Criminal Law & Procedure

Question 1

What are the elements of a crime?

Answer 1

Elements:

1) Physical act (actus reus);
2) Mental State element (mens rea);
3) Causation (actual and proximate cause); AND
4) Concurrence (mental state and physical act occur at the same time).

Priority: HIGH

Question 2

When is an Omission to act considered a crime?

Answer 2

1) The defendant had a legal duty to act;
2) The defendant had knowledge of facts concerning the duty to act; AND
3) It was reasonably possible for the defendant to act.

Priority: Medium

Question 3

What does Causation require?

Answer 3

It requires both:
1) Actual causation (but for); AND
2) Proximate cause (it was foreseeable that the injury would have occurred from the defendant’s physical act).

Priority: HIGH

Question 4

What is a Superseding Intervening Cause?

Answer 4

It is a third-party’s act that breaks the chain of causation. This normally cuts off the defendant’s liability.

An act will ONLY break the chain if the force was:
1) Independent of the defendant’s wrongful conduct; AND
2) Not foreseeable.

Priority: HIGH

Question 5

What is the Simultaneous Acts Rule?

Answer 5

A person’s acts will still be the proximate cause of a resulting injury if his wrongful conduct created a condition of peril.

A wrongful act that accelerates death is still the legal cause of death, even if the person was going to die eventually.

Priority: HIGH

Question 6

Under the Common Law, what mental state categories were used?

Mental states under the Model Penal Code?

Answer 6

Common Law: Specific Intent, General Intent, Malice, & Strict liability.

MPC: Purposefully, Knowingly, Recklessly, & Criminal Negligence.

*Willful Blindness Standard: A person acts knowingly when they are aware that certain facts are highly probable OR are intentionally ignorant of them.

Priority: HIGH

Question 7

Murder

When is a Malice Aforethought killing established?

Answer 7

Upon a showing of:

a) An intent to kill;
b) An intent to inflict great bodily injury;
c) A reckless disregard of an extreme risk to human life;
OR
d) An intent to commit an inherently dangerous felony under the felony murder rule.

Priority: HIGH

Question 8

Murder

Second Degree Murder
vs.
First Degree Murder

Answer 8

Second Degree Murder: The unlawful killing of a person with malice aforethought.

First Degree Murder: Occurs when the killing was deliberate AND premeditated.

Priority: HIGH

Question 9

Murder

Murder under the Model Penal Code (MPC)

Answer 9

The killing of a person either:
a) Committed purposely/knowingly; OR
b) Recklessly under circumstances manifesting an extreme indifference to the value of human life.

*Recklessness and indifference are presumed if the killing occurred during the commission of or an attempt to commit a dangerous felony (Felony Murder Rule).

Priority: HIGH

Question 10

Murder

Felony Murder Rule

Answer 10

A person is guilty of murder if a person is killed during their:
a) Commission of (or attempt to commit) a dangerous felony; OR
b) Felony escape.

*Dangerous felony = robbery, rape, arson, burglary, kidnapping

Priority: HIGH

Question 11

What is Voluntary Manslaughter?

Answer 11

An intentional killing of a person with adequate provocation.

Adequate provocation is established if:
1) The defendant was provoked;
2) A reasonable person would have been provoked;
3) There was not enough time to cool off before the killing;
AND
4) The defendant DID NOT cool off before the killing.

Priority: HIGH

Question 12

What is Involuntary Manslaughter?

Answer 12

An unintentional killing of a person committed:

a) Recklessly;
b) Under the Misdemeanor Murder Rule; OR
c) During a non-dangerous felony.

Priority: HIGH

Question 13

What is Manslaughter under the Model Penal Code (MPC)?

Answer 13

The killing of a person:
a) Committed recklessly; OR
b) Which would otherwise be murder, but is committed under the influence of extreme mental or emotional disturbance.

*The MPC doesn’t distinguish between voluntary/involuntary manslaughter.

Priority: HIGH

Question 14

What are the elements of Larceny?

Answer 14

The:
1) Trespassory taking,
2) And carrying away,
3) Of the personal property of another,
4) With the intent to permanently deprive the owner of the property.

*Larceny by Trick = when one obtains possession of another’s property by trick or deception.

Priority: HIGH

Question 15

What are the elements of False Pretenses?

Answer 15

It occurs when one:

1) Obtains title,
2) To personal property of another,
3) Through a known false statement of material fact,
4) With the intent to defraud.

*Opinion or commercial puffery is NOT false pretenses.

Priority: HIGH

Question 16

What are the elements of Embezzlement?

Answer 16

1) The fraudulent or wrongful,
2) Conversion,
3) Of personal property of another,
4) By a person with lawful possession of the property.

