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Selected Topics (Part 1) > Criminal Law & Procedure > Flashcards

Criminal Law & Procedure Flashcards

1
Q

Criminal Law & Procedure - Theft Crimes

Theft Crimes

List

A
  1. Larceny
  2. Embezzlement
  3. False Pretenses/Larceny by Trick
  4. Robbery
  5. Receiving Stolen Property
  6. Forgery
  7. Extortion
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2
Q

Criminal Law & Procedure - Theft Crimes

Larceny

A

Larceny is the

  1. trespassory taking and carrying away of
  2. tangible personal property of another
  3. with the intent to permanently deprive the other of their interest in the property

.
Trespassory
A trespassory taking is a taking without consent
.
Carrying Away
Carrying away means to remove the item from where it was–even an inch
.
Intent
Intent is formed at or before the time of taking, unless continuing trespass.
.
.
Larceny is a lesser-included offense–cannot be charged with both Robbery and Larceny

NOTE: Intent can be formed after taking & carrying away

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3
Q

Criminal Law & Procedure - Theft Crimes

Embezzlement

A

Embezzlement is the
1. fraudulent conversion
2. of property of another
3. by a person in lawful possession of that property

.
Conversion
The embezzler was in a trust position, so any use inconsistent with the trust position is conversion

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4
Q

Criminal Law & Procedure - Theft Crimes

False Pretense & Larceny by Trick

A

Requires:
1. Defendant obtaining title (False Pretenses) or possession (Larceny by Trick)
2. To the property of another
3. By an intentional or knowingly false statement of past or existing fact
4. With the intent to defraud the other

.
Money
Money is not title until it is used for what the giver of the money intends

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5
Q

Criminal Law & Procedure - Theft Crimes

Robbery

A

Robbery is the
1. taking and carrying away
2. of personal property of another
3. from the other’s person or presence
4. by force or threat of force
5. with intent to permanently deprive other of interest in property
.
Larceny is a lesser-included offense–cannot be charged with both Robbery and Larceny

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6
Q

Criminal Law & Procedure - Theft Crimes

Receiving Stolen Property

A

Receipt of stolen property consists of
1. receiving possession and control of stolen property
2. known to be the fruit of a crime
3. by another person
4. with the intent to permanently deprive the true owner of the property

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7
Q

Criminal Law & Procedure - Theft Crimes

Forgery

A

Forgery is
1. making or altering
2. writing of apparent legal significance
3. so that it is false
4. with intent to defraud

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8
Q

Criminal Law & Procedure - Theft Crimes

Extortion

A

Extortion is the
1. obtaining of property or other things of value
2. by means of oral or written threats

.
Unlike robbery, there is no requirement of immediate harm and property need not be taken from the victim’s immediate presence

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9
Q

Criminal Law & Procedure - Crimes against Habitation

Burglary

A

Burglary is the
1. Breaking and
2. Entering
3. of the dwelling of another
4. in the night
5. with intent to commit a felony therein

.
Breaking
Breaking requires the use of any force, however slight, to gain entry without consent
.
Constructive Breaking & Entering–Fraud or Threat
Entry obtained by fraud or threat is constructive breaking and entering
.
Dwelling
Dwelling includes buildings within the curtilage

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10
Q

Criminal Law & Procedure - Crimes against Habitation

Arson

A

Arson is the
1. malicious burning
2. of the dwelling of another

.
Malice
Requires intent or reckless disregard. (General Intent)
.
Burning (Charring)
Burning must be by fire – charring is required, not just scorching
.
Dwelling
Dwelling includes buildings within the curtilage
.
Possession
Possession does not require ownership

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11
Q

Criminal Law & Procedure - Crimes against the Person

Crimes against the Person

List

A
  1. Criminal Assault (+ Aggravated Assault)
  2. Criminal Battery (+ Aggravated Battery)
  3. Mayhem
  4. False Imprisonment
  5. Kidnapping (+ Aggravated Kidnapping)
  6. Rape
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12
Q

Criminal Law & Procedure - Crimes against the Person

Criminal Assault
(+ Aggravated Assault)

