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BAR EXAM > Criminal Law and Procedure - MBE > Flashcards

Criminal Law and Procedure - MBE Flashcards

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1
Q

4th:

Police knock on the door of a house. Someone answers, claims to be the owner, consents to a search of the house. If it later turns out that person was NOT the owner, was the search invalid?

A
  • No, as long as the police REASONABLY believed that was a person with authority to give consent.
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2
Q

4th:

Mother consents to a search of her house. Police enter son’s bedroom and force open a locked chest (only the son has a key to it), which has drugs in it. Was the search valid?

A

No. Consent does cover the whole house, including the son’s room, but does NOT include things to which he had EXCLUSIVE RIGHT OF USE AND ACCESS.

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3
Q

A receives a coat from B. B stole the coat, but A didn’t know that at the time. A finds out later that it was stolen, decides to keep it anyway.
Guilty of any crimes?

A

No. Receiving stolen property would be the closest, but that requires D to know the property was stolen AT THE TIME it was received.

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4
Q

5th A:

Can a defendant’s grand jury testimony be used against him? Would this violate the defendant’s right against self-incrimination?

A

Yes. D can testify as a “suspect witness” at the grand jury, thus waiving the privilege. D should have refused to answer any incriminating questions.

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5
Q

4th:

Who can consent to officers searching a house?
If they find anything, who can that evidence be used against?

A
  • Any person with equal right to use or occupy (could be spouse, girlfriend, roommate, etc.)
  • Any of the other owners or occupiers, not just the person who consented

*REMEMBER that if the police are wrong about a person’s authority to consent to search of a home, the evidence won’t be excluded as long as the cops REASONABLY BELIEVED the person had authority.

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6
Q

4th:

Can a probation officer stop by a probationer’s house unannounced and search the house?

A

Yes, IF a state statute authorizes it. A probationer has a diminished expectation of privacy and the government has a heightened need for searching probationers.

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7
Q

Homicide:

Jury instruction:
“If you find beyond a reasonable doubt that defendant intentionally killed with malice aforethought, he is guilty of murder. However, if the defendant shows by a preponderance of the evidence that he was adequately provoked, then he is only guilty of voluntary manslaughter.”

What’s wrong with this instruction?

A

It places the burden of proving voluntary manslaughter on the defendant. The state must prove every element of a crime beyond a reasonable doubt.

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8
Q

4th:

What is the rule for a search by a school official?

A

Need reasonable grounds to believe the search is necessary, which means:
- MODERATE CHANCE of finding evidence of wrongdoing
- the measures adopted are reasonably related to the objectives of the search
AND
- the search isn’t EXCESSIVELY INTRUSIVE, in light of the student’s age and sex

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9
Q

6th A:

A and B are in a joint trial as co-defendants. They each confess, implicating the other. But at trial, B takes back his confession. Can A’s testimony be admitted implicate B?

A

Generally, no. B has a right to confront an adverse witness, but A is not taking the stand—they’re just trying to bring in his confession.

But it will likely come in through an EXCEPTION:
- All portions of the statement referring to defendant are redacted
AND EITHER
- The confessing defendant takes the stand
OR
- The confession is being used only to rebut a claim of coercion, and the judge includes a limiting instruction to that effect

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10
Q

Is it possible to commit larceny of your own property?

A

Yes, if the person you took it from had a superior right to possess the property, e.g. when you leave your car with the mechanic, he has a right to keep it until you pay him.

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11
Q

Which inchoate crimes merge with the offense?

A

All but CONSPIRACY

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12
Q

What is the intent requirement for each of these offenses?

  • Solicitation
  • Attempt
  • Conspiracy
  • First degree premeditated murder
  • Assault
  • Larceny and robbery
  • Burglary
  • False pretenses
  • Embezzlement
A
  • Intent to have the person commit the crime
  • Intent to complete the crime
  • Intent to complete the conspiracy (crime)
  • Intent to kill
  • Intent to commit a battery
  • Intent to permanently deprive
  • Intent to commit a felony in the dwelling
  • Intent to defraud
  • Intent to defraud
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13
Q

Which crimes traditionally require malice?

A
  • Murder

- Arson

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14
Q

Accomplice liability:

What’s the difference b/w accomplice liability and accessory-after-the-fact?

A

TIMING:

Accomplice liability = D aids or encourages the principal to commit the crime. D will be liable for the underlying crime.

