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Criminal Law and Procedure Flashcards

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1
Q

Specific Intent Crimes

A
  • Solicitation: Intent to have the person solicited commit the crime
  • Conspiracy: Intent to have the crime completed
  • Attempt: Intent to complete the crime
    o attempt is a specific intent crime—even when the crime attempted is not.
  • First degree premeditated murder: Premeditated intent to kill
  • Assault: Intent to commit a battery
  • Larceny: Intent to permanently deprive the other of their interest in the property taken
  • Embezzlement: Intent to defraud
  • False pretenses: Intent to defraud
  • Robbery: Intent to permanently deprive the other of their interest in the property taken
  • Burglary: Intent to commit a felony in the dwelling
  • Forgery: Intent to defraud
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2
Q

General Intent Crimes

A
  • Battery
  • Rape
  • Kidnaping
  • False Imprisonment
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3
Q

MPC States of Mind

A
  • Purposely – conscious object to engage in certain conduct.
  • Knowingly – Awareness that conduct is of particular nature or certain circumstances or likely outcomes exist or are likely to exist.
  • Recklessly – Consciously disregard substantial and unjustifiable risk. Involves both objective (“unjustifiable risk”) and subjective (“awareness”) elements.
  • Negligence – When a person fails to be aware of a substantial and objectively very unjustifiable risk.
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4
Q

Elements of Conspiracy

A
  • 1) Agreement between 2 or more person
  • 2) with an intent to enter into agreement
  • 3) intent to achieve criminal objective of agreement.
  • 4) modern rule requires an act in furtherance of the conspiracy (but common law does not).
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5
Q

Elements of Attempt

A
  • 1) Specific intent to commit the crime attempted (even if the crime attempted isn’t a specific intent crime).
  • 2) An Act Beyond Mere Preparation;
    o Traditional Proximity Test: Dangerously Close to completion of the crime.
    o Majority Test: Substantial Step towards the commission of the crime
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6
Q

Elements of solicitation

A
  • (1) asking, inciting, counseling, advising, urging, or commanding another
  • (2) to commit a crime,
  • (3)with the intent that the person solicited commit the crime.
  • It is not necessary that the person solicited agree to commit the crime.
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7
Q

Common Law Murder

A

Unlawful killing of a human being with Malice aforethough (any one of the following):
1. Intent to Kill (can be inferred from use of deadly weapon)
2. Intent to inflict great bodily injury.
3. Reckless indifference to an unjustifiably high risk to human life.
4. Intent to commit a Felony

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8
Q

statutory first degree murder

A
  • intentional premeditated killing, or
  • killing that was a foreseeable result of a dangerous felony
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9
Q

statutory murder

A

Depraved Heart Killing – Killings that occur with reckless indifference to human life or the decision is not premeditated.

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10
Q

Voluntary Manslaughter

A

Unlawful killing of a human being if adequate provocation (heat of passion):
1) If Provocation would arouse sudden and intense passion in the mind of an ordinary person, and
2) Defendant was in fact provoked, and
3) Insufficient time between provocation and killing for passions of reasonable person to cool off, and
4) Defendant did not cool off.

OR

Imperfect self defense - the defendant unreasonably believed the necessity of the use of deadly force.

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11
Q

Involuntary Manslaughter

A
  • Killing committed with criminal negligence (failure to act with the care of a reasonable person under the same circumstances, casuing an unreasonable risk of death or serious injury)
  • Death incident to misdemeanor or nonviolent (or uneumerated) felony.
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12
Q

Causation in Homicide

A
  • The defendant’s conduct must be both the cause-in-fact and the proximate cause of the victim’s death:
  • Causation In Fact – When a defendant’s conduct is the cause in fact of the result, the result would not occur but for the defendant’s actions.
  • Proximate Causation rule – Defendant’s conduct is the “natural and probable consequence” of the conduct. Applies even if the defendant did not anticipate the precise manner of the result.
  • Intervening acts shield the defendant from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the defendant. They break the chain of the causation.
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13
Q

Elements of Criminal Battery

A
  • Unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.
  • GENERAL INTENT CRIME. Intoxication or Unreasonable Mistake NOT A DEFENSE.
  • The force need not be applied directly (dog)
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14
Q

Aggravated Battery

A
  • Battery with a deadly weapon
  • battery resulting in serious bodily harm
  • battery of a child woman, or police officer.
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15
Q

Criminal Assault

A
  • (i) Specific intention attempt to commit a battery or
  • (ii) Intentional creation of reasonable apprehension of imminent bodily harm. (other than mere words)

IF there is physical contact involved, the crime become battery.