Priority: HIGH

Question 17

What are the elements for the crime of Receiving Stolen Property?

Answer 17

When a person:
1) Receives possession of stolen property,
2) Who knows the property is stolen at the time of receiving it, AND
3) With the intent to permanently deprive the owner of the property.

Priority: HIGH

Question 18

What are the elements of Robbery?

Answer 18

1) The trespassory taking and carrying away,
2) Of the personal property of another person,
3) In their presence;
4) By the use of force or threat of immediate physical harm,
4) With the intent to permanently deprive the owner of the property.

*Armed robbery requires the elements above, PLUS the use of a dangerous weapon.

Priority: Medium

Question 19

What are the elements of Burglary?

Answer 19

Burglary is:
1) The breaking and entering,
2) Of a dwelling,
3) Of another,
4) At night,
5) With the INTENT to commit a felony inside.

*Most jurisdictions have extended burglary to any structure at any time.

Priority: HIGH

Question 20

Under the Common Law, what are the elements of Rape?

Answer 20

1) The unlawful sexual intercourse,
2) Of a woman by a man (not her husband),
3) Without her consent.

*Under the common law, a husband could not be convicted of raping his wife. The modern definition now contains marital rape.

Priority: Medium

Question 21

Rape

When is there a Lack of Effective Consent?

Answer 21

When:
a) Actual force is used;
b) Threats of immediate great bodily harm are used;
c) The victim is incapable of consenting; OR
d) The defendant fraudulently caused the victim to believe that the act is not intercourse.

Priority: Medium

Question 22

Under the MPC, when is a man guilty of rape?

Answer 22

If:
a) He compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain, or kidnapping;
b) He has substantially impaired her power to consent by secretly drugging her;
c) The female is unconscious; OR
d) The female is under 10 years old.
*Deviate sexual intercourse is gender neutral and has the same elements as above.

Priority: Medium

Question 23

What are the elements of Statutory Rape?

Answer 23

1) The unlawful sexual intercourse,
2) With a person,
3) Under the age of consent, regardless of whether it’s against the person’s will.

*This is a Strict Liability crime.

Priority: Medium

Question 24

What are the elements of Kidnapping (under the MPC and Common Law)?

Answer 24

Kidnapping is:

Common Law: Confining, restraining, or moving a person, without authority of law.

MPC: An abduction of another person to:

a) Compel a third person to pay ransom;
b) Facilitate the commission of a felony;
c) Inflict bodily injury or terrorize a victim; OR
d) Interfere with the performance of a political function.

Priority: Medium

Question 25

What are the elements of False Imprisonment?

Answer 25

The:
1) Unlawful,
2) Confinement of a person,
3) Against their will,
4) With knowledge that the restriction is unlawful.

MPC: Knowingly restraining another person unlawfully so as to substantially interfere with the person’s liberty.

Priority: Medium

Question 26

What are the elements of Arson?

Answer 26

The:
1) Malicious,
2) Burning,
3) Of a dwelling,
4) Of another.

*Under the Common Law, a person could not be convicted of arson if it was their own home.

Priority: Medium

Question 27

What are the elements of Criminal Possession?

Answer 27

It involves the unlawful possession of an item according to a jurisdiction’s statute.

To be found guilty, a person must have both:
1) Knowledge of the possession; AND
2) Knowledge of what the item is.

Priority: Medium

Question 28

When is a person guilty of Attempt?

Answer 28

If the person:
1) Had the specific intent to commit a crime; AND
2) Took an overt act sufficiently beyond mere preparation.

*Most states & the MPC require the overt act be a substantial step.
In a minority of states, the overt act must be proximate or dangerously proximate to the crime.

Priority: Medium

Question 29

What are the elements of Conspiracy?

Answer 29

1) An express or implied agreement between two or more people;
2) Intent to enter into the agreement;
3) Intent to pursue an unlawful objective; AND
4) The commission of an overt act in furtherance of the unlawful objective.

*Co-conspirators are liable for both the conspiracy itself AND all foreseeable crimes committed by other conspirators in furtherance of the objective.

Priority: Medium

Question 30

What are the elements of Solicitation?

Answer 30

A person is guilty if:
1) He requests another person to commit a crime;
2) With the specific intent that the crime be committed;
AND
3) The other person receives the request.

Priority: Medium

Question 31

Who is an Accomplice?

What are they liable for?

Answer 31

An accomplice is a person who:
1) Aids, abets, or facilitates the commission of a crime;
AND
2) Has dual intent (intent to assist and intent the crime is committed).

An accomplice is liable for ALL crimes he committed/assisted, AND all foreseeable crimes committed by the principal.

