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MBE Rules > Criminal Law and Procedure > Flashcards

Criminal Law and Procedure Flashcards

1
Q

Elements of

Attempt

A
  • Intent to commit the crime
  • An overt act or substantial step to completing the crime
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2
Q

Does attempt merge into the completed crime?

A

Yes, defendant cannot be guilty of both attempt and the completed crime

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3
Q

Can a defendant withdraw from an attempt?

A

No, once intent and a substantial step are taken, they cannot withdraw

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4
Q

Elements of

conspiracy at common law

A

Two or more people agree with specific intent to commit the crime

If defendant comes to an agreement with an undercover cop, they cannot be guilty of conspiracy

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5
Q

Theory of

conspiracy under the Model Penal Code (MPC)?

A

Unilateral theory, where only one person needs to agree with specific intent

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6
Q

What is the liability of a co-conspirator for crimes committed by another co-conspirator?

A

A co-conspirator is guilty of any crime their co-conspirator commits in furtherance of the conspiracy

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7
Q

Does conspiracy merge into the completed crime?

A

No, conspiracy does not merge with other crimes

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8
Q

Can a defendant withdraw from a conspiracy?

A

No, they cannot withdraw from the conspiracy itself

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9
Q

When does a defendant withdraw from other crimes committed in furtherance of a conspiracy?

A

When they gave timely notice of withdrawal to co-conspirators

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10
Q

Elements of

solicitation

A

Defendant encourages, urges, or incites another to commit a crime with intent for it to be completed

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11
Q

Does solicitation merge into the completed crime?

A

Yes

Defendant cannot be guilty of both solicitation and the completed crime

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12
Q

Can a defendant withdraw from solicitation?

A

No

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13
Q

What is the M’Naughten test for insanity?

A

Mental disease which makes the defendant unable to appreciate the nature and quality of their actions so that they can’t understand what they are doing is wrong

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14
Q

What is the insanity defense under MPC?

A

Defendant lacks substantial capacity to appreciate criminal conduct

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15
Q

In a federal trial, how must a defendant prove insanity as a defense?

A

By clear and convincing evidence

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16
Q

What defines voluntary intoxication?

A

Defendant went out and got drunk voluntarily

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17
Q

To what types of crimes is voluntary intoxication a defense?

A

Specific intent crimes

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18
Q

What defines involuntary intoxication?

A

Defendant was given something that intoxicated them without consent

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19
Q

To what types of crimes is involuntary intoxication a defense?

A

All crimes

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20
Q

When is mistake a defense?

A

A defense to specific intent crimes based on the reasonableness of the mistake

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21
Q

When is mistake a defense in general intent crimes?

A

Only a reasonable mistake is a defense

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22
Q

What is legal impossibility a defense?

A

Always a defense because the crime did not happen

Remember: MBE will never use the word impossibility

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23
Q

What is factual impossibility?

A

Never a defense because the elements of the crime were met

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24
Q

What is entrapment?

A

Law enforcement creates criminal activity and the defendant is not predisposed to commit the crime