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16
Q

Aggravated Assault

A
  • Assault plus (1) the use of a deadly or dangerous weapon, or (2) with the intent to rape, maim, or murder.
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17
Q

Criminal False Imprisonment

A
  • Unlawful confinement of a person without a person’s valid consent.
  • MPC requires actions that substantially interferes with a person’s liberty.
  • Preventing a person from going where they want to go is not confinement as long as there are alternative routes that is safe and not humiliating.
  • General Intent
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18
Q

Kidnapping

A
  • Unlawful confinement of a person that involves either (1) some movement of the victim, or (2) concealment of the victim in a “secret” place.
  • General Intent
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19
Q

Elements of Larceny

A

1) A taking (obtaining control)
2) And carrying away (asportation – slightest movement)
3) Of tangible personal property (excluding realty, services, and intangibles, but including written instruments embodying intangible rights such as stock certificates)
4) Of another with possession
5) By trespass (without consent or by consent induced by fraud)
6) With intent (at the time of taking) to permanently deprive that person of their interest in the property

larceny may occur with lost or mislaid property.
larceny Does Not Occur with Abandoned Property.

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20
Q

Elements of Embezzelment

A

1) Fraudulent conversion
2) of personal property
3) of another
4) by person in lawful possession of that property.

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21
Q

False Pretenses

A

1) Obtaining title
2) to personal property of another
3) by intentionally
4) making false statements of past or existing fact
5) with intent to defraud.

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22
Q

Larceny by Trick

A
  • Same as false pretense except victim gives up custody or possession of property instead of title.
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23
Q

Elements of Robbery

A

o 1) Taking
o 2) of personal property of another
o 3) from the other person’s or presence (or vicinity)
o 4) by imminent force or threat
o 5) with intent to permanently deprive.

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24
Q

Elements of burglary

A

o 1) Breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation)
o 2) and Entering (placing any portion of the body or any instrument used to commit the crime into the structure)
o 3) of a dwelling
o 4) of another
o 5) at nighttime
o 6) with the intent to commit a felony therein (not just larceny, but including larceny)

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25
Q

M’Naghten Rule

A

(i) disease of the mind (ii) caused a defect of reason and (iii) the defendant lacked ability to know the wrongfulness of actions or understand nature and quality of actions.

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26
Q

Irresistible Impulse Test

A

because of mental illness, defendant unable to control actions or conform conduct to the law.

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27
Q

Durham Test

A

crime was product of mental illness.

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28
Q

Model Penal Code Insanity Test (HYBRID M’Naughten & Impulse Test)

A

Defendant has mental disease or defect, and, as a result, lacked substantial capacity to either 1) appreciate criminality of conduct OR 2) conform conduct to the law.

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29
Q

Voluntary Intoxication Defense

A
  • Perfect defense to specific intent crimes.
  • Partial defense to 1st degree crime - merely reduces the crime to 2nd degree offenses, recklessness.
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30
Q

Involuntary Intoxication Defense

A
  • Results from taking substance without knowledge of its nature, under duress, or pursuant to medical advice while unaware of intoxicating effect.
  • Defense for all crimes
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31
Q

Infancy Defense

A
  • No criminal liability for minors aged 7 and under.
  • Ages 7-14 = rebuttable presumption child is unable to understand wrongfulness of acts
  • Age +14 Child is treated as an adult.
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32
Q

Self Defense - Nondeadly Force

A

A person without fault may use such force as the person reasonably believes is necessary to protect themself from the imminent use of unlawful force upon themself. There is no duty to retreat.
Generally, nondeadly force is justified where it appears necessary to avoid imminent injury or to retain property

