Criminal Law & Procedure

Question 1

Do Miranda warnings need to be given before a suspect is interrogated by a civilian working for the police?

Answer 1

Depends on whether the suspect knows this person is employed by the police.

Miranda generally applies only to interrogation by the publicly paid police. It does not apply where interrogation is by an informant who the defendant does not know is working for the police. The rationale is that the warnings are intended to offset the coercive nature of police-dominated interrogation, and if the defendant does not know that he is being interrogated by the police, there is no coercive atmosphere to offset.

Question 2

A confession obtained in violation of Miranda, but otherwise voluntary, can be used for:

Answer 2

the limited purpose of impeaching a defendant who testifies at trial

Question 3

When is an offense considered “serious” for determining whether a defendant has a constitutional right to a jury trial.

Answer 3

If more than six months’ imprisonment is authorized

Question 4

What factors should be considered when determining a violation to a speedy trial

Answer 4

i) length of the delay,
(ii) reason for the delay,
(iii) whether the defendant asserted his right,
(iv) prejudice to the defendant.

Question 5

When does the Sixth Amendment right to counsel apply?

Answer 5

only after adversary judicial proceedings have begun (e.g., formal charges have been filed)

Question 6

What is the hierarchy of murder crimes?

Answer 6

1) Murder
2) Voluntary Manslaughter
3) Involuntary Manslaughter
4) Batter

Question 7

What is more helpful to the D, knocking out an element of the crime or raising an affirmative defense?

Answer 7

Knocking out an element of the crime - attacks prosecution’s case-in-chief

Question 8

What limitation does “agency theory” jurisdiction place on the felony murder liability?

Answer 8

In states following the agency theory of felony murder, the killing must have been caused by the defendant or someone acting as the defendant’s “agent” (i.e., an accomplice).

Thus, a killing by neither the police nor the victim would not result in the defendant’s liability for felony murder.

Question 9

What is the M’Naghten rule?

Answer 9

Under the M’Naghten rule, a defendant is entitled to an acquittal if the proof establishes that a disease of the mind caused a defect of reason, such that the defendant lacked the ability at the time of his actions to either know the wrongfulness of his actions or understand the nature and quality of his actions.

Question 10

What is the majority rule for abandonment as a defense to liability for an attempt to commit a crime?

Answer 10

Not a defense.

Under the majority rule, liability for attempt arises once D commits an overt act concurrently with the specific intent to commit the crime (i.e. D is liable for the attempt before he can abandon the crime)

Question 11

What is the remedy for an exclusionary rule violation

Answer 11

harmless error review

Question 12

When will a school search be held reasonable?

Answer 12

(i) it offers a moderate chance of finding evidence of wrongdoing;
(ii) the measures adopted to carry out the search are reasonably related to the objectives of the search; and
(iii) the search is not excessively intrusive in light of the age and sex of the student and the nature of the infraction

Question 13

How must a suspect effectively invoke their right to counsel

Answer 13

Request for an attorney must be unambiguous and sufficiently clear that a reasonable officer would understand the statement to be a request.

The police are under no duty to clarify an ambiguous request.

Question 14

What standard do the courts use to assess whether a waiver of Miranda rights is valid

Answer 14

Totality of the circumstances

Standard is probably met if suspect receives warnings and subsequently answers questions.

Question 15

What is the 6th Amendment right to counsel?

Answer 15

The 6th amendment affords a suspect the right to counsel during all critical stages of a criminal prosecution after formal proceedings have begun.

The right is offense specific and police are permitted to question D about any other crime without violating the right to counsel.

Question 16

Under the 6th amendment, do the police the need to inform a suspect that their counsel is attempting to see their client, the suspect?

Answer 16

Police failure to inform a a suspect that his lawyer is attempting to see him does not violate the 6th amendment, except with regard to charges for which judicial proceedings have commenced

Question 17

Which crimes merge into their substantive offenses if completed, and which do not?

Answer 17

solicitation and attempt merge

attempt does not

Question 18

When does a state acquire jurisdiction over a crime?

Answer 18

if either the conduct or the result happened in that statw

Question 19

What are the additional defenses available to specific intent crimes?

Answer 19

1) voluntary intoxication

2) unreasonable mistake of fact

Question 20

When does transferred intent not apply?

Answer 20

Attempt crimes

Question 21

Why does merger not apply to crimes convicted under transfer intent doctrine?

