Criminal Law & Procedure

Question 1

Guilty Plea

Answer 1

A guilty plea is a waiver of the 6th Amendment right to a jury trial. To be a valid waiver, the judge must determine on the record that the guilty plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.

To ensure this, the judge should make sure that D is informed of the nature of the charge to which the plea is offered, of the maximum possible penalty, that she has a right not to plead guilty, and that by pleading guilty she waives her right to a trial.

Question 2

Accessory after the fact

Answer 2

An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction.

The crime committed by the principal must have been completed at the time aid is rendered.

–Unlike an accomplice, an accessory after the fact has committed a separate crime with a punishment unrelated to the felony committed.

Question 3

Accessory

Answer 3

Someone who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of a crime.

Question 4

What is the effect of a statute that is intended to protect members of a limited class from exploitation or overbearing?

Answer 4

If a statute is intended to protect members of a limited class from exploitation or overbearing, members of that class are presumed to have been intended to be immune from liability, even if they participate in the crime in a manner that would otherwise make them liable.

One of the implications of the common law requirement that there be at least two guilty parties in a conspiracy arises when the crime involves members of a class protected by the statute. If members of a conspiracy agree to commit an act that violates a statute designed to protect persons within a given class, a person within that class not only cannot be guilty of the crime itself, as discussed above, but also cannot be guilty of a conspiracy to commit the crime.

Question 5

Self-Defense

Answer 5

A person is entitled to use such force as he reasonably believes is necessary to protect himself against the use of unlawful force on himself.

–One has no duty to retreat before using non-deadly force.

Question 6

Battery

Answer 6

Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.

–Battery is NOT a specific intent crime; criminal negligence meets the state of mind requirement for battery.

Question 7

Is the grand jury testimony of an unavailable declarant admissible as former testimony against the accused at trial?

Answer 7

The grand jury testimony of an unavailable declarant is not admissible as former testimony against the accused at trial. This is because grand jury proceedings do not provide the opportunity for cross-examination.

Question 8

Murder (Common Law)

Answer 8

At common law, murder is the unlawful killing of a human being with malice aforethought.

“Malice aforethought” exists if the defendant has any of the following states of mind: (i) the intent to kill (express malice); (ii) the intent to inflict great bodily injury; (iii) a reckless indifference to an unjustifiably high risk to human life (“abandoned and malignant heart”); or (iv) the intent to commit a felony.

Question 9

Involuntary Manslaughter

Answer 9

Involuntary manslaughter is a killing committed with criminal negligence or during the perpetration of some unlawful act not encompassing a felony for felony murder.

Question 10

Voluntary Manslaughter

Answer 10

Voluntary manslaughter is a killing committed under the duress of an adequate provocation, and it requires:

(i) a provocation sufficient to arouse the sudden and intense passion in the mind of an ordinary person such as to cause him to lose self-control;
(ii) the defendant to be in fact provoked;
(iii) an insufficient time to cool off; and
(iv) the defendant did not in fact cool off.

Question 11

Embezzlement

Answer 11

Embezzlement is the fraudulent conversion of the property of another by a person in lawful possession of it.

Question 12

Larceny

Answer 12

Larceny is the taking and carrying away of the property of another by trespass with the intent to permanently deprive the person of the property.

–The intent to permanently deprive must be concurrent with the taking and carrying away.

Question 13

Larceny by trick

Answer 13

Larceny by trick is a specialized form of larceny. For larceny by trick, the defendant must acquire POSSESSION of the property by some misrepresentation concerning a present or past fact.

Question 14

False Pretenses

Answer 14

The crime of false pretenses is the obtaining of TITLE to the property of another by an intentional (or knowing) false statement of past or existing fact with the intent to defraud.

Question 15

What is the MPC’s test for insanity?

Answer 15

Pursuant to the Model Penal Code, a defendant is entitled to acquittal if he suffered from a mental disease or defect and as a result lacked substantial capacity to either: (i) appreciate the criminality of his conduct; or (ii) conform his conduct to the requirements of law.

–Note that the Model Penal Code test combines the M’Naghten and irresistible impulse tests.

Question 16

Durham Test

Answer 16

A defendant is entitled to acquittal if his crime was the product of mental disease or defect.

Question 17

M’Naghten Rule

Answer 17

Provides for acquittal if 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:

(i) know the wrongfulness of his actions; or
(ii) understand the nature and quality of his actions.

Question 18

Irresistible Impulse Test

Answer 18

Provides for acquittal if, because of mental illness, the defendant was unable to control his actions or to conform his conduct to the law.

Question 19

Attempt

Answer 19

An attempt requires the intent to commit the completed offense and an act beyond mere preparation for the offense.