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33
Q

Self Defense - Deadly Force

A
  • A person may use deadly force in self-defense if they
  • 1) Are without fault, (did not start the physical violence)
  • 2) Are confronted with unlawful force, and
  • 3) Reasonably believes they are threatened with imminent death or great bodily harm.
    o No Duty To Retreat (Majority view)
34
Q

Defense of Others

A
  • A defendant has a right to defend others if the defendant reasonably believes the other person has right to use force in own defense.
  • No special relationship requirement in modern rule.
35
Q

Defense of Dwelling

A
  • A person may use non-deadly force in the defense of dwelling to the extent that they reasonably believe that it is necessary to prevent an unlawful entry.
  • Deadly force may be used only to prevent violent entry and when the person reasonably believes force is necessary to prevent a personal attack on themselves or another in the dwelling.
36
Q

Defense of Chattel

A
  • Deadly force may never be used in defense of property. Reasonable, nondeadly force may be used to defend property in one’s possession from what they reasonably believe is an imminent, unlawful interference.
  • Force may not be used if a request to desist or refrain from the activity would suffice.
  • A person may use force to regain possession of property that they reasonably believe was wrongfully taken only if they are in immediate pursuit of the taker
37
Q

Duress Defense

A
  • Defense to all crimes, other than intentional homicide, that defendant reasonably believed another person would imminently inflict death or great bodily harm if defendant did not commit crime.
38
Q

Necessity Defense

A
  • It is a defense to a crime that the person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime.
  • The test is objective; a good faith belief is not sufficient.
  • The defense of necessity is not available if the defendant is at fault in creating the situation requiring that they choose between two evils.
39
Q

Accomplice Liability

A

Elements
(1) the intent to assist the primary party
(2) the intent that the primary party commit the offense charged.
(3) actually assising or encouraging the commission of illegal conduct.

Remember a person is not liable for accomplice liability. They are liable for the crime committed through the theory of accomplice liability.

Mere knowledge that a crime would result from the aid provided is generally insufficient for accomplice liability.

Accomplice is liable for the crime contemplated and any other crimes committed by the principals that were probable or foreseeable.

40
Q

Arrest and Probable Cause

A
  • All arrests must be based on probable cause
  • the totality of the circumstances, including trustworthy facts or knowledge, is sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law.
41
Q

First statement on murder problem.

A

“In order to be guilty of murder, defendant must have the mens rea of malice aforethought which is satisfied in most jurisdictions with intent to kill (first- degree), with knowledge that his acts would kill (first-degree), with intent to inflict great bodily harm (second-degree), or with reckless disregard of an extreme risk to human life (second- degree).”

42
Q

Fourth Amendment: Standing

A

A person has standing to raise a Fourth Amendment challenge if he has an expectation of privacy in the thing searched or seized.

43
Q

Fourth Amendment (searches and seizure): General Rule

A
  • The Fourth Amendment applies to searches or seizures conducted by government agents in areas where the complaining individual has a reasonable expectation of privacy.
  • An agent usually needs a warrant. However, there are many exceptions, including exigent circumstances, search incident to arrest, consent, the automobile exception, plain view, inventory searches, special needs, and Terry stops.
44
Q

Fourth Amendment: Plain View Exception

A

If officers are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to it, they may seize it without a warrant.

45
Q

Fourth Amendment: Terry Stops and Frisks

A
  • Police can briefly detain a person (or seize property) for investigative purposes without probable cause for arrest if they have a reasonable suspicion supported by articulable fact of criminal activity or involvement in in a completed crime.
  • a police officer may pat down a detained person only if the officer has a reasonable suspicion to believe that the detainee is armed and dangerous.
  • When reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability (cannot be anonymous).
46
Q

Confessions on an Essay

A

If the essay tests confessions, talk about Fourteenth Amendment, Sixth Amendment, and Fifth Amendment
Know that anything other than an unequivocal request for counsel will not be sufficient to invoke one’s Fifth Amendment Miranda rights.
Officers are virtually never required to tell the defendant that a lawyer is trying to contact him.

