Criminal Law/Procedure Flashcards
Merger of Crimes
ONLY for solicitation and attempt merge into substantive offense.
There is NO merger for conspiracy – separate crime.
Essential elements of a crime
1) Physical acts (acts reus): own volition, but not reflective, convulsive or unconscious; and
2) Mental state (mens rea)
What are the Specific Intent Crimes?
BAM ACTS: Burglary, Assault, Murder (1st degree), Attempt, Conspiracy, Theft, Solicitation
Malice Crimes
Reckless disregard of obviously high risk of harm
What are two different Malice crimes?
Second-degree murder and Arson
General Intent Crimes
Awareness of all factors constituting crime (e.g., awareness of act or high likelihood it will occur)
Strict Liability Crimes
No required awareness
Transferred Intent
Two charges - attempt and offense
Accomplice Liablity
Liable for crime itself and all foreseeable crimes
Requires active involvement (e.g., aid, counsel or encourage, with INTENT TO AID)
Solicitation
Asking someone to commit a crime.
Requires intent for person to commit the crime
the crimes is completed at the asking – if the other person accepts, it merges into conspiracy.
Conspiracy
(1) an agreeement; (2) intent to agree; (3) unlawful obj.
MAJ J.: Requires an overt act.
Liability: all foreseeable crimes committed to further conspiracy
Withdrawal: requires (1) affirmative act notifying all members of withdrawal and (2) assistance in neutralizing.
If withdrawal is successful: cuts off liability for subsequent crimes of co-conspirators, not conspiracy itself
Attempt
specific intent to commit the actual offense + substantial step beyond mere preparation
Defense 1: Insanity
Defense to ALL, including strict liability
D has the burden of production
Defense 2: Intoxication
Voluntary –> only a defense to Specific Intent Crimes
Involuntary –> like insanity. It is a defense to ALL, including SL.
1) taking drugs/alcohol
2) w/o knowledge, under duress, or pursuant to med advice without awareness of intoxicating effect
Defense 3: Infancy
If below 7 then NO liability
If above 14 then rebuttable presumption of no liability.
M’Naghten Test
First Insanity test
At time of conduct, D lacked ability to know wrongfulness of actions or nature/quality of actions
Irresistible Impulse Test
Second Insanity test
D lacks the capacity for self-control & free choice , or unable to conform conduct to the law.
MPC Test
Third Insanity test
D lacked the capacity to (i) appreciate criminality of conduct OR (ii) conform conduct to req’s of law.
Durham rule
Fourth Insanity test
D’s conduct was product fo mental illness
Self-Defense
An excuse/justification for a crime
Non-deadly: if reasonably necessary
Deadly: (i) D without fault; (ii) confronted w/ unlawful force; (iii) reasonably believe to be threatened w/ imminent death/great bodily harm
MIN. J.: retreat unless in person’s home; making lawful arrest; or victim of rape/robbery. But original aggressor must withdraw and communicate withdrawal
Defense of Others
An excuse/justification
Person assisted reasonably appeared to have legal right to use force in his own defense
Defense of property
an excuse/justification
Non-deadly force OK. No force allowed to regain possession unless in hot pursuit
Crime Prevention
Non deadly force to prevent felony or breach of peace
Deadly force only to prevent a dangerous felony (BARRK)
Effectuate Arrest
Private Person: Deadly force only IF person harmed was guilty of offense
Officer: Deadly force to apprehend fleeing felon who threatens death/serious bodily harm and necessary to prevent escape
Duress
excuse/justification
threats of imminent infliction of death/great bodily harm to person or third party (member of immediate family)
Does not excuse or justify homicide
Necessity
reasonably necessary to avoid imminent and greater injury to society
Private necessity = liable for property damage to other
no excuse for homicide
Impossibility
other defense
Factual impossibility = no defense
Legal impossibility = not illegal to do what D intended to do
Mistake of fact
other defense
Specific Intent Crimes = any mistake is defense
Malice/Gen. intent crimes = reasonable mistake only
Strict liability crimes = never
Consent
other defense
Only if crime requires lack of consent (e.g., rape)
requirements:
1) consent voluntarily/freely given
2) legally capable; and
3) no fraud
Entrapments
other defense
Only IF police originated criminal design and D was not predisposed to commit act
battery
Unlawful application of force resulting in bodily injury or offensive touching
Aggravated battery: deadly weapon; serious bodily harm; to a child, woman or police
Assault
Attempted battery (specific intent); or
threat to inflict bodily injury (general intent)
Homicide
unlawful killing of human with malice aforethought
intent to kill = first-degree murder
intent to cause serious bodily harm = second-degree murder
reckless indifference to an extreme risk to human life = second-degree murder
felony murder
First-degree murder
intent to kill
Deliberate, willful, and premeditated and enumerated felony (e.g., arson, robbery, burglary, rape, mayhem and kidnapping)
no felony murder once D reaches temp. safety or if death of co-felon is result of resistance by victim or police
Second-degree murder
covers everything else under CL murder. Unjustified killing.
Manslaughter
Bump down murder if “imperfect self-defense” – D was at fault in starting fight or unreasonably but honestly believed in necessity.
