Criminal Law and Procedure

Question 1

Not guilty by reason of insanity defense (NGRI)

Answer 1

Most states that provide the NGRI defenses, limits the defense to a defendant who can show that, at the time of the charged crime, she suffered from a “severe mental disease or defect,” and that, as a result of that mental disease or defect, “she did not know that her conduct was wrong.”

States differ as to the definition of “wrong”
Some states provide the defense only if the defendants severe mental disease or defect prevented her from knowing that her acts were criminal. Other states provide the defense even if the defendant knew that her actions were legally wrong (against the law) but did not know that her actions were morally wrong. Finally, other states have not explained whether they dine “wrong” as legally or morally wrong.

Question 2

“depraved-heart” murder

Answer 2

in most jurisdictions, a person who recklessly causes the death of another can be charged with so-called “depraved-heart” murder if the person acted with “extreme indifference to the value of human life.”

(also includes reckless driving combined with intoxication or other aggravating factors.)

Question 3

Manslaughter

Answer 3

In most jurisdictions, a defendant whose conduct causes the death of another human being can be charged with manslaughter is the defendant acted with criminal negligence, which can include the criminally negligent operation of a motor vehicle.

Question 4

Criminal negligence

Answer 4

in some states, criminal negligence is present whenever a persons conduct creates a substantial risk of death and the defendants actions were a gross deviation from the standard of care that a reasonable person would have excersided in the same situation.

In other states, it is also necessary to prove that the defendant was aware of the fact that the conduct created a substantial risk of death.

Question 5

Affirmative defense of duress

Answer 5

The typical affirmative defense of duress excuses defendants from criminal liability if their conduct was committed “under the pressure of an unlawful threat from another human being to harm” the defendant. The unlawful threat must cause the defendant to reasonably believe that “the only way to avoid imminent death or serious bodily injury to himself or to another is to engage in coduct which violates the literal terms of the criminal law. The defendant must also prove that he engaged in the criminal behavior bc of the threat and not for some other reason.

Question 6

The Model Penal Code definition of duress

Answer 6

a threat such that a person of reasonable firmness would be unable to resist it.

Note: at common law and in most jurisdictions today, duress is not available as a defense to any kind of intentional homicide.

Question 7

Competence to stand trial -

In some jxs called fitness to stand trial

Answer 7

competence to stand trial is a legal requirement that refers to a defendants ability to participate in criminal proceedings.

Question 8

Competence to stand trial-

the Dusky test

In Drope v. Missouri

Answer 8

The Dusky test has two prongs: the defendant must have

1. sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and
2. a rational as well as factual understanding of the proceedings against him.

In Drope v. Missouri, the Supreme Court elaborated on the Dusky standard, clarifying that the defendant must be able “to assist in preparing his defense.” Assiting counsel also requires that a defendant be able to make decisions, including whether to go to trial or plead guilty. Whenever the defense can establish “bona fide doubt” regarding the defendants decision-making abilities, the court must hold a hearing to determine competence to stand trial. Once the D has made this preliminary showing, the burden of evaluating competency is placed on the courts and court-appointed experts.

Question 9

The M’Naghten Test

Answer 9

Under the M’Naghten for NGRI used in a majority of states, the defense must prove that, at the time of the offense:

1. the defendant suffered from a defect of reason, from disease of the mind, and
2. as a result of this mental disease or defect, the defendant at the time of the act did not know the nature and quality of the act, or that the act was wrong

The defense must prove the affirmative defense of NGRI by a preponderance of the evidence .

There has never been a comprehensive statutory or jurisprudential definition of “defect of reason” or “disease of the mind” however, for a court to find a defendant NGRI, the defendants mental defect or disease must be sufficiently severe to cause the consequences described in the second prong of the M’Naghten test.

Question 10

Double jeopardy

Answer 10

the protection against double jeopardy does not apply until jeopardy has “attached.” Therefore if a proceeding is terminated before a jeopardy has attached, the Double jeopardy Clause does not limit the prosecutions right to try the defendant for the same charge in a new proceeding.