AAF = D aids the principal’s escape AFTER the crime was committed. D will only be liable for the narrow crime of “accessory after the fact”—not the underlying crime.

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15
Q

Accomplice liability:

Store owner sells guns to a criminal who intends to use them right afterwards to rob a bank. Is the store owner an accomplice?

A

Only if the store owner appears to have a STAKE IN THE VENTURE, e.g. can tell what the buyer is planning and decides to change the price accordingly. MERE KNOWLEDGE of the buyer’s plans with nothing more is not enough.

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16
Q

Accomplice liability:

What is the scope of the accomplice’s liability?

A

ONLY guilty of crimes he actually committed or furthered, and any FORESEEABLE crimes the principal committed

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17
Q

Accomplice liability:

Does it matter that the principal is incapable of completing the crime D encouraged?

A

No—D is still liable

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18
Q

Accomplice liability:

Is withdrawal a valid defense?

A

ONLY IF withdrew BEFORE the crime became unstoppable

  • Repudiation is sufficient if all he did was encourage
  • Must attempt to neutralize if D’s participation went beyond mere encouragement (have to try to stop what you set in motion)
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19
Q

Inchoate:

Are withdrawal or abandonment valid defenses to solicitation?

A

No—solicitation is complete as soon as the person solicits the crime, so there’s not really a chance to abandon or withdraw

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20
Q

Inchoate:

Can D still be liable for solicitation if the person rejects the solicitation immediately?

A

Yes

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21
Q

Inchoate:

What are the elements for conspiracy?

A

Common law elements:

  • Agreement (two or more persons)
  • Intent to enter into the agreement
  • Intent to complete the objective
  • Modern statutes usually include:
  • Overt act (even mere preparation)
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22
Q

Inchoate:

What’s the diff b/w unilateral and bilateral approach re conspiracy? Why does this matter?

Which one is the “common law” rule?

A

Unilateral—only need one guilty mind
Bilateral—need two

Under the unilateral approach, a person can be guilty of conspiracy even if the only other co-conspirator was an undercover police officer

Bilateral

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23
Q

Inchoate:

What is the Wharton rule re conspiracy?

A

If 2+ people are necessary to commit the crime, then there is no conspiracy unless MORE than the necessary parties are involved

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24
Q

Inchoate:

What if all co-conspirators have been acquitted except for one guy—can he be guilty of conspiracy?

A

No—can’t have a “conspiracy of one”

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25
Q

Inchoate:

What is the scope of a conspirator’s liability re crimes committed by co-conspirators?

A

GUILTY if the crimes were:

  • In furtherance of the conspiracy
  • Foreseeable
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26
Q

Inchoate:

Is withdrawal a defense to conspiracy?

A

Generally no—the crime is complete as soon as there’s an agreement and an overt act, which usually happens very quickly.

*BUT withdrawal IS a defense for crimes committed by co-conspirators after the withdrawal.

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27
Q

Inchoate:

Attempt and conspiracy both require an overt act. Are they the same?

A

NO
Attempt&raquo_space;> “substantial step” (beyond mere preparation)
Conspiracy&raquo_space;> includes mere preparation

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28
Q

Inchoate:

Is abandonment a valid defense for attempt?

A

Generally no—attempt is completed too quickly to back out of it

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29
Q

Defenses:

What is the M’Naghten rule?

A

D lacked the ability to understand:
- Wrongfulness
OR
- Nature and quality of his actions

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30
Q

Defenses:

What is MPC rule for insanity?

A

D lacked the ability to:
- Appreciate criminality
OR
- Conform his conduct to the law (includes the irresistible impulse test)

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31
Q

Defenses:

What is the burden of proof for insanity?

A

Most states&raquo_space;> preponderance
Some states&raquo_space;> beyond a reasonable doubt
FEDERAL COURT&raquo_space;> clear and convincing

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32
Q

Defenses:

When is intoxication a valid defense?

A

INVOLUNTARY:
- For basically any crime (treated like insanity)

VOLUNTARY:

  • ONLY for specific intent, if intoxication negates the specific intent
  • This will NOT work if D formed the intent and THEN got drunk to help himself carry out the crime.
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33
Q

Defenses:

When is non-deadly force appropriate to retrieve stolen property?

