Criminal Law and Procedure Flashcards
1
Q
Theft Crimes
A
- Larceny
- Embezzlement
- False Pretenses
- Larceny by Trick
- Robbery
- Receipt of Stolen Property
- Forgery
- Extortion
2
Q
Larceny
A
- Trespassry (without consent of owner, need not be physical)
- Taking and carrying away of
- Tangible personal property of another;
- With intent to permanently deprive the true owner of their interest in the property
3
Q
Embezzlement
A
- Fraudulent conversion (not trespassory because has lawful possession by consent);
- of property of another;
- By a person in lawful possession of that property (trust position)
4
Q
False Pretenses
A
- Obtaining TITLE;
- to the property of another;
- by an intentional or knowing false statement of PAST or EXISTING fact;
- with intent to defraud the other
5
Q
Larceny by Trick
A
- Obtaining POSSESSION
- of the property of another
- by an intentional or knowing false statement of PAST or EXISTING fact
- with intent to defraud the other
6
Q
Robbery
A
- Taking of personal property of another;
- From other’s person or presence;
- By force or threat of force
- with intent to permanently deprive the other of his interest in the property
7
Q
Receipt of Stolen Property
A
- Defendant receives possession and control of stolen property
- knowing it was stolen or that supplier did not have right to property
- by another person
- intent to permanently deprive true owner of their property
8
Q
Forgery
A
- Making or altering a false writing
- of apparent legal significance
- with intent to defraud
9
Q
Extortion
A
- Obtaining of property or other thing of value
- by means of oral or written threats
threat need not be immediate harm
property need not be taken from victim’s immediate presence
10
Q
Burglary
A
- Breaking and
- entering
- of the dwelling of another
- in the nighttime
- with intent to commit a felony therein
CA - breaking and nighttime elements eliminated, includes any structure
11
Q
Arson
A
Malicious burning of the dwelling of another
12
Q
Crimes Against The Person
A
- Criminal Assault
- Criminal Battery
- Mayhem
- Kidnapping
- Rape
- Statutory Rape
- Homicide
13
Q
Criminal Assault
A
- Attempt to commit a battery (specific intent) OR
- Intentional creation (by other than mere words) or a reasonable apprehension in the mind of the victim of imminent bodily harm (subjective)(general intent)
14
Q
Criminal Battery
A
- Unlawful application of direct or indirect force (explain what makes something unlawful)
- to the person of another
- resulting in
- bodily injury or an offensive touching
aggravated battery - victim is a child, woman, or police officer
15
Q
Mayhem
A
Dismemberment or disablement of body part
16
Q
Kidnapping
A
- Confinement of a person;
2. that involves either movement of the victim OR concealment of victim in a secret place
17
Q
Aggravated Kidnapping
A
Kidnapping for purpose of:
- ransom
- commit other crimes
- offensive (sexual offense)
- child stealing
18
Q
Rape
A
At common law:
- Unlawful carnal knowledge (without consent - force, threat, or victim’s incapacity)
- of a woman
- by a man who is not her husband
modern statutes - eliminates the third element
19
Q
Statutory Rape
A
Strict liability - depends solely on victim’s age
20
Q
Homicide Analysis
A
- Is there second-degree murder
- if no, is it first degree murder
- if no, is it voluntary manslaughter
21
Q
Second Degree Murder (common law)
A
All murder is second degree murder unless committed with premeditation and deliberation (first degree murder)
- Unlawful killing of a human being (without justification and with causation)
- with malice aforethought
Intent to kill or inflict great bodily injury;
Reckless indifference to the unjustifiable high risk to human life;
Felony Murder
22
Q
Premeditation
A
Act committed after a period of reflection - which could be brief
23
Q
Deliberation
A
Cool and dispassionate
24
Q
1st Degree Felony Murder
A
- Burglary
- Arson
- Robbery
- Rape
- Kidnapping
- Train Robbery
25
Voluntary Manslaughter
1. Intentional killing of a human being
| 2. With adequate provocation
26
Adequate provocation
1. Provocation would create a sudden and intense passion in the mind of an ordinary person (obj)
2. Defendant is in fact provoked (subj)
3. insufficient time for passions of a reasonable person to cool (obj)
4. Defendant in fact did not cool off (subj)
27
Involuntary Manslaughter
Involves either:
1. Criminal Negligence (greater deviation from standard of care); OR
2. Killing caused by an unlawful act not a felony (misdemeanor)
28
Attempt
1. Intent to commit a specific crime; and
| 2. overt act in furtherance of that crime.
29
Inchoate Crimes
1. Solicitation
2. Accomplice Liability
3. Conspiracy
4. Accessory After the Fact
30
Solicitation
1. Defendant incites, counsels, advises, induces, urges, or commands another person to commit a crime
2. with the intent that the crime be committed by that person
31
Accomplice Liability
1. Defendant encourages or assists
2. another person who commits a crime
3. with intent to promote or facilitate the commission of the crime.
