fact

A

Relevant only if it shows D lacked state of mind required for crime
Specific intent – mistake can be unreasonable
Other intent – mistake must be reasonable

Mistake is defense to committed crime; impossibility is defense to incomplete

172
Q

Defenses - Entrapment

A

Only if intent to commit crime was not with D, but with law enforcement

Providing opportunity for predisposed person to commit crime is not entrapment

D is usually predisposed to commit crime and entrapment usually wrong choice

173
Q

Offenses Involving Judicial Procedure - Perjury

A

Intentional taking of a false oath (lying) about a material matter (one that may affect the outcome) in a judicial proceeding

Subordination of perjury – procuring or inducing another to commit perjury

174
Q

Offenses Involving Judicial Procedure - Compounding a Crime

A

Common law: agreeing, for consideration, not to prosecute or conceal commission of felony or whereabouts of a felon

MPC: Any crime, not just felons

175
Q

Offenses Involving Judicial Procedure - Bribery

A

Common law: Corrupt payment/receipt of thing of value for official action

MPC: Offering or taking of a bribe, extends to non-public officials

Bar Exam (8 decks)

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