A

ONLY IF imminent pursuit

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34
Q

Defenses:

When is deadly or non-deadly force appropriate to prevent the victim from committing a crime? (not a police officer)

A

DEADLY FORCE:
- Dangerous felony, risk to human life

NON-DEADLY FORCE:
- Felony or serious breach of the peace

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35
Q

Defenses:

When is deadly or non-deadly force appropriate to effectuate an arrest?

  • Police officer
  • Private citizen
A

POLICE:

  • DEADLY FORCE&raquo_space;> to prevent felon’s escape AND felon threatens death or serious bodily harm
  • NON-DEADLY FORCE&raquo_space;> whenever reasonably necessary to effectuate the arrest

PRIVATE CITIZEN:

  • DEADLY FORCE&raquo_space;> (1) if summoned to help a police officer (they then have the same authority as the officer); (2) person being arrested actually committed the crime, and use of non-deadly force would have been appropriate (i.e. the citizen was right that the person committed the crime)
  • NON-DEADLY FORCE&raquo_space;> a crime was committed, and the citizen has reasonable grounds to believe the person they are arresting committed the crime
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36
Q

Defenses:

When is deadly or non-deadly force appropriate to resist arrest?

A

DEADLY FORCE:
- Improper arrest
AND
- Person does not know they are being arrested by an actual police officer

NON-DEADLY FORCE:
- Improper arrest

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37
Q

Defenses:

A tells B that he will kill B unless B kills C. If B kills C to avoid his own death, can B rely on the defense of duress?

A

No—duress is NOT a defense to homicide

one life isn’t more impt than another

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38
Q

Defense:

What are the elements for entrapment?

A
  • Criminal design originated with the police officer(s)

- The defendant was NOT predisposed to commit the crime

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39
Q

Homicide:

What are the “dangerous” felonies that give rise to the felony murder rule?

A

BARRK

  • Burglary
  • Arson
  • Robbery
  • Rape
  • Kidnapping
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40
Q

Homicide:

What are the levels of manslaughter?

A
  • Voluntary (intentional killing, provoked)
  • Involuntary (criminal negligence)
  • Misdemeanor manslaughter (death in connection with assault or batter)—only in a minority of jdx’s
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41
Q

Homicide:

When is malice aforethought satisfied?

A
  • Intent to kill (including premeditated)
  • Intent to inflict serious bodily injury
  • Intent to commit a dangerous felony
  • Depraved heart
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42
Q

Homicide:

What is the “imperfect self-defense” doctrine?

A

In some states, murder may be reduced to manslaughter if the defendant acted in “self defense” but didn’t really meet the elements for that defense, e.g.:

  • D was the aggressor
  • D unreasonably—but honestly—believed deadly force was necessary
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43
Q

Homicide:

If D can negate an element of the underlying felony, can D still be convicted of murder under the felony-murder rule?

A

No—acquittal of the underlying felony = acquittal of murder

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44
Q

Homicide:

What is the agency rule for felony murder?

A

D is only responsible for crimes that he or one of his accomplices commits

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45
Q

Homicide:

D commits a dangerous felony, then flees. Someone dies some time after D fled. What would have to be true for D to not be convicted of felony murder?

A

D must have fled to the point that he reached a place of “temporary safety”—this cuts the chain of causation between the felony and the resulting murder

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46
Q

Property offenses:

What are the elements of larceny?

Which tweak makes it “larceny by trick?”

A
  • Taking
  • Carrying away
  • Property of another
  • By trespass (without consent, or induced by fraud)
  • Intent to PERMANENTLY DEPRIVE

Larceny by trick = the “trespass” element is accomplished by defrauding the person who possesses the property

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47
Q

Property offenses:

Can someone commit larceny of their own property?

A

YES, if the person who had the property had a superior right of possession.

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48
Q

Property offenses:

D works for Wal-Mart. Steals a TV from work one day. Is he guilty of larceny or embezzlement?

A

Larceny—he doesn’t “possess” the property of Wal-Mart just because he works there. He only has temporary “custody” of the goods in the store while he’s working.

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49
Q

Property offenses:

What are the elements of embezzlement?

A
  • Fraudulent
  • Conversion
  • Of property
  • Of another
  • By a person IN LAWFUL POSSESSION of the property
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50
Q

Property offenses:

What are the elements of false pretenses?