A

Criminal Assault is the
1. attempt to commit a battery, or
2. intentional creation, other than mere words, of reasonable apprehension in the mind of the victim of imminent bodily harm

.
Aggravated Assault
1. use of a deadly weapon OR
2. intent to rape, main, or murder

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13
Q

Criminal Law & Procedure - Crimes against the Person

Criminal Battery
(+Aggravated Assault)

A

Criminal Battery is the
1. Unlawful application of direct or indirect force
2. to the person of another
3. resulting in
4. bodily injury or offensive touching

.
Aggravated Battery
1. Use of a deadly weapon,
2. serious bodily injury OR
3. the victim is a child, woman, or police officer

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14
Q

Criminal Law & Procedure - Crimes against the Person

Mayhem

A

Dismemberment or disablement of body part

Always discuss Battery

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15
Q

Criminal Law & Procedure - Crimes against the Person

False Imprisonment

A

False imprionment is
1. unlawful confinement
2. of a person
3. without the person’s consent

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16
Q

Criminal Law & Procedure - Crimes against the Person

Kidnapping
(+Aggravated Kidnapping)

A

Kidnapping is
1. the confinement of a person
2. that also involves either
3. (a) movement of the victim
4. (b) concealment of the victim in a secret place

.
Aggravated Kidnapping
Kidnapping is aggravated if its purpose is:
1. Ransom
2. commit other crimes
3. offensive (sexual offense), OR
4. child stealing

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17
Q

Criminal Law & Procedure - Crimes against the Person

Rape

A

At common law, rape is
1. Unlawful carnal knowledge
2. of a woman

.
Unlawful
Unlawful = without consent.
There is no consent if:
1. by force
2. by threat of immediate harm
3. victim is incapable of consent

.
Statutory Rape = Strict Liability, regardless of knowledge of age

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18
Q

Criminal Law & Procedure - Homicide

Homicide

List

A
  1. Murder
  2. First Degree Murder
  3. Voluntary Manslaughter
  4. Involuntary Manslaughter
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19
Q

Criminal Law & Procedure - Homicide

Murder

A

Common law murder is
1. Unlawful killing
2. Of a human being
3. With malice aforethough

.
Unlawful Killing
* Without justification
* Causation is implicitly established unless defendant not the direct killer.

.
Malice Aforethought
1. Intent to Kill
2. Intent to inflict great bodily harm
3. Intent to commit a felony
4. Reckless indifference to the unjustifiably high risk to human life.

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20
Q

Criminal Law & Procedure - Homicide

First Degree Murder

A

All murder is second degree murder UNLESS committed with:
1. Premeditation - Act committed after period of reflection, AND
2. Deliberation - Made decision in cool and dispassionate manner

.
First Degree Felony Murder
1. Burglary
2. Arson
3. Robbery
4. Rape
5. Kidnapping
6. Train robbery
7. Others by statute

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21
Q

Criminal Law & Procedure - Homicide

Voluntary Manslaughter

A
  1. Intentional killing of a human being
  2. With adequate provocation, which requires:
    • (Objective) Provocation from sudden and intense passion in mind of ordinary person
    • (Subjective) Defendant is in fact provoked
    • (Objective) Insufficient time for passions of a reasonable person to cool
    • (Subjective) Defendant did not cool off
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22
Q

Criminal Law & Procedure - Homicide

Involuntary Manslaughter

A

Involves either:
1. Criminal Negligence
2. A Killing caused by an unlawful act that is not a felony

.
Criminal Negligence
Requires a substantially greater eviation from the reasonable person standard of civil liability

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23
Q

Criminal Law & Procedure - Inchoate Crimes

Inchoate Crimes

List

A
  1. Attempt
  2. Solicitation
  3. Accomplice Liability
  4. Accessory after the Fact
  5. Conspiracy
24
Q

Criminal Law & Procedure - Inchoate Crimes

Attempt

A
  1. Intent to commit a specific crime
  2. An overt act in furtherance of that crime (beyond mere preparation; substantial step)

.
Dont discuss underlying crime
.
Factual impossibility is not a defense.
.
Attempt merges into completed crime (cant be charged with both)

25
Q

Criminal Law & Procedure

Solicitation

A

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)

26
Q

Criminal Law & Procedure - Inchoate Crimes

Accomplice Liability

A
  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

27
Q

Criminal Law & Procedure - Inchoate Crimes

Accessory after the Fact

A

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.

