Criminal Law & Procedure Flashcards

Question

# Criminal Law & Procedure Solicitation

Answer 1

Occurs when: 1. D incites, counsels, advises, asks, urges, or commands another person to commit a crime 2. With intent that the crime be committed by that person. . **No defense** even if crime not committed . Solicitation merges into completed crime (cant be charged with both)

Answer 2

1. Defendant encourages or assists (Aid, advise, encourage) 2. Another person who commits a crime 3. With the intent to promote or facilitate the commission of the crime. . Defendant is **liable** for all foreseeable acts/crimes of the other person

Answer 3

One who: 1. Receives, relieves, comforts, or assists another 2. Knowing that they have committed a felony 3. With the purpose to help the felon escape arrest, trial, or conviction.

Answer 4

1. Expressed or Implied agreement among two or more persons to commit a crime, 2. Intent to enter into an agreement 3. Intent to achieve object of agreement 4. (Required by most states) An overt act in furtherance (including mere preparation)

Answer 5

1. Self-Defense 2. Defense of Others 3. Duress 4. Mistake of Fact 5. Intoxication 6. Insanity 7. Other Defenses (Infancy, Defense of Property, Crime Prevention, Use of Force to Effectuate Arrest, Entrapment)

Answer 6

**_Non-Deadly Force_** Person without fault may use such force as they reasonably believe is necessary to protect themself from imminent use of unlawful force on their person. (No duty to retreat) . **_Deadly Force_** A person may use deadly force in self defense if: 1. They are without fault (did not initiate) 2. Is confronted with unlawful force, _AND_ 3. Reasonably believes they are threatened with imminent death or great bodily harm. **Duty to Retreat** Majority View: No Duty to Retreat Minority View: Duty to Retreat _only_ if it can be done safely. No duty to retreat in home or business. . **_Defense of Others_** Defendant must reasonably believe the other person is legally entitled to use force and may only use reasonable force to prevent it. **discuss whether the defendend person could claim self-defense**

Answer 7

Defendant must have a **reasonable belief** that their criminal conduct was necessary to **avoid greater harm to society** . Defendant cannot be at fault in creating the necessity. . Killing is **never** reasonable

Answer 8

Requires: 1. A **threat** 2. That the defendant **reasonably believes** threatens death or great bodily harm. . Duress is _not_ a defense to **homicide**

Answer 9

A reasonable mistake of fact may negate the mental state required for some crimes

Answer 10

1. Government Conduct 2. Standing (REOP) 3. (if stop, then) Stop & Frisk 4. Validity of Warrant 5. Warrant Exceptions

Answer 11

Violations of the Fourth Amendment require some type of government conduct. Where police direct a private citizen to act on their behalf, the citizen's conduct constitutes government conduct.

Answer 12

Defendant must have standing to contest search or seizure, which requires a Reasonable Expectation of Privact (REOP): 1. Defendant had a **subjective** (actual) expectation of privacy, _AND_ 2. Society **objectively** considers there to be privacy in the thing or place searched or seized.

Answer 13

Police may search someone incident to lawful arrest, otherwise *Terry* applies: . **_Terry_ / Stop & Frisk** Police may perform a "frisk," or a pat down of the outside of a suspect's clothing and bags to determine if they are carrying a weapon when police can show: 1. **Reasonable Suspicion** 2. Supported by **Articulable Facts** 3. That **crime is afoot** . **Police Checkpoints** 1. Roadblocks to stop **cars** 2. Without **individualized suspicion** (neutral, articulable standard) 3. Roadblock designed to serve purpose closely related to particular problems pertaining to cars (sobriety, border, etc)

Answer 14

If a **search** occurs, discuss **existence** and **validity** of warrant. **_Validity of Warrant_** 1. Based on **probable cause** 2. Describes the **place and things** to be searched 3. With **reasonable particularity** . No **willfully false statements**

Answer 15

**(1) Consent** * Knowing * Voluntary * Intelligent * With actual or reasonably believes Authority . **(2) Cars** * Probable Cause * That vehicle contains evidence of crime * May search anywhere that **may contain contraband** * Does **not apply** to cars on **curtilage** . **(3) Plain View Doctrine** * Officer had a right to be there * Evidence in plain view * Probable Cause to believe evidence . **(4) Inventory Search** * Legitimate arrest * Booked pursuant to **established procedure** . **(5) Exigent Circumstances** * Threat that evidence will be **destroyed** * Law enforcement **did not** create the exigent circumstances . **(6) Community Caretaking** * Police may enter w/o warrant * Emergency situation * Involving health of evidence of imminent suicide . **(7) Hot Pursuit** **(8) Search Incident to Lawful Arrest** 1. Lawful arrest Requires warrant **UNLESS** * Officer sees person committing felony _or_ has probable cause * Officer sees person committing misdemeanor 2. Scope of Search * Search in connection with arrest, or immediately after arrest * Area searched is within **grabbing distance** of arrestee (protective purpose of search) 3. Arrestee Secured Once arrestee secured, Officer must have * **Reasonable belief** of _evidence_ * of the offense for which arrested 4. Accomplices/Protective Sweep * **Reasonable belief** * **Articulable Facts** * **Accomplices nearby**

Answer 16

1. 14th Amendment 2. 6th Amendment 3. 5th Amendment 4. Identification Procedures 5. Informants 6. Confrontaton Clause/Co-Defendant Confessions

