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Bar Exam > Criminal Law and Procedure > Flashcards

Criminal Law and Procedure Flashcards

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1
Q

Transferred Intent

A

D intended to produce the criminal result against one victim, but harmed another so the intent transfers to the actual victim

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2
Q

Substantial Factor

A

Multiple causes or parties were responsible, but the D’s act was a substantial factor in causing the criminal result

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3
Q

Acceleration

A

D’s conduct speeds up an inevitable death

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4
Q

Proximate Cause

A

The resulting harm is within the risk created by the D’s conduct in crimes involving negligence or recklessness, or sufficiently similar to that intended in crimes requiring intent.

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5
Q

Intervening Event

A

If the event is foreseeable, then it isn’t a superseding event and D is still liable. If the event is foreseeable then it is a superseding event and D is not liable.

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6
Q

Criminal Homicide

A

The unlawful killing of another human being

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7
Q

Murder

A

The unlawful killing of a human being with malice aforethought

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8
Q

Malice

A

Ways to establish:

  1. Intent to kill
  2. Intent to inflict serious bodily harm
  3. Depraved-Heart Murder: Unintended killing resulting from wanton disregard for human life
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9
Q

Felony Murder

A
  1. a murder
  2. proximately caused
  3. during the commission or attempted commission
  4. of a serious or inherently dangerous felony
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10
Q

Felony Murder Felonies

A 
Burglary
Arson 
Rape
Robbery
Kidnapping
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11
Q

Co-Felon Liability

A

Majority: felony murder liability is limited to a killing committed at the hand of a co-felon

Common Law: Attaches liability to all felons for any homicide during the felony

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12
Q

Non-Violent Felon

A

Minority rule that exempts from felony murder if co-felon was not armed and did not participate or have knowledge of co-felons’ intent

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13
Q

Deserving Victim

A

Minority rule that allows the killing of a co-felon

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14
Q

Redline Limitation

A

Police or victim kills a co-felon then felony murder liability is not imposed on co-felon

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15
Q

1st Degree Murder

A

D’s decision to kill was done with both premeditation and deliberation

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16
Q

2nd Degree Murder

A

Any murder not meeting the elements of 1st degree murder

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17
Q

Voluntary Manslaughter

A

Intentional killing mitigated by adequate provocation or other circumstance negating malice.

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18
Q

Involuntary Manslaughter

A

Unintentional killing resulting from unjustified risk creation (recklessness or gross negligence) that is not sufficiently extreme to rise to the level of implied malice

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19
Q

Recklessness

A

D subjectively aware of the risk and ignores it

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20
Q

Gross Negligence

A

D is unaware of the risk but a reasonable person would have been aware

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21
Q

Battery

A
  1. Unlawfully applies force
  2. Intentionally, recklessly, or as a result of criminal negligence
  3. Without legal justification

Can be elevated to an aggravated battery when D

  1. causes serious bodily harm
  2. uses a deadly weapon OR
  3. injures a special category of victim (i.e. cop or child)
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22
Q

Defenses to Battery

A
  1. consent
  2. self-defense and defense of others (proportional force required)
  3. prevention of crime (proportional force required)
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23
Q

Assault

A
  1. Failed attempted battery (proof that the D intended to actually batter a victim but failed)
  2. Fear of battery assault (D intended to put the victim in fear of an immediate battery. Reasonable apprehension required and is more expectation than fear)
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24
Q

False Imprisonment

A

Confinement of a person when it is intentional, against the law, and the victim is fully confined

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25
Q

Kidnapping

A

Modern Law:

  1. abducts or steals away a person
  2. without lawful authority or warrant AND
  3. holds that person against his will

Common Law: Unlawful restraint of a person’s liberty by force or show of force so as to send the victim into another county

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26
Q

Rape

A

Sexual intercourse against a victim’s will by force, threat, or intimidation. (mistake can be a defense if it is honest and reasonable)

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27
Q

Larceny

A

Unlawful taking of property in someone else’s possession with the intent to steal

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28
Q

Embezzlement

A

Unlawful conversion of the tangible personal property of another already in the D’s lawful possession with the intent to steal.

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29
Q

Robbery

A
  1. Larceny accomplished by force or threat of force.
  2. Intent to steal. Honest mistaken belief of right negates the intent to steal.
  3. Taking from the victim’s person or presence
  4. Victim must be actual fear at the time of the taking
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30
Q

Theft by False Pretenses

A
  1. false representation of a present or past material fact by D
  2. which causes victim to pass title to their property
  3. to the D
  4. who knows that the representation is false
  5. who intends thereby to defraud the victim
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31
Q

Larceny by Trick

A

Obtaining possession (not title) through fraud, with the intent to steal.

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32
Q

Extortion

A

Obtaining property of another by threat of future harm to the victim or their property

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33
Q

Receiving Stolen Property

A

Receipt of stolen property, known to be stolen, with the intent to permanently deprive

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34
Q

Forgery

A

Fraudulently making a false writing with the apparent legal significance with the intent to make wrongful use of the document. Alteration must be material.