A
  • Obtaining TITLE (not super formal—this just means the victim agrees to give something that they own over to the defendant, who will now be the new owner)
  • To property of another
  • By false statement
  • Intent to DEFRAUD
51
Q

Property offenses:

What’s the difference between larceny by trick and false pretenses?

A

FP means defrauding someone with TITLE to property.

LBT means defrauding someone with CUSTODY of the property.

52
Q

Property offenses:

What are the elements of receiving stolen property?

A
  • Receiving (getting it from someone else)
  • Stolen property
  • Knowing the property is stolen when you receive it
  • Intent to permanently deprive
53
Q

Property offenses:

A steals B’s laptop, intends to sell it to C, who knows it’s stolen. Police arrest A and recover the laptop. With B’s permission, an undercover officer meets with C and sells him the laptop. What crime has C committed?

A

NOT receiving stolen property—it wasn’t “stolen” when C received it. The police have already recovered it and are using it with the owner’s permission.

Guilty of ATTEMPTED receiving stolen property—C intended to commit the crime. It was factually impossible to commit the crime because the property wasn’t actually stolen, but factual impossibility is not a defense to attempt.

54
Q

Inchoate:

Is factual or legal impossibility a defense to attempt?

A

LEGAL&raquo_space;> Yes. This means that, if all of the circumstances were as D believed them to be, it wouldn’t be a crime.

FACTUAL&raquo_space;> NO. This means that, if all of the circumstances were as D believed them to be, it WOULD be a crime.

55
Q

Offenses against habitation:

What are the common-law elements of burglary?

A
  • B&E
  • Of dwelling of another
  • At night
  • Intent to commit a felony therein
56
Q

Offenses against habitation:

What are the common-law elements of arson?

A
  • Malicious
  • Burning
  • Of the dwelling of another
57
Q

4th:

Do police generally need a warrant to arrest someone in:

  • Their home
  • A public place?
A
  • Yes

- No—but they do need PROBABLE CAUSE to arrest in a public place

58
Q

4th:

What is required for a valid stop and frisk?

A

STOP:

  • Reasonable individualized suspicion of criminal activity
  • Based on articulable facts

FRISK:

  • During a stop
  • Reasonable individualized suspicion that D is armed and dangerous
  • May frisk for WEAPONS ONLY
59
Q

4th:

What is required for the police to stop (not search) a car?

A

GENERALLY: reasonable individualized suspicion that a law has been violated

EXCEPTIONS:
- Roadblocks—IF (i) neutral, articulable standard, (ii) designed to serve purposes closely related to a particular problem pertaining to automobiles (e.g. a roadblock to test drivers for drunk driving)

60
Q

4th:

Do the passengers of a car have standing to challenge a wrongful stop? What if he orders them to step out of the car?

A

Yes to both—the stop of the car constitutes a seizure of the car AND everyone in it. The officer can order everyone in the car to get out.

(This also provides an opportunity to frisk if he reasonably suspects the passengers are armed and dangerous.)

61
Q

4th:

What is a “pretextual stop”—is it valid?

A

If an officer executes a valid vehicle stop (has reasonable suspicion that a law was violated), he investigate for other, unrelated crimes for which he doesn’t have reasonable suspicion—even if this was his ulterior motive all along.

62
Q

4th:

Officers suspect that A has drugs in his home, but they don’t have a warrant to search the home yet. They are afraid A will destroy the drugs as soon as he gets inside—can they detain him to keep him from going into the home while they get a warrant?

A

Yes

63
Q

4th:

Police have a warrant to search the premises. Does this authorize them to detain occupants of the premises?

A

Yes

64
Q

4th:

Do officers need reasonable suspicion or probable cause to bring someone into the station for fingerprinting and questioning?

A

Probable cause

65
Q

4th:

An officer’s use of deadly force to apprehend a suspect constitutes a seizure. When can deadly force be used?

A

If reasonable under the circumstances—e.g. suspect poses a danger to his own life or the lives of others

66
Q

4th:

What’s the basic analytical framework for a SEARCH?

A

1) Does D have a reasonable expectation of privacy?

2) Did gov’t have a valid warrant?
- Issued by a neutral and detached magistrate
- Probable cause
- Reasonably precise description (place to be searched, items to be seized)

3) If no warrant, does the search fall into one of the exceptions?