Answer 17

14th Amendment Due Process Clause requires valid confessions to be: 1. **Voluntary** (not coerced) 2. Based on the **totality of circumstances**

Answer 18

The 6th Amendment guarantees a **right to counsel** at 1. All _critical stages_ of _prosecution_ 2. _ONCE_ adversarial proceedings have begun (charges filed) Police cannot **deliberately illicit** incriminating information outside the presence of counsel unless defendat waives right (**offense specific**)

Answer 19

The 5th Amendment guarantees: 1. The privilege against self-incrimination, _AND_ 2. Right to counsel during custodial interrogation . **_Miranda Warnings_** Before a **custodial interrogation** defendant must be given Miranda Warning . **Custody** Defendant is 1. Not free to leave, _OR_ 2. Reasonably believes they are not free to leave . **Interrogation** Any **statement** or **conduct** reasonably likely to elicit an incriminating response . . **_Reinitiation of questioning_** If defendant **invokes right to remain silent**, questioning can only be reinitated **after reasonable amount of time** _AND_ for a **separate crime** . If defendant **invokes right to counsel**, questioning may not be reinitative **without counsel present**, _UNLESS_ defendant reinitiates (_OR_ 14 day "back to normal life" + remirandize) . Defendant may **waive** (K + V) right to silence or counsel at any time after invocation

Answer 20

**_6th Amendment Right to Counsel_** Only applies at **post-charging** line-ups (offense specific) . **_14th Amendment Due Process_** Requires: 1. Procedure cannot be **unreasonably suggestive**, _AND_ 2. No **substantial likelihood** of **misidentification** . **_Subsequent Identification_** Fruit of the poison tree excludes subsequent identifications if they result from a tainted procedure.

Answer 21

**_5th Amendment_** *Miranda* warning **not required** when **unknown informant** conducts interrogation . **_6th Amendment_** 6th Amendment right to counsel is violated when: 1. Government informant paid, promised, or otherwise acting as government agent 2. Defendant has been charged (post-charge), _AND_ 3. The informant actively asks questions designed to elicity statements regarding the charged crime.

Answer 22

The confrontation clause is implicated where a codefendant confession is used against defendant. They are admissible where: 1. The statement concerning defendant are **redacted** _OR_ 2. The co-defendant is subject to **cross-examination**

Answer 23

The exclusionary rule prohibits introduction of evidence in violation of the 4th, 5th, or 6th Amendments, _UNLESS_ prosecution shows police acted under **good faith belief** they were acting lawfully or pursuant to valid warrant. . Illegally obtained evidence is admissible for **impeachment** . . **_Fruit of the Poisonous Tree_** Evidence obtained via unconstitutional means must be excluded, _UNLESS_, cost of excluding outweighs **deterrent effect** on police. . **Exceptions:** 1. **Inevitable Discovery**: Police would have discovered the evidence even without unconstitutional act 2. **Independent Source**: Prosecutor can show it was obtained independent of unconstitutional act 3. **Attenuation**: Connection between unconstitutional act and evidence is remove or was interrupted by intervening circumstances (breaks causal link) 4. **Miranda Violations** do not create fruits of poisonous tree 5. **Knock & Announce violations**

Answer 24

1. Right to Speedy Trial 2. Bail 3. Pleas 4. Ineffective Assistance of Counsel 5. Right to Testify 6. Right to Represent Self

Answer 25

Attaches at **charges** Consider: 1. Length of Delay 2. Reasons for Delay 3. Whether Defendant asserted right to speedy trial (did not request delay) 4. Prejudice to Defendant . **Remedy** = Dismissal with prejudice

Answer 26

Under the 8th Amendment, the accused in entitled to bail in non-capital cases in an **appropriate amount** designed to make it unlikely the defendant will flee

Answer 27

Pleas must be **voluntary** and **intelligently** made. Judge must advise defendant **personally** of: 1. Nature of Charge 2. Critical Elements of Offense 3. Max possible penalty & any Mandatory Minimums 4. Right to Plead Not Guilty and that Pleading Guilty waives Jury Trial Right 5. Advice must appear **on record**

Answer 28

Defendant must show: 1. Attorney's exercise of judgment and representation fell **significantly below** reasonable standard of car, _AND_ 2. **but-for** this failure, defendant would not have been convicted --> Analyze **likelihood of success** . **Failure to seek bail** is likely ineffective assistance of counsel

Answer 29

Defendant has a right to testify based on the 5th Amendment due process right to a fair trial. . Defendant's lawter cannot prevent her from testifying.

Answer 30

On Defendant's request, the court must determine 1. Whether Defendant's request to represent self is **knowing** and **intelligent** (rational and factual understanding of proceeding) _AND_ 2. Whether defendant is **competent** to represent self.

Answer 31

Due process requires a right to be free of double jeopardy for the same offense. . attaches at the **empaneling and swearing in of jury**, _OR_ (in bench trial) when **first witness sworn in** (not grand jury or prelim hearing) . **_Exceptions_** 1. Hung Jury 2. Mistrial 3. Retrial after sucessful appeal by defendant 4. Breach of plea bargain agreement On retrial, defendant cannot be charged with more serious offense from same conduct. . **_Same Offense_** Two crimes are _not_ the "same offense" where each crime requires proof of an **additional element** that the other crime does not require. . **_Separate Sovereigns_** A person may be tried for the same conduct by two different states or by a state and the federal government