Criminal Law/Procedure Flashcards

Question

Duress

Answer 1

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

Answer 2

reasonably necessary to avoid imminent and greater injury to society Private necessity = liable for property damage to other no excuse for homicide

Answer 3

other defense Factual impossibility = no defense Legal impossibility = not illegal to do what D intended to do

Answer 4

other defense Specific Intent Crimes = any mistake is defense Malice/Gen. intent crimes = reasonable mistake only Strict liability crimes = never

Answer 5

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

Answer 6

other defense Only IF police originated criminal design and D was not predisposed to commit act

Answer 7

Unlawful application of force resulting in bodily injury or offensive touching Aggravated battery: deadly weapon; serious bodily harm; to a child, woman or police

Answer 8

Attempted battery (specific intent); or threat to inflict bodily injury (general intent)

Answer 9

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

Answer 10

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

Answer 11

covers everything else under CL murder. Unjustified killing.

Answer 12

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

Answer 13

taking and carrying away of personal property of another by trespass with intent to permanently deprive

Answer 14

Fraudulent conversion of personal property of another by a person in lawful possession of that property

Answer 15

Obtaining TITLE to personal property of another by an intentional, false statement of past or existing fact with intent to defraud

Answer 16

obtaining POSSESSION to personal property of another by intentional false statement of fact with intent to defraud

Answer 17

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

Answer 18

obtain property by threat of harm/exposing info

Answer 19

receiving possession and control of stolen personal property known to have been stolen by another person with intent to permanently deprive owner

Answer 20

Breaking and entering of a dwelling of another at nighttime with intent to commit a felony therein

Answer 21

malicious burning of dwelling of another Requires damage to structure

Answer 22

(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

Answer 23

(exception) reliance on (i) judicial opinion; (ii) statute or ordinance; or (iii) defective search warrant

Answer 24

(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.

Answer 25

admission of illegal evidence will overturn conviction unless gov't can show beyond a reasonable doubt that the error was harmless

Answer 26

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)

Answer 27

4th Amendment Must include: 1) particularity of place searched 2) particularity of things seized; and 3) issued by neutral and detached judicial officer

Answer 28

Affiant intentionally and recklessly included material false statement BUT, good faith still applies

Answer 29

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 ?

Answer 30

1) incident to lawful arrest 2) automobile exception 3) plain view 4) consent 5) stop and frisk 6) hot pursuit/evanescent evidence

Answer 31

search contemporaneous in time and place limited to wingspan of individual

Answer 32

incident to arrest = may search interior compartment of car but not trunk If probable cause = full search, including any containers

Answer 33

officer must be legitimately on premises

Answer 34

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

Answer 35

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

Answer 36

May follow suspect into dwelling if in pursuit (should be within 15 mins. of suspect) May seize evidence that is likely to disappear

Answer 37

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

Answer 38

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

Answer 39

Must be knowing, voluntary & intelligent

Answer 40

Right to counsel. Post-charge at critical stages of proceeding. Offense specific

Answer 41

requires that confession be voluntary

Answer 42

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

Answer 43

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

Answer 44

Attaches when jury is sworn or, if no jury, first witness is sworn Does not apply to separate sovereigns

Answer 45

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

Answer 46

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

Answer 47

P = must disclose material, exculpatory evidence D= must disclose use of alibi or insanity

Answer 48

Right if maximum authorized sentence > 6 months

Answer 49

If 6 jurors --> must be unanimous If 12 jurors --> 9-3 is enough (but usually still unanimous)

Answer 50

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

Answer 51

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.