Criminal Law and Procedure Flashcards

Question

4th - Evidentiary Search and Seizure - Wiretapping

Answer 1

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)

Answer 2

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

Answer 3

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

Answer 4

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

Answer 5

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

Answer 6

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

Answer 7

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

Answer 8

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)

Answer 9

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

Answer 10

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

Answer 11

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

Answer 12

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.

Answer 13

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

Answer 14

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

Answer 15

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

Answer 16

Statement obtained in violation may be used to impeach D’s testimony Remedy: Nontrial > harmless error rule; trial > automatic reversal

Answer 17

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.

Answer 18

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

Answer 19

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

Answer 20

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

Answer 21

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

Answer 22

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

Answer 23

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

Answer 24

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

Answer 25

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

Answer 26

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)

Answer 27

Must notify prosecution before use Defense to criminal charge bc mental condition at time of crime

Answer 28

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

Answer 29

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

Answer 30

Preliminary probable cause hearings – presumptively open to public

Answer 31

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

Answer 32

Right before charges have been filed

Answer 33

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

Answer 34

Right only attaches for serious offenses (imprisonment for 6+ mo allowed) 6+ jurors, unanimous result

Answer 35

Sentence enhancements allowed if proof of facts are submitted to jury Judge decides consecutive or concurrent sentences

Answer 36

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

Answer 37

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

Answer 38

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

Answer 39

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

Answer 40

Prosecutor and defendant (not judge) May be used as a conviction in other proceedings

Answer 41

Defendant has a right to counsel; can consider hearsay/uncross-examined reports D in death penalty case given more opportunity for confrontation

Answer 42

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

Answer 43

There is no federal right to appeal

Answer 44

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

Answer 45

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

Answer 46

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)

Answer 47

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)

Answer 48

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

Answer 49

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

Answer 50

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)

Answer 51

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

Answer 52

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

Answer 53

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

Answer 54

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

Answer 55

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

Answer 56

Actions brought directly against property and are quasi-criminal

Answer 57

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.

Answer 58

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)

Answer 59

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

Answer 60

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

Answer 61

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

Answer 62

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

Answer 63

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

Answer 64

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

Answer 65

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

Answer 66

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

Answer 67

Conscious object is to engage in conduct or cause result

Answer 68

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

Answer 69

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)

Answer 70

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

Answer 71

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

Answer 72

D can be liable when they intend the harm, but to a different victim Applies to homicide, battery, and arson. NOT attempt.

Answer 73

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.

Answer 74

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

Answer 75

Principals in the first degree: Person who engages in act Principals in the second degree: Aid, advise, or encourage AND are present

Answer 76

Accessories before: Assisted or encouraged BUT NOT present Accessories after: Knowledge of felony, assisted escape arrest/punishment

Answer 77

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

Answer 78

Accessory after the fact – Treated separately under separate law

Answer 79

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

Answer 80

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

Answer 81

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

Answer 82

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

Answer 83

Doesn’t merge with other crimes

Answer 84

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+

Answer 85

Intent to agree + intent to achieve objective of conspiracy

Answer 86

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

Answer 87

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

Answer 88

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)

Answer 89

Solicitor cannot be punished with solicitation + other crime

Answer 90

Not a defense that solicited individual not convicted Factual impossibility is not a defense Withdraw/renunciation is not a defense

Answer 91

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

Answer 92

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

Answer 93

Abandonment defense under MPC if fully voluntary and complete Legal impossibility – If all intended acts would not be a crime

Answer 94

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.

Answer 95

Deliberate and premeditated: D made decision to kill in cool & dispassionate manner; reflected on idea of killing Requires intent/knowledge conduct > death

Answer 96

Depraved heart killing (reckless indifference to unjustifiable high life risk) Any murder which does not fit into the first-degree category

Answer 97

Any death caused in commission of attempt to commit a felony is murder Malice is implied from intent to commit felony

Answer 98

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)

Answer 99

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

Answer 100

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

Answer 101

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

Answer 102

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

Answer 103

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

Answer 104

Unlawful force to another person resulting in injury or offensive touching

Answer 105

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

Answer 106

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

Answer 107

Attempt to commit battery (specific intent)

Answer 108

Intentional creation of reasonable apprehension in victim of imminent bodily harm Requires something other than just words; if touching > battery

Answer 109

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

Answer 110

Unlawful confinement of a person without valid consent MPC: Requires confinement interfere substantially with victim’s liberty

Answer 111

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

Answer 112

Unlawful confinement of a person involving movement or concealment of victim

Answer 113

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

Answer 114

Unlawful carnal knowledge without consent (slight penetration suf)

Answer 115

Without effective consent – actual force, threat, incapable, etc. Belief the person is a different person still constitutes effective consent

Answer 116

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

Answer 117

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

Answer 118

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

Answer 119

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

Answer 120

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

Answer 121

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

Answer 122

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

Answer 123

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

Answer 124

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

Answer 125

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

Answer 126

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)

Answer 127

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.

Answer 128

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

Answer 129

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

Answer 130

D unable to control actions or conform conduct to law

Answer 131

Crime was product of mental disease or defect

Answer 132

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

Answer 133

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

Answer 134

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)

Answer 135

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

Answer 136

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

Answer 137

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

Answer 138

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

Answer 139

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

Answer 140

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

Answer 141

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

Answer 142

Nondeadly allowed extent necessary to prevent felony/breach of peace Deadly allowed only if necessary to terminate/prevent felony risking life

Answer 143

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

Answer 144

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

Answer 145

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

Answer 146

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

Answer 147

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

Answer 148

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

Answer 149

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

Answer 150

Common law: agreeing, for consideration, not to prosecute or conceal commission of felony or whereabouts of a felon MPC: Any crime, not just felons

Answer 151

Common law: Corrupt payment/receipt of thing of value for official action MPC: Offering or taking of a bribe, extends to non-public officials