28
Q

Criminal Law & Procedure - Inchoate Crimes

Conspiracy

A
  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)
29
Q

Criminal Law & Procedure - Defenses to Crimes

Defenses to Crimes

List

A
  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)
30
Q

Criminal Law & Procedure - Defenses to Crimes

Self-Defense
& Defense of Others

A

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

31
Q

Criminal Law & Procedure - Defenses to Crimes

Necessity

A

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

32
Q

Criminal Law & Procedure - Defenses to Crimes

Duress

A

Requires:
1. A threat
2. That the defendant reasonably believes threatens death or great bodily harm.

.
Duress is not a defense to homicide

33
Q

Criminal Law & Procedure - Defenses to Crimes

Mistake of Fact

A

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

34
Q

Criminal Law & Procedure - Defenses to Crimes

Intoxication

A
35
Q

Criminal Law & Procedure - Fourth Amendment

Fourth Amendment

List

A
  1. Government Conduct
  2. Standing (REOP)
  3. (if stop, then) Stop & Frisk
  4. Validity of Warrant
  5. Warrant Exceptions
36
Q

Criminal Law & Procedure - Fourth Amendment

Government Conduct

A

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.

37
Q

Criminal Law & Procedure - Fourth Amendment

Standing (REOP)

A

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.

38
Q

Criminal Law & Procedure - Fourth Amendment

Stop & Frisk

A

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)

39
Q

Criminal Law & Procedure - Fourth Amendment

Validity of Warrant

A

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

40
Q

Criminal Law & Procedure - Fourth Amendment

Warrant Exceptions

A

(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
  1. Scope of Search
    • Search in connection with arrest, or immediately after arrest
    • Area searched is within grabbing distance of arrestee (protective purpose of search)
  2. Arrestee SecuredOnce arrestee secured, Officer must have
    * Reasonable belief of evidence
    * of the offense for which arrested
  3. Accomplices/Protective Sweep
    • Reasonable belief
    • Articulable Facts
    • Accomplices nearby
41
Q

Criminal Law & Procedure - Confessions

Checklist

A
  1. 14th Amendment
  2. 6th Amendment
  3. 5th Amendment
  4. Identification Procedures
  5. Informants
  6. Confrontaton Clause/Co-Defendant Confessions
42
Q

Criminal Law & Procedure - Confessions

14th Amendment

A

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

43
Q

Criminal Law & Procedure - Confessions

6th Amendment

A

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)

44
Q

Criminal Law & Procedure - Confessions

5th Amendment

A

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

45
Q

Criminal Law & Procedure - Confessions

Identification Procedures

A

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.

46
Q

Criminal Law & Procedure - Confessions

Informants

A

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.

47
Q

Criminal Law & Procedure - Confessions

Confrontation Clause/Co-Defendant Confessions

A

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

48
Q

Criminal Law & Procedure - Exclusionary Rule

Exclusionary Rule

A

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

49
Q

Criminal Law & Procedure - Rights Relating to Trial

Rights Relating to Trial

List

A
  1. Right to Speedy Trial
  2. Bail
  3. Pleas
  4. Ineffective Assistance of Counsel
  5. Right to Testify
  6. Right to Represent Self
50
Q

Criminal Law & Procedure - Rights Relating to Trial

Right to Speedy Trial

A

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

51
Q

Criminal Law & Procedure - Rights Relating to Trial

Bail

A

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

52
Q

Criminal Law & Procedure - Rights Relating to Trial

Pleas

A

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

53
Q

Criminal Law & Procedure - Rights Relating to Trial

Ineffective Assistance of Counsel

A

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

54
Q

Criminal Law & Procedure - Rights Relating to Trial

Right to Testify

A

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.

55
Q

Criminal Law & Procedure - Rights Relating to Trial

Right to Represent Self

A

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.

56
Q

Criminal Law & Procedure - Double Jeopardy

Double Jeopardy

A

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

Selected Topics (Part 1) (7 decks)

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