In a case to be tried before a jury, jeopardy is deemed to attach when the jury has been selected and all its members have taken the oath.
In a case to be tried by a judge sitting without a jury jeopardy is deemed to attach when the first witness has been sworn in.

Question 11

Miranda warnings must be given when

Answer 11

a person is subjected to custodial interrogation. The test for whether a person is in custody is whether a reasonable person in his position would believe that he was not free to leave. For this test to be satisfied, it is not necessary that the person be formally informed that he is under arrest; even without such a notification, the circumstances may make it clear to the person that he is not free to leave.

Question 12

An grand jury indictment is valid on its face and it is not

Answer 12

is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence.

Question 13

Six general exceptions to the requirement of a search warrant:

Answer 13

the search is incident to:

1. a lawful custodial arrest;
2. the “automobile” exception (which requires probable cause that vehicle contains evidence of crime, and exigent circumstances);
3. plan view;
4. consent;
5. stop and frisk; and
6. hot pursuit/evanescent evidence

Question 14

This is how a search warrant is issued

Answer 14

a police officer submits a written, signed affidavit to a neutral, detached magistrate, who decides if there is probable cause to issue the warrant. The affidavit must set forth the underlying circumstances to a degree sufficient for the magistrate to determine probable cause. If the information is stale, it will defeat probable cause by diminishing the possibility that the items in question are still at the location.

Question 15

Standing to object to a search or seizure

Answer 15

a person only has standing to claim search or seizure violated the Fourth Amendment when the evidence was obtained from a search or seizure that violated the person’s own legitimate expectation of privacy.

Question 16

Immunized testimony

transactional immunity

Answer 16

D is immunized from the use of his testimony, or evidence derived from that testimony.

transactional immunity, under which, in general, the witness is immunized from prosecution for any crime related to the transaction to which the witness testifies

Question 17

Random vehicular stops

Answer 17

Are not permissible because such a system relies on the officers discretion in determining whom to stop, and the intrusion is great because the driver is likely to be anxious about being stopped at random.

Question 18

Businesses subject to extensive regulation

Answer 18

may be subjected to warrantless, unannounced searches, at least where frequent unannounced inspections are the only effective way to enforce the regulatory requirement.
(warrantless inspections of weapons dealers are constitutional)

Question 19

At common law, malice exists only if the D had any of the following mental states:

Answer 19

1. an intent to kill;
2. an intent to do serious bodily harm; or
3. a reckless indifference to the value of human life (depraved heart)

Question 20

Conviction on accomplice liability requires

Answer 20

the accomplices intent to aid, encourage, or assist the principal to commit the underlying crime

Question 21

Robbery

Answer 21

is the

1. taking;
2. of personal property of another;
3. from the others person or presence,
4. by force or intimidation;
5. with the intent to permanently deprive him of it

Question 22

Larceny

Answer 22

the 1. taking and

2. carrying away of
3. the tangible property
4. of another
5. by trespass or without consent,
6. with the intent to permanently deprive the person of his interest in property

Question 23

A person may use deadly force in self-defense if he

Answer 23

1. is confronted with unlawful force,
2. reasonably believes he is threatened with imminent death or great bodily harm, and
3. uses no grater force that he reasonably believes is required to avoid the danger

Question 24

Manslaughter with adequate provocation

Answer 24

if D:

i. acted in response to a provocation that would be sufficient to cause a reasonable person to lose self-control,
ii. he in fact acted in a “heat of passion,
iii. the lapse of time between the provocation and the killing was not great enough that a reasonable person would have “cooled off” and
iv. he had not in fact cooled off by the time he killed

Question 25

False pretenses

Answer 25

(1) a misrepresentation of a material fact, (2) which prompts the victim to pass title to his property to the D, (3) who knows the misrepresentation is false and (4)intends to defraud the victim

Question 26

Felony murder

Answer 26

is a killing, even an accidental one, committed during the commission of a dangerous felony..
BARRK

Question 27

Arson

Answer 27

1. malicious
2. burning
3. of the dwelling,
4. of another

malice for arson does not require a specific intent, but only that the D acted with either: (1) the intent or knowledge that the structure would burn, or (2) the reckless disregard of an obvious risk that the structure would burn

