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Constitutional Law > Criminal Law/Procedure > Flashcards

Criminal Law/Procedure Flashcards

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1
Q

Merger of Crimes

A

ONLY for solicitation and attempt merge into substantive offense.

There is NO merger for conspiracy – separate crime.

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2
Q

Essential elements of a crime

A

1) Physical acts (acts reus): own volition, but not reflective, convulsive or unconscious; and
2) Mental state (mens rea)

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3
Q

What are the Specific Intent Crimes?

A

BAM ACTS: Burglary, Assault, Murder (1st degree), Attempt, Conspiracy, Theft, Solicitation

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4
Q

Malice Crimes

A

Reckless disregard of obviously high risk of harm

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5
Q

What are two different Malice crimes?

A

Second-degree murder and Arson

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6
Q

General Intent Crimes

A

Awareness of all factors constituting crime (e.g., awareness of act or high likelihood it will occur)

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7
Q

Strict Liability Crimes

A

No required awareness

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8
Q

Transferred Intent

A

Two charges - attempt and offense

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9
Q

Accomplice Liablity

A

Liable for crime itself and all foreseeable crimes

Requires active involvement (e.g., aid, counsel or encourage, with INTENT TO AID)

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10
Q

Solicitation

A

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.

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11
Q

Conspiracy

A

(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

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12
Q

Attempt

A

specific intent to commit the actual offense + substantial step beyond mere preparation

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13
Q

Defense 1: Insanity

A

Defense to ALL, including strict liability

D has the burden of production

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14
Q

Defense 2: Intoxication

A

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

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15
Q

Defense 3: Infancy

A

If below 7 then NO liability

If above 14 then rebuttable presumption of no liability.

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16
Q

M’Naghten Test

A

First Insanity test

At time of conduct, D lacked ability to know wrongfulness of actions or nature/quality of actions

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17
Q

Irresistible Impulse Test

A

Second Insanity test

D lacks the capacity for self-control & free choice , or unable to conform conduct to the law.

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18
Q

MPC Test

A

Third Insanity test

D lacked the capacity to (i) appreciate criminality of conduct OR (ii) conform conduct to req’s of law.

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19
Q

Durham rule

A

Fourth Insanity test

D’s conduct was product fo mental illness

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20
Q

Self-Defense

A

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

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21
Q

Defense of Others

A

An excuse/justification

Person assisted reasonably appeared to have legal right to use force in his own defense

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22
Q

Defense of property

A

an excuse/justification

Non-deadly force OK. No force allowed to regain possession unless in hot pursuit

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23
Q

Crime Prevention

A

Non deadly force to prevent felony or breach of peace

Deadly force only to prevent a dangerous felony (BARRK)

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24
Q

Effectuate Arrest

A

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

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25
Q

Duress

A

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

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26
Q

Necessity

A

reasonably necessary to avoid imminent and greater injury to society

Private necessity = liable for property damage to other

no excuse for homicide

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27
Q

Impossibility

A

other defense

Factual impossibility = no defense

Legal impossibility = not illegal to do what D intended to do

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28
Q

Mistake of fact

A

other defense

Specific Intent Crimes = any mistake is defense

Malice/Gen. intent crimes = reasonable mistake only

Strict liability crimes = never

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29
Q

Consent

A

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

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30
Q

Entrapments

A

other defense

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

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31
Q

battery

A

Unlawful application of force resulting in bodily injury or offensive touching

Aggravated battery: deadly weapon; serious bodily harm; to a child, woman or police

32
Q

Assault

A

Attempted battery (specific intent); or

threat to inflict bodily injury (general intent)

33
Q

Homicide

A

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

34
Q

First-degree murder

A

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

35
Q

Second-degree murder

A

covers everything else under CL murder. Unjustified killing.

36
Q

Manslaughter

A

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

37
Q

Larceny

A

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

38
Q

Embezzlement

A

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

39
Q

false Pretense

A

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

40
Q

Larceny by trick

A

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

41
Q

robbery

A

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

42
Q

Extortion

A

obtain property by threat of harm/exposing info

43
Q

Receipt of stolen property

A

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

44
Q

Burglary

A

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

45
Q

Arson

A

malicious burning of dwelling of another

Requires damage to structure

46
Q

Exceptions to the Exclusionary Rule

A

(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

47
Q

Good Faith Defense to the exclusionary rule

A

(exception)

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

48
Q

How is Good Faith negated?

A

(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.

49
Q

Harmless Error

A

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

50
Q

Arrest requirements

A

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)

51
Q

Valid Warrant

A

4th Amendment

Must include:

1) particularity of place searched
2) particularity of things seized; and
3) issued by neutral and detached judicial officer

52
Q

Challenge IF:

A

Affiant intentionally and recklessly included material false statement

BUT, good faith still applies

53
Q

Search & Seizure: three-step analysis

A

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 ?

54
Q

Exceptions to Valid Search Warrent

A

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

55
Q

1) Incident to lawful arrest

A

search contemporaneous in time and place

limited to wingspan of individual

56
Q

2) automobile exception

A

incident to arrest = may search interior compartment of car but not trunk

If probable cause = full search, including any containers

57
Q

3) plain view

A

officer must be legitimately on premises

58
Q

4) consent

A

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

59
Q

5) Stop and Frisk

A

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

60
Q

Hot Pursuit/Evanescent Evidence

A

May follow suspect into dwelling if in pursuit (should be within 15 mins. of suspect)

May seize evidence that is likely to disappear

61
Q

Wiretapping

A

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

62
Q

5th Amendment - Miranda rights

A

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

63
Q

Waiver of Rights under Miranda

A

Must be knowing, voluntary & intelligent

64
Q

6th Amendment

A

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

Offense specific

65
Q

14th Amendment

A

requires that confession be voluntary

66
Q

Admissibility of Co-defendant confession

A

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

67
Q

Grounds for attack

A

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

68
Q

Double Jeopardy

A

Attaches when jury is sworn or, if no jury, first witness is sworn

Does not apply to separate sovereigns

69
Q

Exceptions to Double Jeopardy

A

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

70
Q

5th Amendment Privilege Against Self-Incirimination

A

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

71
Q

Pre-trail disclosure requirements

A

P = must disclose material, exculpatory evidence

D= must disclose use of alibi or insanity

72
Q

When is there a Right to Jury Trial?

A

Right if maximum authorized sentence > 6 months

73
Q

jury Voting Requirements for Conviction

A

If 6 jurors –> must be unanimous

If 12 jurors –> 9-3 is enough (but usually still unanimous)

74
Q

Death Penalty cases

A

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

75
Q

Plea Deals

A

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.

Constitutional Law (4 decks)

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