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25
# Define Duress
Defendant is under duress when they have a reasonable belief of threat of great bodily harm or death
26
Is duress a defense to murder?
No, never.
27
What is required for self-defense?
Reasonable belief of imminent danger and bodily harm
28
What type of force is allowed in self-defense?
Only the same amount of force being applied to them
29
When is deadly force allowed in self-defense?
Only if facing deadly force themselves
30
# Define Defense of others
Defendant had a reasonable belief a third party is in imminent danger
31
What level of force can be used in defense of property?
Reasonable force, never deadly force unless in fear of one's own life
32
What are the four ways to commit murder?
* Intent to kill * Intent to inflict serious bodily harm * Felony murder * Depraved heart murder
33
# Define Intent to kill
Defendant had specific intent and the killing was premediated
34
Intent to commit serious bodily harm
Defendant just wanted to injure the victim because they had no specific intent to kill ## Footnote never infer specific intent to kill
35
# Define Felony Murder
A death occurs while committing a dangerous felony
36
What is a dangerous felony?
BARRK * Burglary * Arson * Robbery * Rape * Kidnapping
37
Death of a Co-Felon
The death of a cofelon/accomplice can support a felony-murder conviction when the defendant unintentionally kills the cofelon while committing or attempting to commit the inherently dangerous felony. ## Footnote Most jurisdictions do not consider it felony murder when a cofelon is killed by a victim or a police officer.
38
# What is Depraved Heart Murder
Defendant had a reckless disregard for human life * knew or should have known someone could have died and did it anyways
39
# What is voluntary manslaughter?
Adequate provocation leading to heat of passion without time to cool off
40
# What is involuntary manslaughter?
Negligent conduct causing a death
41
What is the difference between recklessly and negligently killing someone?
* reckless killing = people present * negligent killing = no people present ## Footnote Look for other people present in the facts
42
What is the rule regarding excessive force in self-defense?
Only reasonable force is allowed; excessive force may lead to voluntary manslaughter
43
What happens if a parent neglects a child leading to death?
Considered involuntary manslaughter due to negligence
44
Who must conduct a search or seizures for the 4th Amendment to apply?
A government agent or someone under the direction of the government
45
What is a search?
When the government is conducting a search of a location where a defendant would have a reasonable expectation of privacy
46
Open Fields Doctrine
Open areas/fields do not have a reasonable expectation of privacy
47
# Define Probable Cause
A reasonable person would conclude that it is more probable than not that a crime has taken place
48
What are the general requirements for a warrant?
* Must be issued by a neutral and detached magistrate, * Facts have to be fresh, and * The person and places to be searched have to be very specific ## Footnote Search cannot exceed the scope of the warrant
49
What must happen once the police find what they were looking for based on a warrant?
The search must stop
50
Can police rely on informants for probable cause?
Yes, but if informants are deemed unreliable, look for at totality of the circumstances
51
What can police seize under the Plain View doctrine?
What is in plain view during a lawful search
52
Does an unlawful arrest from an illegal search automatically dismiss an indictment?
No
53
What is a Protective Sweep?
Police looking for more criminals for their own safety, requiring proof that others could/should be present
54
Who can consent to a search of property?
Someone who owns or has apparent authority to control the property
55
What happens if two people control property and only one occupant consents to the search?
The cops cannot search
56
What happens if two people control property and only one occupant is home?
If the person that is home consents, then the police can search
57
Search Incident to Lawful Arrest
* The arrest must be lawful; * The police can only search the person and their wingspan
58
Under what conditions may police search the passenger compartments of a car?
* If the defendant is arrested and unsecured, or * If there is reasonable belief that evidence of a crime is in the car
59
Inventory Search
A search conducted once a defendant is arrested and at the police station
60
When do Exigent Circumstances apply?
If the police have a reasonable belief that the evidence may be lost or destroyed they can obtain evidence without a warrant
61
What evidence is admissible from an illegal traffic stop?
Nothing
62
What can police do during a legal traffic stop?
They cannot search the car unless there is evidence of other crimes
63
What happens if there is probable cause during an automobile stop?
Police may search the entire car
64
Is a warrant necessary for border searches?
No
65
Can US officials search suspects on foreign land?
Yes
66
Is a dog sniff in a public place considered a search?
No, and no warrant is needed
67
What is required for a Stop/Frisk?
Stop: reasonable suspicion that criminal activiity is afoot; Frisk: reasonable belief a person is armed & dangerous
68
What is required for Automobile Checkpoints?
Allowed with a generic uniform method for stop
69
What are the elements for a statement to be subject to Miranda?
The statement must be a product of a custodial interrogation
70
# Define Custody
A reasonable person does not feel free to leave
71
# Define Interrogation
When a statement or question made by a cop is an attemot to elicit a criminal response from defendant
72
Is Miranda required for voluntary statements?
No
73
What happens once a suspect invokes their Miranda rights?
All questioning must stop
74
# Requirments for a waiver of Miranda rights
The waiver must be knowingly and voluntarily made
75
Right Against Self-Incrimination
A defendant is never required to testify ## Footnote Defendant can be required to perform physical acts/demonstrations at trial
76
Lineups & IDs
Lineups or pictures of the defendant cannot be unnecessarily suggestive
77
When is there a right to counsel for lineups?
* No right to counsel at a lineup prior to indictment * Right to counsel after indictment
78
What is Right to Effective Counsel?
* Did the attorney deviate from the norms, and * Is it reasonably probable the outcome would have been different
79
When does a defendant waive the right to counsel?
When they waive the right knowingly
80
What rights does a defendant have at critical stages of proceedings?
Right to counsel
81
List some critical stages where a defendant has the right to counsel.
* Post-indictment interrogation * Predominate hearings for probable cause to prosecute * Arraignment * Post-charge lineups * Guilty pleas & sentencing * Felony trials * Misdemeanor trials with imposed imprisonment * Overnight recesses during trial
82
What are some instances where there is no right to counsel?
* Blood sampling * Handwriting or voice samples * Pre-charge/investigative lineups * Photo IDs * Preliminary hearings for probable cause to detain * Brief recess during defendant's testimony * Parole & probation revocation proceedings * Post-conviction proceedings
83
What happens if an undercover officer is in a jail cell to get a defendant to talk?
It violates the right to counsel
84
What must happen for a guilty plea to be valid?
The plea must be entered voluntarily and intelligently
85
What is the Right to Fair Trial regarding severance?
If one defendant is prejudiced, they can sever the trial and be tried on their own
86
What is the Right to Fair Trial regarding impartiality?
A defendant has a right to an unbiased judge
87
What does competency entail for a defendant?
The defendant must understand the trial and work with counsel; they can be medicated to be competent
88
When does a defendant have the right to a jury trial?
If the sentence is longer than 6 months ## Footnote Exclusion of a juror based on race/gender violates equal protection
89
When do jury verdicts have to be unanimous?
* State trial by 6 jury members * Federal trial by 12 jury members ## Footnote State trial by 12 jury members need not be unanimous
90
What is the Defendant's Right to Confrontation?
Right to confront and cross-examine all witnesses
91
What happens if one co-defendant confesses that implicates another?
The confessor must be available to testify
92
What is the rule regarding testimonial statements?
* If a statement is testimonial, it is inadmissible; * Non-testimonial statements are admissible ## Footnote Non-testimonial (made during the course of an emegerency to aid the police)
93
What does Double Jeopardy not apply to?
Any proceding before the first trial * Grand jury * Preliminary hearings ## Footnote There must be a final judgment at friest trial for it to apply
94
Can a defendant be tried in separate sovereigns?
Yes, a defendant can be tried in two different states or in state and federal court
95
What is Collateral Estoppel?
No retrial is allowed if the second trial requires an element that the defendant was previously acquitted of ## Footnote Second trial for felony murder after defnedant was acquitted of robbery
96
What is required for punishment to not be considered cruel and unusual?
Must be proportionate to the crime and consistent with punishment for similar crimes
97
Who cannot be sentenced to death?
* A person under 18 at the time of the crime * Someone who is mentally challenged

MBE Rules (7 decks)

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