Question 28

Murder

Answer 28

the unlawful killing of another human being with malice aforethought

Question 29

Malice aforethought is deemed to exist if the D has any of the following states of mind:

Answer 29

1. intent to kill
2. intent to inflict great bodily harm,
3. a reckless indifference to an unjustifiably high risk to human life, or
4. the intent to commit a felony

Question 30

Involuntary manslaughter

Answer 30

death caused by gross negligence or recklessness

Question 31

voluntary manslaughter

Answer 31

an intent to kill or seriously injure under party extenuating circumstances (extreme provocation)

Question 32

M’Naghten rule

Answer 32

D has a diseased mind

Question 33

Solicitation

Answer 33

consist of inciting, inducing, or urging (requesting, encouraging, advising, or
commanding) another to commit a felony with the specific intent that the person solicited commit the crime

The offense is complete at the time the solicitation is made, whether the solicitee agree or not.

Question 34

Assault

Answer 34

is either:

1. an attempt to commit a battery, or
2. an intentional placing of another in apprehension of receiving an immediate battery.

Any complete battery contains an assault.

Question 35

The common law of attempt requires

Answer 35

that the defendant commit some act (beyond mere preparation) toward brining about the intended crime.

Question 36

Federal common law, case of Trammel v. Unites States, if the witness and the defendant are married at the time of trial

Answer 36

the witness cannot be placed in contempt for refusing to testify against the defendant. The rationale for the rule is to preserve marital harmony, which would otherwise be damages by one spouse testifying against the other

Question 37

To prove ineffective assistance of counsel, a defendant has to show that:

Answer 37

1. his lawyer’s representation fell below an “objective standard of reasonableness, and
2. there is a reasonable probability that but-for the ineffective assistance, the result would have been different.
   Strickland v. Washington

Question 38

Once the prosecution has met its burden of proof in its case in chief (proof beyond a reasonable doubt), the burden then

Answer 38

shifts to the defense to raise any affirmative defenses, by a preponderance of the evidence.

Question 39

Conspiracy

Answer 39

for a conspiracy to be formed, the following elements must be met: an agreement by two or more people to commit a crime, an overt act in furtherance of the crime (this is not required at common law, but some states require it) and the specific intent to enter into the agreement and achieve its purpose.

Solicitation merges with the crime of conspiracy, so a defendant cannot be convicted of solicitation and conspiracy

Question 40

Mistrial

Answer 40

if a mistrial occurs, the defendant can be re-tried for the same crime without any double jeopardy violation. A mistrial can occur if there is a manifest necessity. A manifest necessity results when there are circumstances like juror misconduct, and incurable pleading defect, or an essential witness is unavailable, which would make a fair result impossible

Question 41

When a suspect does not waive Miranda warnings, what do the courts consider in the requisitioning of a suspect

Answer 41

the courts consider the length of time for which the police ceased the questioning (the more time that has elapsed the better), whether the suspect was read his Miranda rights again, whether the police questioned the suspect about the same crime or a different crime, and whether the suspect initiated the discussion.

Question 42

Exigent circumstances created by police officers

Answer 42

the Supreme Court has decided that even when the officers are the ones who create the exigency( like knocking and announcing their presence), a warrantees entry is still justified.

Question 43

Can Corporations plead the Fifth Amendment against self-incrimination?

Answer 43

The Fifth Amendment right against self-incrimination has not been extended to corporations or entities

Question 44

Burglary

Answer 44

Burglary is defined as breaking and entering the dwelling of another
at night with the intent to commit a felony or larceny therein

Question 45

What is the rule for items not found in plain view through.a lawful entry

Answer 45

“The Supreme Court has held that the moving of an object inside a suspect’s home ‘unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of Defendant’s privacy unjustified by the . . . circumstance that validated the entry.”

when an officer lifts papers, he invades the persons’s privacy, and this intrusion is not supported by any exception to the warrant requirement.

Question 46

The standard for second-degree murder is:

Answer 46

reckless disregard for human life

Question 47

The standard for attempted murder at common law is

Answer 47

both mens rea (specific intent) and actus rea are required.