67
Q

4th:

Police need a WARRANT to search UNLESS:

A
  • Incident to a constitutional arrest
  • Automobile search
  • Plain view
  • Consent
  • Stop and frisk
  • Hot pursuit, evanescent evidence, emergency aid
68
Q

4th:

What is the test for determining whether someone has a reasonable expectation of privacy?

A
  • Totality of the circumstances

Some conclusive examples:

DOES have expectation of privacy:

  • Land, D owns or has right of possession
  • D’s home (even if he’s not technically the owner and doesn’t have a right of possession)
  • Curtilage of home
  • D is an overnight guest of the place to be searched

DOES NOT have expectation of privacy:

  • Rural home, open field (everything but the curtilage)
  • Garbage left for collection
  • View from a public place (e.g. the street, or above from a helicopter)
  • Smell of one’s car or luggage
69
Q

4th:

What is required for a valid warrant?

A
  • Probable cause (supported by affidavit)
  • Reasonably precise on its face (place to be searched, items to be seized)
  • Issued by neutral and detached magistrate
70
Q

4th:

If the police are relying on an informant for probable cause, what is the test for evaluating the informant?

A

Totality of the circumstances

  • Should be reliable and credible, but not dispositive
  • Identity is not necessary
71
Q

4th:

What are the grounds for challenging an affidavit supporting a warrant?

A
  • False statement by the officer
  • Intentionally or recklessly included the false statement
    AND
  • Material to finding of probable cause
72
Q

4th:

Police rely in good faith on a facially valid warrant to conduct a search. D challenges probable cause in the warrant and prevails. Is the evidence inadmissible?

A

No, good faith reliance on a facially valid warrant

73
Q

4th:

Police execute on a valid warrant. They arrive at the location and barge through the door and obtain evidence. Is the evidence admissible even though they didn’t knock and announce their purpose before entering?

A

Yes—they’re supposed to do this, but a violation of that rule doesn’t render the evidence inadmissible

74
Q

4th:

Officers properly arrest the driver of a car. Can they search the rest of the car? Can they search the trunk?

A

Yes. This is a search incident to an arrest. So, it’s limited to a search of the person, and anything within their immediate wingspan.

BUT the arrestee must be UNSECURED and still able to gain access to the interior of the vehicle, or they can’t search the rest of the car.
»> EXCEPTION: can search the car anyway to look for evidence related to the specific crime for which the person was arrested

*Can NEVER search the trunk under this exception—it’s never within the arrestee’s wingspan, so you can’t search it incident to the arrest. Need some other basis for looking in the trunk—the automobile exception would apply if there is probable cause of contraband/evidence in the trunk.

EXPLANATION:
The search incident to arrest has special application within a car, because a person’s wingspan could include the rest of the car (e.g. a driver can reach the passenger compartment, so if they’re arresting the driver, they can search the passenger compartment). BUT the police can’t search the car if the person has been detained in the squad car—then, there’s nothing IN THE CAR within that person’s wingspan. So, the search incident to arrest is limited to cases in which the arrestee is UNSECURED in the car still.

75
Q

4th:

Officers properly arrest D. Can they look up phone calls and phone numbers on D’s cell phone?

A

No

They can examine the physical aspects of the phone, but not the digital aspects

76
Q

4th:

What’s inventory search?

A

If police arrest someone, they can make an inventory search of the person’s belongings, including impounding the car—IF in accordance with an established department procedure.

77
Q

4th:

What is the automobile exception?

A

If officers have PROBABLE CAUSE that a vehicle contains contraband or evidence of a crime, they can search anywhere in the vehicle they might find the contraband/evidence. They DO NOT NEED A WARRANT.

They can even tow the car to the station to search it there instead.

If the car itself is contraband of a crime, they can tow the car away from a public place without a warrant.

78
Q

4th:

While conducting a search under the automobile exception, the cops search the passenger’s luggage but not the driver’s. Is this permissible?

A

Yes—the search extends to packages belonging to the passenger as well as the driver

79
Q

4th:

Police have probable cause to believe that a suitcase placed in the trunk of a car has evidence of a crime. Can they stop the driver, search the luggage, and then search the rest of the car?

A
  • Stop—yes, they have reasonable suspicion of a crime
  • Search of the luggage—yes, they don’t need a warrant because they can rely on the automobile exception
  • Search of the rest of the car—NO. If probable cause is based on a container they know is in the car, they can only search that container.
80
Q

4th:

What are the elements of the plain view exception?