Priority: Medium

Question 32

What limitations exist to Accomplice liability?

Answer 32

First: Merely being present while a crime is committed will NOT create liability.

Second: A person cannot be convicted if they are a member of the class of persons protected by the criminal statute OR the crime inherently involves several types of participants and the person is not criminally liable under the statute.

Third: A minority of jurisdictions DO NOT allow accomplice liability for involuntary manslaughter.

Priority: Medium

Question 33

When is Withdrawal a valid defense to Accomplice Liability?

How is it accomplished?

Answer 33

It is valid ONLY if the accomplice withdraws involvement before the crime becomes unstoppable.

It can be accomplished by either:
a) Repudiating the encouragement given; OR
b) Neutralizing the assistance.

Priority: Medium

Question 34

When does the defense of Duress excuse a defendant’s conduct?

Answer 34

If the conduct was the result of:

1) A threat of imminent death or serious bodily injury,
2) To the defendant or another, AND
3) The defendant reasonably believed he was unable to avoid the harm by non-criminal conduct.

Priority: Medium

Question 35

What are the four Insanity tests?

Answer 35

1) The M’Naghten test.
2) The Model Penal Code test.
3) The Irresistible Impulse test.
4) The Durham test.

*A defendant will be acquitted if he meets the applicable insanity test of his jurisdiction.

Priority: HIGH

Question 36

Insanity

What is the M’Naghten Test?

Answer 36

1) A mental disease or defect; AND

2) That resulted in being:
a) Unable to know the wrongfulness of the conduct; OR
b) Unable to understand the nature and quality of the acts.

Priority: HIGH

Question 37

Insanity

What is the Model Penal Code Test?

Answer 37

As a result of a mental disease or defect, the defendant was:
a) Unable to appreciate the criminality of the conduct; OR
b) Unable to conform his actions to the law.

Priority: HIGH

Question 38

Insanity

What is the Irresistible Impulse Test?

Answer 38

Defendant’s mental illness made him:

a) Unable to control his actions; OR
b) Unable to conform his actions to the law.

Priority: HIGH

Question 39

Insanity

What is the Durham Test?

Answer 39

Defendant must show that his unlawful conduct was the product of mental illness.

Priority: HIGH

Question 40

Justification – Self-Defense

Deadly Force
vs.
Non-Deadly Force

Answer 40

Deadly Force is justified when: (1) the defendant kills another on a reasonable belief, (2) that he was in imminent danger of being killed or suffering great bodily injury, and (3) the use of deadly force was necessary to defend against the danger.

Non-Deadly Force is justified when: (1) the defendant reasonably believes, (2) that he is imminent danger of being harmed, and (3) the force used is proportional to the harm threatened.

Priority: Medium

Question 41

Justification – Self-Defense

What is Imperfect Self-Defense?

Answer 41

It’s when the defendant kills another based on a good faith belief that:

1) She was in imminent danger of being killed or suffering great bodily injury; AND
2) The use of deadly force was necessary to defend against the danger; BUT
3) At least one of those beliefs was unreasonable.

*This can reduce a murder charge to manslaughter.

Priority: Medium

Question 42

Voluntary Intoxication
vs.
Involuntary Intoxication

(as a defense)

Answer 42

Voluntary Intoxication: ONLY a defense to specific intent crimes if it negates the state of mind required to commit the offense.

Involuntary Intoxication: A defense to ALL crimes if the defendant is deemed insane at the time of the offense.

Priority: Medium

Question 43

What is required to challenge a Search and Seizure?

Answer 43

STANDING.
The challenger must have a reasonable expectation of privacy regarding the item or place searched.

*Courts have held that individuals have a reasonable expectation of privacy in that of which they own or possess.

Priority: Medium

Question 44

Arrests

When does Probable Cause arise?

Answer 44

It arises when the police officer has:

1) Trustworthy facts or knowledge,
2) Sufficient to warrant a reasonable person to believe,
3) That a crime has occurred.

*If in a public space, probable cause is all that’s required. If in someone’s home, a warrant is required to make an arrest.

Priority: Medium

Question 45

When may a police officer Stop and Inquire?

Answer 45

If the police officer:
1) Has reasonable articulable suspicion,
2) That criminal activity is afoot.

*Allows only a brief detention for questions, after which the suspect must be released.

Priority: Medium

Question 46

When may a police officer Stop and Frisk?

Answer 46

If the police officer:
1) Has reasonable articulable suspicion,
2) That criminal activity is afoot, AND
3) That the person has a weapon.

*Under the Plain Feel Doctrine, the officer may only seize items during the frisk that he reasonably believes is contraband or a weapon.