Question 48

Juvenile sentenced to life without parol

Answer 48

The Supreme Court has ruled that it is unconstitutional for a juvenile
convicted of a non-homicide offense to be sentenced to life without parole.

Question 49

Bilateral approach to conspiracy

Answer 49

Some jurisdictions follow the bilateral approach to conspiracy. Which requires that, to be convicted of conspiracy, there needs to be two guilty minds who want to achieve the objectives of the agreement.

If one party pretends to go along with it, and the real intention is to call the police, there is no guilty mind by the other party.

Question 50

What would be a defense for a charge under a federal statute prohibiting the knowing possession of a fire arm by a convicted felon

Answer 50

Specific circumstances involving temporary possession have been recognized as a valid justification in some jurisdictions

Question 51

Embezzlement

Answer 51

is the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come

Where someone in lawful possession of another’s property wrongfully misappropriates such property.

Although precise statutory definitions vary, embezzlement generally occurs when a person unlawfully converts property owned by another to his own use with the intent to permanently deprive the lawful owner of the property.

Question 52

Receiving stolen property typically has two elements

Answer 52

(1) the actus rea of the receipt of stolen property, and (2) the simultaneous mens Rea of knowledge that the property was stolen. Most jurisdictions include the further requirement that the defendant intended to deprive the owner of her property.

Question 53

“Stolen property” typically includes

Answer 53

property unlawfully obtained using larceny, embezzlement, or false pretenses, because it is inappropriate to make the liability of the receiver turn on the methods by which the original their acquired the property.

Question 54

Normally a person is not guilty of receiving stolen property unless

Answer 54

the person knew it was stolen “at the moment of receiving it.”
Some jx require proof of a defendant’s actual subjective knowledge that the property was stolen. In those jx, evidence that a reasonable person would have known that the property was stolen will not suffice.

Other jx, follow the modern view in which mens Rea can be inferred from all surrounding circumstances.

Question 55

After invocation of Miranda rights, counsel must be provided before a suspect can be questioned unless the suspect:

Answer 55

(1) initiates contact with law enforcement, (2) is given a fresh set of Miranda warnings, and (3) executes a knowing and intelligent waiver.

Question 56

In Maryland v. Shatzer, the Court held that cessation of custodial interrogation for:

Answer 56

14 days terminated the Edwards requirements. Thus, after 14 days, law enforcement may approach a suspect who has previously invoked the right to counsel and (assuming new Miranda warnings and a valid waiver) reinitiate custodial interrogation even without a lawyer present.

Question 57

In Maryland v. Shatzer, the Court held that there are “vast differences between Miranda custody and incarceration pursuant to conviction

Answer 57

the release of a person from interrogation and back into his “normal life” in the general prison population ends the “inherently compelling pressures” of custodial interrogation.

Question 58

Invocation of the right to counsel requires at a minimum

Answer 58

some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.

Question 59

To unambiguously request counsel

Answer 59

a suspect must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.

Question 60

Larceny by false pretenses

Answer 60

In most jx, the actus reus elements of false pretenses are (i) a false representation of material fact (ii) that causes another person to transfer title to property (including money) to the defendant.
The mens rea required is knowledge that the representation of fact is false and an intent to defraud.

The false representation must be one of fact, not opinion. Commercial puffery is not generally considered “false pretenses.”

Question 61

In most jx, a defendant is guilty of involuntary manslaughter when

The modern and majority view

Answer 61

the defendant causes the death of another human being by engaging in conduct that creates an unreasonable (or high and unreasonable) risk of death or serious bodily injury.

The modern and majority view is that the defendant must have acted “recklessly” to be convicted of involuntary manslaughter (i.e., the defendant must have been aware of the unreasonable (or unreasonable and high) risk of death or serious bodily injury that his conduct created)

Question 62

Recklessness is typically defined as

Answer 62

conscious disregard of a known risk.

In other jx, it is enough if the defendant acted with greater than ordinary negligence, which some sates call “gross,” “criminal,” or “culpable” negligence. In these states, even if the defendant was unaware of the risk, the defendant could be found guilty if an ordinary person in the defendant’s situation would have been aware that her conduct created an unreasonable (or unreasonable and high) risk of death or serious bodily injury.