Defendant liable for all foreseeable acts/crimes (discuss foreseeability of each crime individually to decide if accomplice is guilty)
32
Conspiracy
1. An agreement between or among two or more persons to commit a crime
2. intent to enter into the agreement
3. intent to achieve the objective of the agreement
Members of conspiracy are liable for all acts of other co-conspirators that are foreseeable and in furtherance of conspiracy
most states require an overt act in furtherance of conspiracy but this can be mere preparation
33
Wharton Rule
if crime requires two participants, third person must enter into the agreement for there to be a conspiracy
34
Accessory After the Fact
One who receives, relieves, comforts, or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial or conviction
35
Self Defenses
Person may use deadly force if:
1. he is without fault (did not initiate the assault or provocation);
2. he is confronted with unlawful force; and
3. he reasonably believes he is threatened with imminent death or great bodily harm
36
Imperfect Self Defense
1. Unreasonable belief
| 2. mitigates to voluntary manslaughter
37
Defenses of Others
Defendant must reasonably believe the other person is legally entitled to use force and may only use reasonable force to prevent it
38
Duress Criminal Defense
1. threat
2. defendant reasonably believes threatens death or great bodily harm
3. not a defense to homicide crimes
39
Mistake of Fact Criminal Defense Defense
1. Reasonable
| 2. Negates mental state required
40
Voluntary Intoxication Criminal Defense
Not a defense to general intent or malice crimes.
It is a defense to specific intent crimes, including attempt, first degree murder
41
Involuntary Intoxication Criminal Defense
Defense to both general and specific intent crimes
It may be treated as insanity, in which case you discuss the four types of insanity defenses
42
M'Naghten Rule
Defendant lacked ability to either know the wrongfulness of his actions or understand the nature and quality of his actions
43
Irresistible Impulse
Because of a mental illness, D is unable to control his actions or conform his conduct to the law
44
Durham Rule
But for causation - if the crime was a product of the mental disease or defect, then this requires an acquittal
45
ALI/MPC Test
As a result of mental disease, defendant lacked substantial capacity to either appreciate the criminality of his conduct or to conform his conduct to the law
46
4th Amendment
Search and Seizure
Stop, arrest, search.
1. Was there government conduct. (some type of police action)
2. Does D have standing to contest search and seizure?
a. Is there a subjective expectation of privacy (did D actually expect privacy)
b. Does society objectively consider there to be privacy in the thing or place to be searched?
3. Was there a stop? (Stop and Frisk - Terry Test or police checkpoints)
47
5th Amendment
Miranda Rights:
Right to Counsel for Custodial Interrogations
Privilege Against Self-Incrimination
48
6th Amendment
Right to Counsel at all critical stages once adversary proceedings have begun (attaches only after the accused has been charged)
and Confrontation Clause (co-conspirator confessions)
49
8th Amendment
Bail
50
14th Amendment
Due Process
51
Stop and Frisk
Frisk - pat down of the outside of clothing and bags to determine if suspect is carrying a weapon.
Any disclosure of any item other than weapon through frisk requires warrant or warrant exception
Police must show:
1. reasonable suspicion
2. supported by articulable facts;
3. of criminal activity
52
Police Checkpoints
1. Cars are stopped on a neutral, articulable standard;
| 2. Roadblock designed to serve purposes closely related to a particular problem related to automobiles
53
Searches, Warrants, and Arrests Analysis
1. If there a search, did the police have a warrant?
2. Was the warrant valid?
3. If there is no warrant or the warrant is invalid and cannot otherwise be saved, is there an exception?
54
Valid Warrant
1. Warrant must describe the place to be searched and the objects of the search with reasonable particularity.
2. Warrant must be issued by a neutral and detached magistrate
3. May not be based on willfully false statements
55
Exceptions to Warrant Requirement
1. Consent
2. Automobile
3. Plain view
4. Search incident to Lawful arrest
5. Protective sweep
6. Exigent Circumstances
7. Inventory search
8. Inevitable Discovery
9. Independent Source
56
Consent Exception
Exception to warrant requirement if consent is knowing, valid, and intelligent
57
Automobile Warrant Exception
Warrant is not required if there is probable cause that there are seizable items or contraband in the car
Exception does not apply to automobiles within curtilage of home
58
Plain View Warrant Exception
Exception to warrant requirement if it is in plain view of the area in which the individual was arrested
59
Search Incident to Lawful Arrest Analysis
1. Is the arrest lawful?
2. Does the search take place immediately after the arrest?
3. Is the search in connection with the arrest?
4. Is the search within D's wingspan?
If accused is secured, search is permitted only if reasonable to believe that evidence of the offense for which arrestee has been arrested might be found in vehicle.
60
Does lawful arrest require search warrant?
Lawful arrest requires a warrant unless:
1. officer sees D committing a felony or has probable cause (reasonable grounds) that D is committing or has committed a felony; or
2. officer sees D committing a misdemeanor
61
Protective Sweep Warrant Exception
Exception to warrant requirement if facts indicate probable cause that an accomplice may be present - permissible to search areas where they may be found
62
Exigent circumstances Warrant Exception
Exception to warrant requirement if there is a threat that the evidence will be destroyed.