47
Q

Automobile stops

A
  • Generally, police officers may stop a car if they have at least reasonable suspicion to believe that any law has been violated (including traffic laws)
  • The officer may order the occupants of the vehicle to get out.
  • If the police have probable cause to believe a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop.
48
Q

Fourteenth Amendment: Voluntariness under the Due Process Clause

A
  • Confession Must Be Voluntary – voluntariness determined by totality of circumstances.
  • A statement will be involuntary only if there is some official compulsion.
  • The standard for excluding a confession under the Due Process Clause is (1) whether the police subjected the suspect to coercive conduct and (2) whether the conduct was sufficient to overcome the will of the suspect.
49
Q

Sixth Amendment: Right to Counsel

A

The Sixth Amendment, as applied to the states through the Fourteenth Amendment, provides that the accused has the right “to have Assistance of Counsel for his defense.”

It attaches when judicial proceedings have begun
* That is, when the accused is formally charged via indictment, arraignment, preliminary hearing, etc.
* It does not attach upon arrest or before oproceedings have begun.
* It applies to all “critical stages” of the prosecution after formal charges are filed.

Once it attaches, any attempts to deliberately elicit an incriminating statement about the offense that the defendant was charged with, in the absence of counsel or a knowing, intelligent, and voluntary waiver, violates the Sixth Amendment.

However - unlike 5th amendment, the invocation of 6th amendment rights is offense specific – if an attorney is present for burglary charge the police can ask the suspect other questions unrelated to the burglary charge without the attorney’s presence.

Two offenses will be considered different if each requires proof of an additional element that the other crime does not require.

50
Q

What is the Miranda Warning (5th amendment)

A

The Miranda warning requires police to inform interrogated person of their:
(1) right to remain silent; (2) Right to an Attorney, and (3) given notice that If they can’t afford an attorney, one will be appointed and (4) advised that anything said can be used against them in court.

51
Q

When is Miranda necessary?

A

Interrogation by a known government agent while in custody

1) Government Conduct
* Detainee knows they are being interrogated by government agent. Warnings are not necessary if interrogation is made by an informant.

2) Custody
* A reasonable person under the circumstances would feel that they were not free to terminate the interrogation and leave.

3) Interrogation
* Any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee.
* Miranda warnings are not required before spontaneous (blurted) statements are made by a detainee.
* Routine booking questions do not constitute interrogation.

52
Q

waiver of Miranda

A

Waiver of Miranda rights must be 1) knowing and 2) voluntary.

53
Q

Invocation of Miranda

A
  • Invocation Of Right to Remain Silent – must be unambiguous.
  • The police must scrupulously honor the request by not badgering the detainee about the crime charged or any others.
  • One miranda is invoked, all interrogation must cease, even interrogation by an informant.
54
Q

Miranda Violations

A
  • Evidence gathered in violation of Miranda rights is generally inadmissible (exclusionary rule)
  • However:
  • Statements may be used to impeach defendant’s trial testimony but not used as evidence of guilt.
  • Physical fruits of voluntarily made incriminating statements in violation of miranda are admissible
55
Q

Miranda exceptions

A
  • Public Safety Exception – Police can interrogate without Miranda warnings when reasonably prompted by concern for public safety.
  • Pretrial Identification – No right to counsel at photo identification. 6th amendment right to counsel applies to post-charge lineup or show up.
56
Q

Exclusionary rule

A
  • Prohibits introduction of evidence obtained in violation of a defendant’s Fourth, Fifth, and Sixth Amendment rights.
  • Unconstitutionally obtained evidence is inadmissible at trial, and all “fruit of the poisonous tree” must also be excluded unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct.
  • However, a defendant may not exclude witnesses in court identification on the grounds that it’s the fruit of a poisonous tree or unlawful detention.
57
Q