Voluntary – murder with adequate provocation/heat of passion without time to cool
Involuntary – criminal negligence, battery, or misdemeanor
Larceny
taking and carrying away of personal property of another by trespass with intent to permanently deprive
Embezzlement
Fraudulent conversion of personal property of another by a person in lawful possession of that property
false Pretense
Obtaining TITLE to personal property of another by an intentional, false statement of past or existing fact with intent to defraud
Larceny by trick
obtaining POSSESSION to personal property of another by intentional false statement of fact with intent to defraud
robbery
Taking of personal property of another from other’s person or presence by person by force or threat of imminent death/injury with intent to permanently deprive
Extortion
obtain property by threat of harm/exposing info
Receipt of stolen property
receiving possession and control of stolen personal property known to have been stolen by another person with intent to permanently deprive owner
Burglary
Breaking and entering of a dwelling of another at nighttime with intent to commit a felony therein
Arson
malicious burning of dwelling of another
Requires damage to structure
Exceptions to the Exclusionary Rule
(exclusion)
1) statements in violation of MIRANDA
2) independent source
3) inevitable discovery
4) intervening act of free will by D
5) violation of knock and announce
BUT, voluntary confessions in violation of MIRANDA are admissible to impeach, and evidence from illegal search can impeach D’s trial testimony
Good Faith Defense to the exclusionary rule
(exception)
reliance on (i) judicial opinion; (ii) statute or ordinance; or (iii) defective search warrant
How is Good Faith negated?
(i) affidavit so lacking in probable cause (PC) that no reasonable officer would rely on it; (ii) Warrant defective/invalid on face; (iii) affiant lied or misled judge; (iv) judge wholly abandoned judicial role.
Harmless Error
admission of illegal evidence will overturn conviction unless gov’t can show beyond a reasonable doubt that the error was harmless
Arrest requirements
Fourth Amendment is implicated
Probable cause + warrant if D in home
Stop in car requires reasonable suspicion (checkpoint and pre-textual stops OK so long as applied neutrally)
Valid Warrant
4th Amendment
Must include:
1) particularity of place searched
2) particularity of things seized; and
3) issued by neutral and detached judicial officer
Challenge IF:
Affiant intentionally and recklessly included material false statement
BUT, good faith still applies
Search & Seizure: three-step analysis
1) Does the person have a 4th Amendment right to vindicate (standing)? [ gov’t conduct + reasonable expectation of privacy (e.g., ownership or living in premises searched, overnight guest, but not items held out to public)]
(2) Search warrant valid?
(3) If no, is there an applicable exception ?
Exceptions to Valid Search Warrent
1) incident to lawful arrest
2) automobile exception
3) plain view
4) consent
5) stop and frisk
6) hot pursuit/evanescent evidence
1) Incident to lawful arrest
search contemporaneous in time and place
limited to wingspan of individual
2) automobile exception
incident to arrest = may search interior compartment of car but not trunk
If probable cause = full search, including any containers
3) plain view
officer must be legitimately on premises
4) consent
voluntary and intelligent consent by someone who has apparent equal right of use and access
Valid search even if individual did not have authority if police reasonably believed they did
5) Stop and Frisk
STOP if reasonable suspicion of criminal act supported by articulable facts (anonymous phone call not enough)
FRISK if reasonable suspicion that suspect is armed and dangerous but limited to finding weapons
Hot Pursuit/Evanescent Evidence
May follow suspect into dwelling if in pursuit (should be within 15 mins. of suspect)
May seize evidence that is likely to disappear
Wiretapping
Allowed:
1) ONLY if probable cause
2) warrant must include named persons and description with particularity re: conversations
3) for limited time
4) terminated when info obtained
5) return to court to show what was intercepted
5th Amendment - Miranda rights
Miranda for CUSTODIAL (not free to leave) interrogations (reasonably likely to elicit response)
unambiguous assertion of right to attorney prohibits questioning unless accused initiates resumption.
NOT offense specific
Voluntary confessions made in violation of Miranda are admissible to impeach
Waiver of Rights under Miranda
Must be knowing, voluntary & intelligent
6th Amendment
Right to counsel. Post-charge at critical stages of proceeding.
Offense specific
14th Amendment
requires that confession be voluntary
Admissibility of Co-defendant confession
Redact all portions to other D
Confession D takes stand and subject to cross
Confession of non-testifying D is being used to rebut the D’s claim that his confession was obtained by coercion
Grounds for attack
Right to counsel for post-charge line ups/show ups
No right to counsel at photo ID
Denial of Due Process; if unnecessarily suggestive or substantially likely to present mistake
Remedy: exclude in-court ID
negated if P can show adequate independent source of identification, including ample opportunity to observe person at time of crime
Double Jeopardy
Attaches when jury is sworn or, if no jury, first witness is sworn
Does not apply to separate sovereigns
Exceptions to Double Jeopardy
1) hung jury
2) mistrial from manifest necessity
3) retrial from successful appeal unless insufficient evidence to support verdict
4) breach of agreed plea
5) termination at behest of D on grounds not constituting acquittal
5th Amendment Privilege Against Self-Incirimination
Any natural person can assert, but only applies to testimonial disclosure
LIMITATIONS: doesn’t apply to compulsory disclosure of docs; must be asserted at first instance of questioning on that subject, including civil trials
EFFECT: P can’t make negative comment on silence, unless D asserts that D wasn’t able to tell his side of the story
ELIMINATED IF : grant of immunity; no possibility of incrimination (e.g., stat of limitations); waiver
Pre-trail disclosure requirements
P = must disclose material, exculpatory evidence
D= must disclose use of alibi or insanity
When is there a Right to Jury Trial?
Right if maximum authorized sentence > 6 months
jury Voting Requirements for Conviction
If 6 jurors –> must be unanimous
If 12 jurors –> 9-3 is enough (but usually still unanimous)
Death Penalty cases
may exclude juror with absolute opposition that may prevent or substantially impart performance
Must present all relevant mitigating evidence
No automatic Death Penalty
Only jury can determine aggravating factor imposing death penalty
Plea Deals
Judge must address D personally re:
(1) nature of charge;
(2) max possible penalty/madatory min; and
(3) that D has a right to plead guilty but would wave right to trial
Overturn plea IF:
involuntary; lack of jurisdiction; ineffective assistance of counsel; P fails to keep agreed plea bargain.
