Criminal Law/Procedure

Question 1

Defense of Others

Answer 1

If self-defense is appropriate for an individual, a bystander employing defense of that individual will have the defense of self-defense available

Question 2

Justification:

Answer 2

the justification defenses arise when society has deemed that although the defendant committed a proscribed act, they should not be punished because the circumstances justify the action. These defenses are self defense, defense of others, and defense of property.

Question 3

Self Defense

Answer 3

– Self-defense is a complete defense to a crime, and is justified when the defendant reasonably believes they are in imminent danger of harm.

Question 4

Duress:

Answer 4

A person is excused from a crime if the were under duress. Duress is acting with the reasonable belief of threat of great bodily harm or death

Question 5

M’Naghten Test

Answer 5

a mental disease exists where the defendant is a) unable to know the physical nature or quality of their acts or b) unable to understand their act was morally wrong.

Question 6

Modern Penal Code

Answer 6

mental disease where the defendant is a) unable to appreciate the criminality of conduct or b) unable to conform his actions to law. (M’Naghten and Irresistible Impulse Combined)

Question 7

Irresistible Impulse Tes

Answer 7

defendant’s mental illness made them a) unable to control their actions or b) unable to conform their actions to the law.

Question 8

Durham Test

Answer 8

unlawful conduct was the product of mental illness.

Question 9

Involuntary Manslaughter

Answer 9

A killing is involuntary manslaughter if: a killing caused by criminal negligence or recklessness (criminal negligence requires a greater deviation from the reasonable person standard than what is required for civil liability), or if caused by an unlawful act, including in the course of a misdemeanor or in the course of a felony that does not qualify for a felony murder case.

Question 10

Felony Murder Rule

Answer 10

A felony murder is a killing that is committed during the course of a dangerous felony, to include, burglary, rape, robbery, arson and kidnapping.

Question 11

First Degree Murder

Answer 11

Killing of another that is deliberate and premeditated. If the defendant made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even if only for a brief period, then it is first degree murder.

Question 12

Voluntary Manslaughter

Answer 12

– Intentional killing, however with adequate provocation. Adequate provocation exists if the defendant was provoked (sudden intense passion causes them to lose control), a reasonable person would have been provoked, there was not enough time to cool off and the defendant did not cool off.

Question 13

Attempt

Answer 13

A person had the specific intent to commit a crime and took a substantial step sufficiently beyond mere preparation, however, fails to complete the crime. MPC requires a “substantial step.” Merges with the underlying crime

Question 14

• Abandonment

Answer 14

Not a defense to attempt at common law nut under the MPC must be fully voluntary and complete abandonment is a defense.

Question 15

Withdrawal

Answer 15

Gennerally not a defense from the conspiracy because the conspiracy is complete as soon as the agreement is made and an act in furtherance is performed. Withdrawal may be a defense to the crimes committed in furtherance of the conspiracy.

Question 16

Embezzlement

Answer 16

Fraudulent conversion of personal property of another by a person in lawful possession of the subject property.

Question 17

Larceny

Answer 17

The taking and carrying away of property of another, without the owner’s permission, with the intent to permanently deprive the owner of subject property.

Question 18

Larceny by Trick

Answer 18

Obtaining possession of the property of another by a knowing false statement of fact with intent to defraud.

Question 19

Larceny by False Pretenses

Answer 19

Obtaining title to the property of another by a knowing false statement of fact with intent to defraud the other.

Question 20

Burglary

Answer 20

The breaking and entering the dwelling house of another at night with the intent to commit a felony therein. If you think you are retrieving your property, no intent, does not need to be reasonable. Does not merge with larceny, and MPC jurisdictions often waive the nighttime and dwelling house elements of the crime

Question 21

Robbery

Answer 21

Wrongful taking of another’s property from a person or their presence through force or threat of injury with the intent to permanently deprive them of their property.

Question 22

Accomplice Liability Attachment

Answer 22

Liability may attach with only words of encouragement 1) with the intent to assist the principal and the intent that the principal commits the crime 2) actually aids, counsels, or encourages the principal before or during the commission of the crime.

Question 23

Accessory After the Fact

Answer 23

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 be a felony and it must be completed at the time the aid is rendered. This liability ceases once the principal reaches refuge

Question 24

Burden of Proof

Answer 24

Prosecution must prove every element of a crime beyond a reasonable doubt.

Question 25

Double Jeopardy

Answer 25

Prevents a D from being prosecuted twice for the “same offense”.
- Under Blockburger test, two crimes are NOT same offense if each crime requires proof of a fact which the other does not. Jeopardy attaches when jury is impaneled and sworn.
- Exceptions: (1) hung jury, (2) manifest necessity to end trial, (3) terminate trial at D’s request and not acquittal on the merits.

Question 26

Plain View Doctrine

Answer 26

may seize items if (1) observed with any of 5 senses in plain view, (2) from a place lawfully permitted to be, AND (3) probable cause to believe the items are evidence of a crime or contraband.

Question 27

4th Amendment Reasonable Expectation of Privacy

Answer 27

A person has a reasonable expectation to privacy where there is a physical intrusion by the government into a constitutionally protected area to obtain information. There is no reasonable expectation to privacy in things held out to the public, such as conversations. Courts have held that individuals have a reasonable expectation of privacy in that of which they own or possess. Overnight guests have this right to privacy. Owners of highly regulated industries have a lower expectation of privacy.

Question 28

Search and Seizure

Answer 28

Under the 4th Amendment applicable to the states via the 14th, government action shall not violate people’s right to be secure against unreasonable searches and seizures. Acts by private individuals are not protected by the 4th Amendment.

Question 29

Warrantless Arrest:

Answer 29

An arrest occurs when the police takes a person into custody against their will for purposes of criminal prosecution or interrogation. An officer however can make an arrest without a warrant if the arrest is based upon probable cause, or reason to believe that the person has committed a crime.

Question 30

Exigent Circumstances

Answer 30

A warrantless search or seizure is authorized when there is reasonable apprehension the delay required to obtain a warrant will result in immediate danger of evidence destruction, the safety of the officer or public, or a defendant is likely to flee before a warrant can be obtained. This allows for hot pursuit, where police can chase a suspect into a private dwelling.

Question 31

Miranda Rights

Answer 31

Miranda rights attach only when there is a custodial interrogation of a suspect. A person is in custody when they reasonably believe they are not free to leave. A person is subject to interrogation when the police know or should know their conduct was likely to elicit an incriminating response. When invoking or waiving a Miranda right, the statement must be clear and unambiguous. The defendant must know they are being interrogated by the government in order for Miranda to apply

Question 32

• Miranda Rights Expiration

Answer 32

A detainee’s rights last the entire time the detainee is in custody for interrogation purposes, plus 14 days after the detainee resumes their normal life. A prisoner’s normal life is in prison, so a detainee can be taken from prison and re-questioned two weeks after their last custodial interrogation. If they invoke the right to remain silent, a reasonable time must pass

Question 33

5th Amendment Right to Counsel

Answer 33

– Once Miranda rights are invoked the police must stop questioning. However, a custodial interrogation may be reinitiated if: (1) the suspect has been re-advised of their 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