Exclusionary rule exceptions

A

Evidence admissible despite the exclusionary rule:
o Fruits derived from statements made in violation of Miranda if it’s not purposeful.
o Evidence obtained from independent sources.
o Attenuated or Remote violation: Causal Link between police misconduct and evidence is broken, or the misconduct was not purposeful
o Defendant intervening act of free will.
o Inevitable Discovery.
o Violation of knock and announce rule.
o Good faith exception – the exclusionary rule is inapplicable if the police arrest someone in good faith belief that they are acting pursuant to a valid arrest warrant.
EXCEPT 4 situations where:
 Affidavit is so lacking in probable cause no reasonable officer would rely on it.
 Affidavits are so lacking in particularity; no reasonable officer would rely on it.
 Officer or prosecutor lied to or misled the magistrate.
 Magistrate is biased and wholly abandoned neutrality.

Some illegally obtained evidence may still be used to impeach the defendant’s credibility if they take the stand at trial. Specifically, an otherwise voluntary confession taken in violation of the Miranda requirements is admissible for impeachment purposes, and evidence obtained from an illegal search may be used by the prosecution to impeach the defendant’s, but not others’, statements.

58
Q

Accessory After the Fact

A

A person who, with knowledge of a completed crime, assists the perpetrator to escape arrest or punishment.

59
Q

Elements of Arson

A
  • Majority Law: Malicious burning of any structure or dwelling
  • Common law: Malicious burning of dwelling of another.
  • No specific intent is required. Malice crime - acting with a reckless disregard of an obvious risk that the structure would burn.
  • Accidently burning your neighbor’s house down instead of your own is sufficient for malice.
  • Significant damage is not required for a conviction.
  • Charring is SUFFICIENT
  • Scorching: blackening by smoke or discoloration by heat is NOT SUFFICIENT – but does suffice for attempted arson.
60
Q

Constituional basis for Miranda

A
  • The fifth amendment privilege against self incimination
  • can be invoked at ANY time
61
Q

Right to Counsel Violations: 6th Amendment

A
  • accused has right to assistance of counsel for his defense.
  • Statements obtained in violation of the defendant’s 6th amendment right to counsel will not be admissible in the prosecutions case in chief
  • Statements made in violation of 6th amendment rights may be used to impeach the defendent.
  • Remedy – If Defendant was entitled to a lawyer at trial and a lawyer was not provided it results in the automatic reversal of conviction.
  • At non-trial proceedings (such as post-indictment interrogations), the harmless error rule applies to deprivations of counsel.
62
Q

Right to Counsel - Consitutional basis

A

The sixth amendment - rights only attach after judiical proceedings have begun.
applied to the states via the 14th amendment

63
Q

Examples where 6th amendment right to counsel applies

A
  • Post-Indictment interrogation
  • Preliminary hearings to determine probable cause to prosecute.
  • Arraignment
  • Post – charge line ups
  • Guilty plea and sentencing
  • Felony trials
  • Misdemeanor trials when imprisonment is actually imposed.
  • Overnight recesses during trial
  • Appeals as a matter of right
  • Appeals of guilty pleas
64
Q

Examples where 6th amendment right to counsel DOES NOT apply

A
  • Blood sampling
  • Tracking of handwriting or voice exemplar
  • Pre-charge or investigative line ups
  • Photo identifications
  • Preliminary hearings to determine probable cause to detain.
  • Brief recesses during defendant’s testimony
  • Discretionary Appeals
  • Parole and Probate revocation proceedings
  • Past-Conviction Proceedings
65
Q

Invocation of 6th amendment right to counsel

A
  • Invocation Of Right To Counsel – must be unambiguous. All questioning must cease (including questioning about another offense) until counsel has been provided. unless detainee:
  • waives the right to counsel or
  • Is released back to the public and 14 days has passed.
66
Q

Waiver of right to Counsel

A

Waiver of right to counsel must be 1) knowing and 2) voluntary.

67
Q

Causation in Homicide

A
  • The defendant’s conduct must be both the cause-in-fact and the proximate cause of the victim’s death
68
Q

Causation In Fact

A

When a defendant’s conduct is the cause in fact of the result, the result would not occur but for the defendant’s actions.

69
Q

Proximate Causation

A

Defendant’s conduct is the “natural and probable consequence” of the conduct. Applies even if the defendant did not anticipate the precise manner of the result.
Look out for intervening acts.