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35
Q

Burglary

A
  1. breaking
  2. entering
  3. structure of another
  4. with the intent to commit a felony or theft offense
36
Q

Arson

A
  1. Malicious burning of property

2. Malice established by intent or result of extreme recklessness

37
Q

Solicitation

A

Enticing, advising, inciting, inducing, urging, or otherwise encouraging another to commit the target offense. If the offense is committed, then the solicitation merges into the offense and the solicitor is charges as an accomplice and not with solicitation.

38
Q

Attempt

A
  1. Specific intent or purpose to bring about the criminal result AND
  2. A significant overt act in furtherance
39
Q

Defense to Attempt

A
  1. Abandonment (voluntary and complete abandonment)
  2. Legal impossibility (not guilty if D thought they were committing a crime but act wasn’t a crime)
  3. Factual impossibility (guilty of attempt if D would have committed the offense had the facts been as they believed them to be)
40
Q

Conspiracy

A

Agreement to create an unlawful criminal combination between two or more persons with the intent to agree and the specific intent to commit an unlawful act

41
Q

Pinkerton Rule

A

Co-conspirators are liable for the crimes of all other co-conspirators were the crimes were foreseeable as part of the conspiracy and committed in furtherance of the conspiracy.

42
Q

Defense to Conspiracy

A
  1. Withdrawal (complete and voluntary withdrawal and notice to all conspirators)
  2. Renunciation (withdrawal plus an affirmative act to thwart conspiracy)
43
Q

Accomplice

A

D commits some act that facilitates the principal’s commission of a crime, including encouragement with the purpose of bringing about the commission of the crime. D can be charged as if they were the principal.

44
Q

Defenses to Accomplice

A

Common Law: Withdraw by giving the principal timely notice and nullifying any effect of any prior facilitation.

MPC: Render prior assistance completely ineffective, provide cops with timely warning of the plan, or make a proper effort to prevent the perpetrator from committing the crime

45
Q

Insanity

A

If D was legally insane at the time of his criminal act, no criminal liability will be imposed

46
Q

M’Naghten Test

A

At the time of commission:

  1. D suffered from a severe mental disease or defect AND
  2. As a result D was unable to know the nature and quality of his act or that what he was doing was wrong
47
Q

Irresistible Impulse Test

A

D will not be guilty when they had a mental disease that kept him from controlling his conduct

48
Q

MPC Test

A

At the time of such conduct and as a result of a mental disease or defect, he lacked the substantial capacity to appreciate the criminality of his conduct or to conform to the requirement of law

49
Q

Durham (New Hampshire) Rule

A

D not liable if the unlawful act was the product of a mental disease or defect (i.e. crime would not have been committed but for the mental disease)

50
Q

Intoxication

A

Involuntary: Will be a defense to any crime requiring proof of general or specific intent so long as it negates the requisite mens rea

Voluntary: May negate mens rea but not a defense to general intent crimes, recklessness, negligence, or strict liability

51
Q

Duress

A

Excuses criminal conduct where the D reasonably believes that the only way to avoid an unlawful threat of great bodily harm or imminent death is to engage in unlawful conduct. Not a defense to murder, unless to excuse felony murder.

52
Q

Self-Defense

A

Honest and reasonable judgment that it is necessary to use force to defense against an unlawful, imminent threat of bodily harm. Must use proportionate force.

53
Q

Homicidal Self-Defense

A

Deadly force in self-defense is only permitted in response to an imminent threat of death or grievous bodily harm. Initial aggressor cannot claim self-defense.

54
Q

Retreat Rule

A

Victim of unlawful violence has the duty to retreat before use of deadly force. Not required in the D’s home, car, or office and not if retreat is not feasible.

55
Q

Defense of Others

A

Force is justified when necessary to defend a third party who is facing an unlawful imminent threat of bodily harm. Use of deadly force is only justified when there is a threat of death or grievous bodily harm.

56
Q

Defense of Property

A

Reasonable, non-deadly force is justified in defending property from theft, destruction, or trespass where the D had a reasonable belief that their property is in immediate danger and no force greater than necessary is used

57
Q

Necessity

A
  1. it is necessary to avoid an immediate threat of greater harm to person or property
  2. there is no reasonable alternative to breaking the law to avoid greater harm AND
  3. D is not responsible for causing the harm
58
Q

Seizure

A

A reasonable person in D’s position would not feel free to leave or terminate a police encounter. Police need to use physical force OR a showing of authority followed by submission.

59
Q

Terry Stop

A

Brief investigatory seizure. Permissible duration is the time necessary to confirm a reasonable suspicion that a crime has occurred, if so police have probable cause.

60
Q

Reasonable Expectation of Privacy

A
  1. D manifests a subjective expectation of privacy by making an effort to shield the think or activity from the public AND
  2. the expectation is objectively reasonable because it is an expectation society is willing to recognize
61
Q

Reasonable Search or Seizure

A

A warrant creates a presumption of reasonableness. D bears the burden of rebutting this presumption by proving

  1. warrant wasn’t based on valid probable cause
  2. the magistrate was not neutral or detached OR
  3. warrant failed to describe with particularity the thing being seized or searched
62
Q

Probable Cause

A

Facts and circumstances that would make a reasonable person conclude that the individual in question has committed a crime or that a specific item related to criminal activity can be found at a particular location

63
Q

Informant

A

Reliability is determined by

  1. veracity of the informant
  2. basis of their knowledge
  3. police investigation that corroborates the facts in the tip and validates the accuracy of the informant’s predictions
64
Q

Reasonable Suspicion

A

Belief based upon articulatable information used by a reasonable person or cop that the suspect has or is about the engage in illegal or criminal activity. Justifies terry stop or cursory protective search.