Question 63

A defendant’s conduct is the cause in fact of the prohibited result

Answer 63

if the said result would not have occurred “but for” the defendant’s conduct.

Question 64

Proximate cause under the criminal law

Answer 64

Proximate cause under the criminal law is complex to define, but its core is foreseeability.

Question 65

The elements necessary to be found guilty of involuntary manslaughter on a theory of accomplice liability

Answer 65

The person must have assisted the defendant in the commission of the crime.

The person must have acted with dual intentions: (1) the intent to assist the primary party and (2) the intent that the primary party commit the offense charged.

In cases where the primary party’s crime is one involving recklessness or negligence, most jurisdictions hold that the second intent element is satisfied if the defendant intended to assist the primary party and otherwise acted with mens rea required for the underlying offense.

Even a small amount of assistance can suffice to create accomplice liability.

Question 66

To be convicted as an accomplice to involuntary manslaughter:

Answer 66

In most jurisdictions the defendant must have acted “recklessly” *he must have been aware of the unreasonable (or unreasonable and high) risk of death or serious bodily injury that his conduct created)

In some jx, the defendant can only be convicted if he demonstrated “gross,” “criminal,” or “culpable” negligence (if an ordinary person in his situation would have been aware that his conduct created an unreasonable (or unreasonable and high) risk of death or serious bodily injury).

In a few jx, the defendant cannot have accomplice liability for involuntary manslaughter as a matter of law. The courts reason that it is logically impossible for. a person to be an accomplice to a crime of recklessness or negligence because one cannot “intend” a negligent or reckless killing.

In most jx however, courts hold an accomplice responsible for a crime like manslaughter if the accomplice intentionally provided assistance to the principal and acted with recklessness or negligence, as the case may be, with respect to the risk that the principal’s behavior would cause death.

Question 67

Under the Fourth Amendment, the constitutional reasonableness of a traffic stop:

Answer 67

does not depend on the motivation of the officer involved or the petty nature of the offense charged, as long as state law permits an arrest.

If the officer has probable cause to believe that a suspect has committed an offense, then a stop and arrest of that suspect is reasonable if authorized under the applicable state statute.

Question 68

Under the Fourth Amendment, a police officer is lawfully permitted to seize evidence without a warrant if

Answer 68

the evidence is found in plain view during a lawful observation

Question 69

Plain view doctrine

Answer 69

if police 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 the object, they may seize it without a warrant.

Question 70

The lawful access requirement (to Plain view)

Answer 70

guards against warrantless entry onto premises whenever contraband is viewed from off the premises . . . but does not bar the seizure of evidence in a parked car” that is observed by an officer who is vowing contraband from a lawful vantage point.

Question 71

Miranda is a violation of a constitutional “rule” not a direct violation to the constitution

Answer 71

unlike direct violations of the constitution, Miranda violations do not taint derivative evidence and the “fruit of the poisonous tree” doctrine does not apply.

Question 72

In Oregon v. Elstad, the US Supreme Court held that, if a suspect was subjected to custodial interrogation without the benefit of Miranda warnings, a subsequent confession by the suspect my nonetheless be admitted if

Answer 72

the totality of circumstances establishes that the second statements was knowing and voluntary. Unless the police engage in an interrogation process that must “realistically be seen as part of a single unwarned sequence of questioning.” subsequent custodial interrogation following a break in the initial proceedings, Miranda warnings, and a waiver of rights is constitutional.

Question 73

Pursuant to Davis v. United States, if an arrestee makes an unambiguous and unequivocal request or demand for an attorney

Answer 73

the police must cease the interrogation and honor the request.

Question 74

Model Penal Code Section to conspiracy

Answer 74

MPC adopts a unilateral interpretation of conspiracy, defining conspiracy as requiring agreement by the defendant but not by two or more persons. In addition, many jx that require a bilateral conspiracy will allow conviction if one of the co-conspirators agreed to the crime but cannot be convicted based on lack of capacity or some other defense personal to the co-conspirator.