70
Q

Intervening acts

A
  • Intervening acts shield the defendant from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the defendant. They break the chain of the causation.
  • A third party’s negligent medical care and the victim’s refusal of medical treatment for religious reasons.
  • Grossly negligent medical care is an intervening act.
  • An act that hastens an inevitable result is still the cause of that result.
  • Simultaneous action of two defendants may be independent causes of that same result, even if foreseeability does not break the chain of causation.
71
Q

mental state required for accomplice liability

A
  • Purposely or knowingly requires
    o (1) the intent to assist the principal in the commission of a crime; and
    o (2) the intent that the principal commit the substantive offense
  • Recklessness or negligence requires that the accomplice
    o (1) intended to facilitate the commission of the crime; and
    o (2) acted with recklessness or negligence (whichever is required by the particular crime).
  • Mere knowledge that a crime will result is not enough for accomplice liability where the aid given is in the form of the sale of ordinary goods at ordinary prices.
  • Procuring an illegal item or selling at a higher price because of the buyer’s purpose may constitute intent.
  • Accomplice liable for the crime contemplated and any other crimes committed by the principals that were probable or foreseeable.
72
Q

Defense of withdrawal/abandonment from accomplice liability

A

Before the crime becomes unstoppable, accomplice:
* Must repudiate encouragement. – Mere withdrawal from a situation is not sufficient, and
* Must attempt to neutralize assistance – Notifying police or taking other action to prevent crime is also sufficient.

73
Q

Defense of withdrawal/abandonment from attempt

A
  • Not a defense at common law.
  • Abandonment is a defense under MPC if
    o fully voluntary
    o complete renunciation.
74
Q

Elements of Conspiracy

A
  • 1) Agreement between 2 or more person
  • 2) with an intent to enter into agreement
  • 3) intent to achieve criminal objective of agreement.
  • 4) modern rule requires an act in furtherance of the conspiracy (but common law does not).
    o Specific intent crime.
    o Common law does not require overt act
    o majority of state statutes require overt act, although mere preparation may suffice.
    o Co-conspirators liable for the crime contemplated and any other crimes committed that were probable or foreseeable.
75
Q

Defense of withdrawal/abandonment from conspiracy

A
  • Withdrawal is NO DEFENSE to Conspiracy, because conspiracy is complete the moment the plan is made + act in furtherance of the conspiracy.
  • Withdrawal may be DEFENSE to substantive crimes committed in furtherance of conspiracy. Defense against accomplice liability.
    o Conspirators must perform an affirmative act that notifies ALL co-conspirators of withdrawal in time for them to abandon plan. If the conspirator has also provided assistance as an accomplice, they must try to neutralize the assistance.
76
Q

Elements of Solicitation

A

Asking, inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime. It is not necessary that the person solicited agree to commit the crime.

77
Q

Withdrawal defense to solicitation

A
  • In most jurisdictions, it is not a defense that the solicitor renounces or withdraws the solicitation.
  • The M.P.C. recognizes renunciation as a defense if the defendant prevents the commission of the crime, such as by persuading the person solicited not to.
78
Q

Which Inchoate crimes merge into the substantive offense?

A

Solitation: merges
Conspiracy: does not merge
Attempt: merges unless transferred intent

79
Q

public safety exception to miranda

A

Miranda warnign not required if the questions are intended to protect public saftey, such as to secure a loose weapon after a shooting.

80
Q

Fourteenth amendment voluntary confession requirement

A

Under the fourteenth amendment:
* Confessions Must Be Voluntary – voluntariness determined by totality of circumstances.
* A statement will be involuntary only if a government ageny subjected the suspect to unduly coercive conduct
* If an involuntary confession admitted into evidence may be used subject to the harmless error test

81
Q

Model Penal Code Insanity Test (HYBRID M’Naughten & Impulse Test)

A

Defendant has mental disease or defect, and, as a result, lacked substantial capacity to either 1) appreciate criminality of conduct OR 2) conform conduct to the law.

Bar (16 decks)

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