65
Q

Plain View

A
  1. the police are in a lawful vantage point to observe the item
  2. it is immediately apparent that the item is contraband AND
  3. the officer has lawful access to the point of seizure
66
Q

Exigent Circumstance

A

A warrantless search is permissible when waiting to obtain a warrant would result in the imminent destruction of evidence, escape of the accused, or risk to police or others in the area.

67
Q

Search Incident to Lawful Arrest

A

Upon a lawful arrest, police can automatically search the arrestee and the area within their immediate control

68
Q

Automobile Exception

A

Police can search a car with probable cause. Applies to all containers within the car where the item could be found for which probable cause exists.

69
Q

Third-Party Consent

A

Any person with joint control of the premises may consent to a valid search to common areas, but not within the within D’s exclusive control

70
Q

Check Points

A
  1. Primary purpose must be need to search or seize to protect public from immediate danger
  2. Stop or seizure must be based on a fix formula, narrowly tailored to address specific threat, and conducted in an area that minimizes citizen anxiety
  3. Can seize contraband in plain view
71
Q

Boarder Exception

A

With no suspicion or cause customs officials may

  1. stop cars at permanent checkpoints and
  2. conduct routine searches of people and property
72
Q

Terry Search (Frisk)

A

Police may conduct a cursory protective search for weapons or some other instrumentality that creates imminent danger to officer or others in close proximity. Requires reasonable suspicion that suspect is armed and dangerous and limited to outer clothing.

73
Q

Plaint Touch

A

If office immediately feels something and knows what it is after patting down the suspect they can seize it without a warrant.

74
Q

Standing

A

D must show that an unreasonable search or seizure intruded on their personal constitutional rights.

  1. they have ownership or possessory interest in the place searches or item seized
  2. they are unreasonable seized by police OR
  3. they are an overnight social guest at someone’s house
75
Q

Fruit of the Poisonous Tree Doctrine

A

Any additional evidence derived from initial illegality falls within the scope of the exclusionary rule and is tainted fruit of the poisonous tree.

Exceptions:
1. Independent source
2. Inevitable discovery
3. Attenuation (evidence is so distant from the initial illegality that the poison taint is purged)
4, Impeachment (tainted evidence can be used to impeach)
5. Good-Faith (police act in good faith on a warrant that is bad)

76
Q

Use/Testimonial Immunity

A

Prohibits use of a witness’s testimony or any evidence derived from that testimony against that witness

77
Q

Transactional Immunity

A

Prohibits any future prosecution of the witness for the transaction that is the subject of the testimony

78
Q

Miranda Rule

A

Miranda warnings are triggered by custody and interrogation

79
Q

Re-Initiate Questioning

A

Right to Remain Silent: Police must allow for a significant time to elapse and then obtain a new Miranda waiver

Right to Counsel: Police cannot resume questioning until counsel is present, D re-initiates contact with police and executes a new waiver, OR 2 weeks of have passed since D returned to normal environment

80
Q

Identification Procedure

A

Inadmissible if D can prove:

  1. police procedure was unnecessarily suggestive AND
  2. that suggestiveness produced an unreliable identification

Out-of-court corporeal ID: D cannot be subjected to it without counsel present or a knowing and voluntary waiver

81
Q

Bail Hearing

A

D is entitled to an individualized hearing. No constitutional right to bail, but it must not be excessive if imposed.

82
Q

Plea Bargaining

A

Plea must be knowing, voluntary, and intelligent

83
Q

Speedy Trial

A

Clock begins once D is accused by formal charge or arrested. Only remedy for violation is dismissal with prejudice. Unreasonable delay must result in prejudice to the D.

84
Q

Discovery

A

If prosecution fails to disclose favorable evidence, the D is entitled to a new trial. If D makes a discovery request, any evidence that would help the defense must be disclosed but if no discovery request is made then only evidence that is clearly exculpatory must be disclosed.

Not required to disclose for plea bargaining

85
Q

Ineffective Assistance of Counsel

A

D must prove:

  1. counsel was ineffective (below minimum standard of lawyer conduct) AND
  2. Had lawyer been effective, it would have created a reasonable probability that the outcome would have been different
86
Q

Right to Jury Trial

A

Right attached if D faces a potential sentence of more than 6 months in jail.

87
Q

Double Jeopardy

A

Requires two crimes occurring out of the same transaction being tried twice by the same sovereign.

Jeopardy attaches:

  1. in a non-jury trial when the first witness is sworn and the court begins to hear evidence
  2. in a jury trial when the jury is impaneled and sworn

Bar Exam (21 decks)

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