A
  • Legitimately on the premises
  • Discover evidence, contraband, etc.
  • They saw it in plain view (can’t
  • They have probable cause to believe it’s evidence of a crime, or contraband, etc.
81
Q

4th:

Can officers search a house if one co-occupant consents, but the other doesn’t?

A

NO

If the objecting co-occupant leaves, they can search it then.

82
Q

4th:

During a valid frisk, the officer reaches into D’s pocket and pulls out a gun. The gun is inadmissible unless _____.

A

The officer felt the gun during the pat-down, and it plainly felt like a gun.

“Plain feel” exception

83
Q

4th:

Do officers in hot pursuit of a criminal need a warrant (or probable cause) to enter a dwelling where the person fled?

A

No—hot pursuit exception

84
Q

4th:

Does the automobile exception require reasonable suspicion or probable cause?

A

PC

85
Q

4th:

Does the plain view exception require reasonable suspicion or probable cause?

A

PC

86
Q

4th:

Does the Terry stop/frisk exception require reasonable suspicion or probable cause?

A

RS

87
Q

4th:

If officers have probable cause to stop a vehicle and search it (auto exception), can they search containers within the car? Can they search the trunk?

A
  • Yes—but ONLY containers that could possibly have the evidence they are expecting to find (e.g. can’t search a suitcase if you’re expecting to find illegal aliens in the car)

This would include the trunk, if there’s probable cause specifically related to the trunk.

88
Q

6th:

What are some important pre-trial proceedings in which the right to counsel does and does not apply?

A

DOES APPLY:
- Preliminary hearings to determine PC to PROSECUTE (D is already charged)
- POST-CHARGE lineup

DOES NOT APPLY:

  • Preliminary hearings to determine PC to DETAIN
  • Photo ID lineups
  • PRE-CHARGE lineup
89
Q

6th:

What are some important post-trial proceedings in which the right to counsel does and does not apply?

A

DOES APPLY:

  • Sentencing
  • Appeals as a matter of right

DOES NOT APPLY:

  • Discretionary appeals
  • Post-conviction proceedings (e.g. habeas)
  • Parole and probation revocation
90
Q

6th:

Can a statement obtained in violation of D’s right to counsel be used at trial?

A

ONLY for impeachment

91
Q

5th:

Can a statement obtained in violation of D’s right against self-incrimination be used at trial?

A

ONLY for impeachment

92
Q

5th:

What are a person’s options after they’ve been given their Miranda warnings?

A
  • Do nothing—not the same as invoking your right to remain silent; the cops can keep questioning you
  • Waive rights (to counsel, to remain silent)
  • Invoke right to remain silent
  • Invoke right to counsel—must be unambiguous
93
Q

5th:

D has invoked right to remain silent. When can the police re-initiate interrogation?

D has invoked right to counsel. When can the police re-initiate interrogation?

A

Generally, they must SCRUPULOUSLY HONOR D’s request. Can re-initiate questioning IF:

  • D voluntarily and spontaneously re-initiates the interrogation
  • After a long break (think SEVERAL HOURS), and fresh Miranda warnings are given AGAIN, they can ask him about an UNRELATED crime
  • D voluntarily and spontaneously re-initiates the interrogation
  • Once counsel is provided
94
Q

5th:

Police detain and interrogate D. They don’t give him his Miranda warnings. He confesses. Later, they give him his Miranda warnings and he records a new confession over again.

Is the second confession admissible?

A

Generally no. This “question first, warn later” approach is not okay.

EXCEPTION: if it appears the failure to give the warnings was inadvertent, and the cops really are trying to do it over again the proper way.

95
Q

5th:

Police detain and interrogate D. They don’t give him his Miranda warnings. During the interrogation, D mentions where he hid the gun. The police find the gun where D said it was and use it against him at trial.

Is the gun admissible?

A

YES—this is an exception to the fruit-of-the-poisonous-tree doctrine. Since the evidence is NON-TESTIMONIAL, it’s not implicated by the rights Miranda protects.

UNLESS the cops purposefully did this to get around Miranda

96
Q

Exclusionary rule:

What is the fruit of the poisonous tree doctrine?

What are the exceptions?