Priority: Medium

Question 47

What is required for a valid Search Warrant?

Answer 47

To be valid:
1) There must have been probable cause;
2) The warrant must state with particularity the place to be searched and the items to be seized; AND
3) It must be issued by a neutral and detached magistrate.

Priority: HIGH

Question 48

What are the exceptions that permit a Warrantless search and seizure?

Answer 48

1) Plain View doctrine.
2) Exigent circumstances.
3) Automobile exception.
4) Search incident to an arrest.
5) Consent.
6) Inventory searches.
7) Stop and Frisk.
8) Where the U.S. Supreme Court has concluded there is a special need.

Priority: HIGH

Question 49

Under the 14th Amendment Due Process Clause,
when will a Confession be excluded at trial?

Answer 49

A confession is inadmissible if it’s the product of police coercion that overbears the suspect’s free will.

*Courts will consider the characteristics of the interrogation AND the individual.

Priority: Medium

Question 50

What are the Miranda Warnings?

Answer 50

Miranda warnings inform suspects that:

1) They have the right to remain silent;
2) Anything they say can be used against them in court;
3) They have the right to talk to an attorney and have one present when they are questioned; AND
4) If they cannot afford one, an attorney will be provided to them.

*These rights only attach when there is a custodial interrogation of a suspect.

Priority: HIGH

Question 51

When may a custodial interrogation be reinitiated after the right to counsel has been invoked?

Answer 51

If:
1) The suspect has been re-advised of his Miranda rights;
2) Has provided a knowing and voluntary waiver; AND
3) Either:
a. Counsel is present,
b. The suspect initiates the communication; OR
c. At least 14 days have passed since the suspect was released from custody.

Priority: HIGH

Question 52

When does the accused have the Right to Counsel under the 6th Amendment?

When does it attach?

Answer 52

The accused has the right to counsel in ALL criminal prosecutions except in State misdemeanor prosecutions that do not carry a substantial risk of jail time.

This attaches once formal adversarial judicial proceedings have commenced.

*This right to counsel is offense-specific.

Priority: Medium

Question 53

What must a defendant show in order to prove Ineffective Assistance of Counsel?

Answer 53

They must show that:
1) His counsel’s performance was deficient; AND
2) But for the counsel’s errors, the result of the trial would have been different.

*If shown, the verdict is reversed and the defendant is entitled to a new trial.

Priority: Medium

Question 54

Under the Independent Source Rule, when is an in-court identification admissible at trial?

Answer 54

When:
1) The witness identified the defendant in-court based on the witness’s previous knowledge,
2) Which is trustworthy, AND
3) Was obtained by the witness in a previous transaction.

Priority: Medium

Question 55

When does the Exclusionary Rule NOT apply?

Answer 55

If:
a) The police had an independent source for the secondary evidence;
b) The discovery of the evidence would have been inevitable regardless of the illegality;
c) Through the attenuation doctrine; OR
d) The police relied in good faith on a defective search warrant.

Priority: HIGH

Question 56

What are the limitations on the Exclusionary Rule as applied to Miranda Violations?

Answer 56

Limitation #1: Failure to give warnings DOES not require suppression of the physical evidence.

Limitation #2: Statements made after Miranda warnings are admissible, UNLESS a non-mirandized statement was the result of coercive police tactics offensive to due process.

Limitation #3: Statements obtained in violation are inadmissible in the prosecution’s case-in-chief, BUT may be used to impeach a defendant on cross examination.

Priority: HIGH

Question 57

Double Jeopardy will bar separate prosecutions of a defendant arising out of the same offense.

When are crimes NOT deemed to be the “same offense”?

Answer 57

IF:

Each crime requires proof of a fact which the other does not.

Priority: Medium

Question 58

Double Jeopardy will bar separate prosecutions of a defendant arising out of the same offense.

What exceptions exist where a defendant can be retried?

Answer 58

Exceptions:

1) When the first trial ends in a hung jury;
2) When manifest necessity exists to end the original trial;
OR
3) When the original trial is terminated at the defendant’s request, and it’s not for an acquittal on the merits.

Priority: Medium

Question 59

Under the Harmless Error Rule, when will a guilty verdict stand on appeal?

Answer 59

It will stand if the prosecution can prove that the error (evidence in violation of the defendant’s constitutional rights was improperly admitted) was harmless because the defendant would have been convicted without the tainted evidence.

Priority: Medium

Question 60

When is a defendant competent to stand trial?

Answer 60

When he has:
1) Sufficient present ability to consult with his attorney;
AND
2) A rational and factual understanding of the proceedings against him.

*Must be able to assist in preparing his defense.

Priority: Medium