–Under the modern view, an overt act that is ‘substantial step’ toward completing the offense is sufficient for intent.

–Traditionally, under common law, courts used the proximity test, requiring an act that is dangerously close to success.

Question 20

Accomplice

Answer 20

To be convicted as an accomplice under the prevailing rule, a person (1) must have given aid, counsel, or encouragement with the intent to aid or encourage the principal, and (2) the intent that the principal commit the substantive offense.

Note: Mere knowledge that a crime would result from the aid provided is generally insufficient for accomplice liability.

Question 21

Robbery

Answer 21

Robbery is an aggravated form of larceny and consists of the following elements: (i) a taking; (ii) of the personal property of another; (iii) from the other’s person or presence; (iv) by force or intimidation; (v) with the intent to permanently deprive him of it.

Question 22

Duress

Answer 22

A person is not guilty of an offense, other than intentional homicide, if he performs an otherwise criminal act under the reasonable belief that another will imminently inflict death or great bodily harm on him or an immediate family member if he does not commit the criminal act.

Question 23

Who can claim a reasonable expectation of privacy for Fourth Amendment purposes?

Answer 23

To raise a Fourth Amendment claim of an unreasonable search or seizure, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. It is not enough merely that someone has an expectation of privacy in the place searched.

The Court has held that a person has a reasonable expectation of privacy any time:

(i) she owned or had a right to possession of the place searched;
(ii) the place searched was in fact her own home, whether or not she owned or had a right to possession of it; or
(iii) she was an overnight guest of the owner of the place searched.

Question 24

Liability of a Co-Conspirator

Answer 24

A defendant may, by virtue of her participation in a conspiracy, be liable for the crimes of all other conspirators if the crimes were committed in furtherance of the objectives of the conspiracy and were a natural and probable consequence of the conspiracy (i.e., were foreseeable).

Question 25

When does a Defendant voluntarily waive his Miranda rights?

Answer 25

Miranda v. Arizona requires that a person in custody be informed of his right to remain silent and his right to the presence of an attorney during questioning. A suspect may subsequently waive his rights by making a confession, as long as the waiver was knowing and voluntary.

Question 26

The Blockburger Rule

Answer 26

Under the Blockburger rule, two crimes do not constitute the same offense if EACH crime requires proof of an ADDITIONAL element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes.

Question 27

When does jeopardy attach in a jury trial?

Answer 27

Jeopardy attaches in a jury trial at the empaneling and swearing of the jury.

Question 28

When does jeopardy attach in a bench trial?

Answer 28

In bench trials, jeopardy attaches when the first witness is sworn.

Question 29

Double Jeopardy

Answer 29

Under the 5th Amendment, a person may not be retried for the same offense once jeopardy has attached.

–Note: However, separate sovereigns CAN try a defendant for the same offense. Attachment does not matter if there are two separate sovereigns.

–Also, an exception to the double jeopardy bar exists if unlawful conduct that is subsequently used to prove the greater offense: (1) has not occurred at the time of prosecution for the lesser offense, or (2) has not been discovered despite due diligence. [similarly, a retrial for murder is permitted if the victim dies after attachment of jeopardy for battery]

Question 30

Mistake Or Ignorance of Fact

Answer 30

Mistake or ignorance of fact is relevant to criminal liability ONLY if it shows that D lacked the state of mind required for the crime; thus, it is irrelevant if the crime imposes “strict” liability.

–If mistake is offered to “disprove” a specific intent, the mistake need not be reasonable.

–However, if mistake is offered to disprove any other state of mind, it must have been a reasonable mistake or ignorance.

Note: Don’t confuse mistake with factual impossibility.

–Mistake is usually raised as a defense to a crime that has been completed; a mistake of fact may negate the intent required for the crime.

–Whereas, impossibility arises only when D has failed to complete the crime b/c of his mistaken belief about the facts, and is being charged with an attempt to commit the crime; factual impossibility is NOT a defense to attempt.

Question 31

When must the “intent to commit a felony” element exist in assessing the facts for burglary?

Answer 31

The intent to commit a felony must exist at the time of entry. If such intent is formed after the entry is completed, common law burglary has not been committed.

Question 32

Define “Dwelling”

Answer 32

At common law the breaking and entry had to be of a dwelling. A structure is considered a dwelling if it is used regularly for sleeping. Such a structure remains a dwelling even if it is also used for other purposes, such as conducting a business.

Question 33

In considering a defendant accomplice, when can the death penalty not be imposed for felony murder?

Answer 33

The Supreme Court has held that, under the Eighth Amendment, the death penalty may not be imposed for felony murder where the defendant, as an accomplice, did not take or attempt or intend to take life, or intend that lethal force be employed.