A
  • Protects D’s 4th, 5th, and 6th A rights. Evidence obtained in violation of these rights is inadmissible, including any evidence properly found by exploiting this unconstitutionally-obtained evidence.
  • Does NOT APPLY in grand jury proceedings
  • Unlawful arrest, but police relied in good faith on a warrant or their understanding of the law
  • Fruits (non-testimonial evidence) obtained in violation of Miranda
  • Fruits obtained from an independent source (not the poisonous tree)
  • An intervening act of free will, e.g. D is illegally arrested but shows up later to confess on his own
  • Inevitable discovery
  • Violations of knock and announce rule
97
Q

Grand jury:

Does D have a right to:

  • Be present
  • Counsel
  • Confront witnesses or introduce evidence
  • Miranda warnings
  • Be warned that he is a suspect before he testifies if he is subpoenaed?
A

No

Although, if D has to testify, he can refuse to answer incriminating questions

98
Q

Trial:

Does a criminal defendant have a right to a jury trial?

A

Only for serious offenses—imprisonment for 6+ months

No right to jury trial for juvenile proceedings

99
Q

Trial:

How many people have to be on the jury? Does their verdict have to be unanimous?

A
  • Usually 12 or 6

- Yes, IF only 6 people

100
Q

5th - Double jeopardy:

Double jeopardy prevents a defendant from being prosecuted twice for the same crime.

When are two crimes considered “the same” crime for double jeopardy purposes?

A
  • The same facts can supply a conviction under both
    AND
  • Neither crime includes ANY ELEMENT not included in the other one

ALSO, a crime is the “same” as any lesser-included offense

101
Q

5th - Double jeopardy:

D is convicted of a drug offense under TX state law. Then, the feds prosecute him for the same conduct. Violation of double jeopardy?

A

NO—separate sovereigns

102
Q

5th:

D is brought before victim in a lineup. Everyone in the lineup is required to say “Your money or your life!” as the perp said to the victim at the crime.

D refuses, arguing this violates his right against self-incrimination. Is he right?

A

No—no more than the color of his hair gives away to the victim that he’s the one who committed the crime

103
Q

5th:

Police believe the person who wrote a note (“Met with supplier on 5/19”) is a drug kingpin. D is required to turn over the note via a subpoena.

D refuses, arguing this violates his right against self-incrimination. Is he right?

A

No—it’s not a compelled testimonial statement

104
Q

Homicide:

Intoxication (voluntary) can reduce a murder charge from first degree (premeditated) to what?

A

Second degree murder—NOT manslaughter

Intoxication doesn’t negate the mental state of reckless disregard for human life (depraved heart), which is enough to show MALICE.

105
Q

Inchoate:

Statute makes it a crime to sell liquor to minors. In a jurisdiction that follows the unitary approach to conspiracy, can the store employee and the minor be charged with conspiracy to violate the statute?

A

No, only the store owner

The minor is a member of the CLASS TO BE PROTECTED BY THE STATUTE

106
Q

Grand jury:

Can a witness who has been subpoenaed refuse to testify because they are worried they will incriminate themselves?

A

No—have to take the stand, but can invoke 5th A to specific Qs.

107
Q

Defenses:

If an insane person has delusions that lead them to kill the victim, what effect do those delusions have on the insanity defense?

A

Look at the situation from the defendant’s point of view—if the delusions were true, would the defendant’s act meet one of the elements of insanity?

E.g. A defendant cannot know his killing is wrongful if he has a delusion that the victim is a monster trying to kill him (defendant would believe he was justified in using self defense)

E.g. A defendant cannot know the nature and quality of his actions if he had a delusion that, when he stabs someone with a knife, he is feeding them food.

108
Q

Trial:

D wants to plead guilty. What warnings must a judge give before accepting a guilty plea? I.e. what must the judge ensure the defendant understands about the consequences of a guilty plea?

A
  • Understands the nature of the crime charged, and the MAXIMUM SENTENCE the judge can impose to someone guilty of that crime
  • D has a right not to plead guilty
  • The guilty plea waives her right to a JURY TRIAL
109
Q

What is encompassed by “possession” of a controlled substance?

  • Act
  • Mental state

What if the statute requires “knowingly” possessing a substance?

A

ACT: Control for a long enough time that D could have gotten rid of it (there’s no requirement that D touch or handle it in any way)

MENTAL STATE:

  • Aware of possession, but doesn’t require awareness of what it is or the illegality
  • KNOWINGLY = awareness of WHAT he possesses (or willful ignorance)
110
Q

Accomplice liability:

D helps his friend commit crime that has “reckless or negligent” as its mens rea. Will de be guilty of the underlying crime or just guilty as an accomplice?