Law enforcement cannot create the exigent circumstance
63
Inventory search Warranty Exception
Exception to warrant requirement if done within the booking process (an established police department procedure)
64
Inevitable Discovery Warrant Exception
Exception to warrant requirement if police would have discovered the evidence even if they had not acted illegally
65
Independent Source Warrant Exception
Exception to warrant requirement by admitting evidence that the prosecutor can show was obtained independent of the original illegal conduct.
66
4th Amendment Violation REMEDIES
Exclusionary Rule (exclusion of evidence)
Good Faith Exception - violation may be disregarded if police acted under a good faith belief
Impeachment Exception - even if illegally obtained, evidence admissible to impeach accused's testimony
67
Confessions
1. 14th Amendment - was confession voluntary (not coerced), looking at the totality of the circumstances.
2. 6th Amendment - right to counsel at all critical stages once adversary judicial proceedings have begun. Attaches post charge.
3. 5th Amendment right against self-incrimination and right to counsel - before any custodial interrogation, D must be given Miranda warnings
68
Custody
Accused not free to leave or reasonably believes not free to leave
69
Interrogation
Questions designed to elicit incriminating information
70
Accused claims right to remain silent
Questioning may only be re-initiated after a reasonable amount of time has passed, but only on a separate crime
71
Accused claims right to counsel
Questioning may not be re-initiated absent presence of counsel, unless accused is first released into the general prison population for at least 14 days and given Miranda rights are repeated
72
Confessions - Impeachment
Illegally obtained confessions and statements admissible to impeach accused as a prior inconsistent statement, but not admissible for their truth
73
Pretrial Identifications
6th Amendment right to counsel - right attaches post-charge.
14th Amendment Due Process Clause - Identification cannot be:
1. unreasonably suggestive; and
2. cannot be a substantial likelihood of mis-identification
74
Fruit of the Poisonous Tree
If subsequent identification result from tainted procedure, exclusionary rule excludes it from evidence.
If subsequent identification is made independent from tainted procedure, it is permitted
75
Co-Defendant Confessions
6th Amendment Confrontation Clause
Co-D's confession admissible only if:
1. statements concerning the other party are redacted; OR
2. co-D is subject to cross-examination
76
Informants
5th Amendment - Miranda warnings need not be given where the interrogation is by an informant who D does not know is working for the police.
6th Amendment - post charge - Violation if Government informant is placed in D's cell after D has been charged and informant deliberately elicits statements. (no violation if D gives info)
ELEMENTS:
1. government informant must be paid or promised something or otherwise be acting as a government agent
2. D must have been charged
3. informant must actively ask questions designed to elicit statements regarding the charged crime.
77
Right to Speedy Trial
Attaches when D is arrested or charged.
Remedy is dismissal with prejudice.
Factors:
1. length of delay;
2. reasons for delay;
3. whether D asserted his right to a speedy trial (if D requested delay then cannot claim denial of speedy trial);
4. prejudice to D
78
Bail
8th Amendment - accused entitled to bail, in some appropriate amount, in non-capital cases, in an amount that is designed to make it unlikely that D will flee
79
Pleas
Must be voluntary and intelligently made
Judge must advise D personally of:
1. Nature of charge;
2. critical elements of the offense;
3. maximum possible penalty and whether there are any mandatory minimum penalty
4. right to plead not guilty and that by pleading guilty, D waives right to a trial
Plea must appear on record
80
Ineffective Assistance of Counsel
D must prove that attorney's exercise of judgment and representation fell significantly below the reasonable standard of care and that D would not have been convicted BUT FOR ineffective assistance of counsel.
(analyze and discuss the elements of the crime and likelihood of success).
81
Right to Testify
Accused has a right to testify under 5th Amendment due process right to a fair trial.
An accused lawyer cannot prevent him from testifying
82
Right to Represent Self
On the request of the accused, court must determine whether:
1. The accused's request is knowing and intelligent (rational and factual understanding of the proceeding)
2. whether accused is competent to represent himself.
Even if court makes such a determination, court should appoint counsel to be present and be ready to assist the accused if needed and requested by the accused.
83
Double Jeopardy
Right to be free of being tried more than once for same crime.
Not the same offense if each crime requires proof of an additional element that the other crime does not require.
DOES NOT APPLY to separate sovereigns (different states; state v. federal prosecutions)
84
Exceptions to Double Jeopardy
1. Hung jury;
2. Mistrial;
3. Retrial (but NOT if attempted retrial is on more serious offense);
4. Breach of Plea Bargain
85
Duty to Retreat
Majority - no duty to retreat
Minority - retreat only if it can be done in complete safety but no retreat from home or business
86
Defenses to Crimes
1. Self Defense
2. Imperfect Self Defense
3. Defense of Others
4. Duress
5. Mistake of Fact
6. Intoxication
7. Insanity