Answer 21

Because different victims

Question 22

When faced with D being charged by 2 crimes, what issues come to mind?

Answer 22

1) merger doctrine (inchoate offenses & lesser included offenses)
2) double jeopardy

Question 23

What is the unilateral v. bilateral approach for conspiracy crimes

Answer 23

unilateral - modern trend, requires only need one person to have a genuine criminal intent

bilateral - traditional, common law requires two guilty parties. If one person is feigning agreement, the other person cannot be guilty of conspiracy, and the acquittal of all persons with whom the D is alleged to have conspired precludes conviction of the remaining D

Question 24

What is the open fields doctrine?

Answer 24

Under the “open fields” doctrine, areas outside the “curtilage” (dwelling house and outbuildings) are subject to police search, as these areas are held out to the public and are unprotected by the Fourth Amendment

Question 25

How does the court determine whether a fixture is part of the curtillage

Answer 25

1) the proximity of the building to the dwelling,
2) whether the area is enclosed in the same area as the dwelling, and
3) the steps taken by the resident to protect the building from the view of passersby.

Question 26

Who decides whether facts related to statutorily-permitted increased sentencing should be applied?

Answer 26

If a substantive law provides that a sentence may be increased beyond the statutory main for a crime if additional face are proved, proof of the facts must be submitted to the jury and proved beyond a reasonable doubt. A judicial finding would violate the D’s right to a jury trial

Question 27

Can the burden of proofs be shifted?

Answer 27

No.

Due process demands that the prosecution maintain the burden of proving each and every element of the charged offence beyond a reasonable doubt regardless of what a state statute says regarding where the burden of proof falls

Question 28

Does double jeopardy prevent the imposition of cumulative sentencing?

Answer 28

Only if 1) two or more statutorily defined offenses, 2) specifically intended by the legislature to carry separate punishments, even though constituting the “same” crime under theBlockburgertest (i.e., each offense does not require proof of some additional fact that the other does not), 3) when the punishments are imposed at a single trial.

Question 29

Is a confession voluntary when due to mental defect?

Answer 29

A confession is not considered involuntary simply because it is the product of a mental disease that prevents the confession from being of the defendant’s free will

Question 30

When is a guilty plea voluntary?

Answer 30

1) informed of the nature of the charge to which the plea is offered,
2) of the maximum possible penalty,
3) right not to plead guilty, and
4) that by pleading guilty she waives her right to a trial.

Question 31

When can a confession of co-defendant implicating the other co-defendant be admitted?

Answer 31

i) all portions of the statement referring to the other defendant are eliminated (so that there is no indication of that defendant’s involvement);
(ii) the confessing defendant takes the stand and subjects himself to cross-examination;or
(iii) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission.

Question 32

Does a warrantless search of a parolee’s home violate his 4th?

Answer 32

No - if a statute provides for such searches.

Question 33

Are Miranda warnings required for state-ordered psychiatric exams?

Answer 33

Yes

Question 34

What can the police search in the automobile if probable cause there is contraband?

Answer 34

Everything, including passenger’s belongings as well as the driver’s

Question 35

What is legal impossibility?

Answer 35

The defendant believes what he or she is attempting to do is illegal, when it is not.

Always defense

Question 36

What is factual impossibility?

Answer 36

The defendant could not complete the crime attempted because the facts are not as he or she believes them to be.

Rarely a defense. Never a defense for attempt

Question 37

Can an accomplice be found guilty of a more serious offense than the princiapl?

Answer 37

Yes - the degree of liability of a principal is irrelevant to the potential liability of an accomplice

Question 38

What meets the “burning” requirement for arson?

Answer 38

Does not require significant damage to the building; a charring of the combustible material is sufficient

Question 39

What are the modern day modifications to the common law definition of burgalry

Answer 39

1) can happen during the day or night
2) remaining in the structure with the intent to commit an offense replaces the “breaking” requirement
3) types of structures that may be burglarized has been expanded to include commercial structures

Question 40

When can a kidnapping arise during the commission of another crime?

Answer 40

A defendant who, during the commission of another offense, moves a victim a short distance may also be convicted of kidnapping if the movement substantially increases the risk to the victim over and above that necessarily involved in the crime he is committing.

Question 41

What is required for aggravated kidnapping?

Answer 41

when the kidnapping was committed for ransom,

when the kidnapping was committed for the purpose of another crime,

and when the victim was a child.

Question 42

Is a voluntary confession in violation of Miranda admissible?

Answer 42

No