A

Guilty of the underlying crime

If the crime has reckless or negligent as the mental state required, an “accomplice” can violate the crime directly if they:

  • Intended to facilitate the commission of the crime
  • AND also acted with recklessness or negligence
111
Q

4th:

What are the three primary types of seizures of a person?

A
  • Arrest
  • Terry stop/frisk (investigatory detention)
  • Automobile
112
Q

4th:

What is the scope of the search-incident-to-arrest exception?

A

Includes search of:

  • The person
  • Anything within their immediate wingspan (the idea is to keep them from grabbing any nearby weapons)

*The search must be CONTEMPORANEOUS with the arrest

113
Q

5th:

What is the basic framework for analyzing whether Miranda warnings should have been given?

A

(1) Was the person in CUSTODY?
- A reasonable person would not feel free to leave
- The environment presents similar coercive pressure to a stationhouse questioning

(2) Did the person know they were speaking with a POLICE OFFICER?
- If not, NO warnings need to be given

(3) Was there an INTERROGATION?
- Any words or conduct by the police that they should know will elicit an INCRIMINATING RESPONSE

114
Q

6th:

When does the 6th A right to counsel begin?

A
  • Once the defendant has been CHARGED (e.g. indictment)

The basic idea is that a defendant has a right to counsel under the 6th A during all “critical” stages of the proceedings.

115
Q

6th and 5th:

What is the difference b/w the right to counsel under these two amendments?

A

TIMING:

5th A begins as soon as D is in CUSTODY (and being interrogated). So, this could arise when D is arrested or temporarily detained.

6th A begins when D is CHARGED—so, much later than the 5th A right to counsel kicks in.

116
Q

6th and 5th:

D doesn’t know he’s talking with a police officer. Does he have a right to counsel under the 6th A and/or 5th A?

A

5th&raquo_space;> NO

6th&raquo_space;> YES (right to counsel during critical stages, even if D doesn’t know he’s talking with an officer, e.g. “jail cell interrogation”)

117
Q

6th and 5th:

Which of these is “offense-specific?”

What does that mean?

A

Only the 6th A is offense-specific

D could be suspected of two different crimes. Once he is in the critical stages of crime #1, his 6th A right to counsel is live, even though his right to counsel for crime #2 is not. E.g. he could be questioned by a jail cell informant about crime #2, but not crime #1.

For Miranda (5th A), once D is in custody for crime #1, the police cannot interrogate him about EITHER crime until he receives his Miranda warnings.

118
Q

5th - Double jeopardy:

When does double jeopardy attach?

A

Jury trial&raquo_space;> after JURY is sworn in

Bench trial&raquo_space;> after first WITNESS is sworn in

119
Q

5th A:

Does a D need to be given his Miranda warnings before submitting to a State-ordered psychiatric exam? What a bout a parole officer?

A

Yes

No

120
Q

5th:

It appears D might have invoked the right to counsel, but it was ambiguous. What must the police do in response?

A

They don’t have to do anything—they can continue questioning like normal. The request for counsel is effective only if UNAMBIGUOUS.

They MAY clarify to see if that’s really what D meant, but they don’t have to.

121
Q

Trial:

If the police arrest D without a warrant or probable cause (i.e. an unconstitutional arrest), but they give him Miranda warnings and he confesses, can the state use the confession at trial?

A

No. The confession is “fruit” of a “poisonous tree” (the unconstitutional arrest). The confession was derived from the arrest. There’s nothing to break that chain, so the whole thing is excluded.

122
Q

Inchoate:

A and B agree to go hunt deer on Friday. The hunting season ended last week, but they thought it ended the following week. Are they guilty of conspiracy?

A

Yes—they didn’t know it was illegal, but they agreed to the conduct that would be illegal if they followed through with it.

123
Q

4th:

An officer needs [PC or RS] to:

  • Stop a vehicle
  • Search a vehicle
A

Stop&raquo_space;> RS
Search&raquo_space;> PC

What’s the difference? Who knows…

124
Q

4th:

A is pulled over for a traffic violation. Is he in custody?

A

No

So he would NOT need Miranda warnings!

BAR EXAM (25 decks)

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