Criminal Law/Procedure

Question 1

Generally, a State has JDX over a crime if:

Answer 1

1) Any act constituting an element of the offense was committed in the State;

2) An act outside the State caused a result in the State;

3) The crime involved the neglect of a duty imposed by the law of the State;

4) There was an attempt or conspiracy outside the State plus an act inside the State; or

5) There was an attempt or conspiracy inside the State to commit an offense outside the State.

Question 2

Under Modern Law, the solicitation and completion of the crime are merged. Similarly, the attempt and completion of the crime are merge. However, what is NOT merged with the completed offense?

Answer 2

Conspiracy

Question 3

Under the MPC, a person may not be convicted of more than one _________ crime (i.e., conspiracy or solicitation)

Answer 3

Inchoate crimes

Question 4

What is a Felony?

Answer 4

Felonies are generally punishable by death or imprisonment for more than 1 year. Other crimes are misdemeanors.

Question 5

A crime always requires proof of:

Answer 5

1) Actus Reus;

2) Mens Rea;

3) A concurrence of the act and mental state; AND

4) Proof of a result and causation.

Question 6

What are examples of bodily movements that do not qualify for criminal liability?

Answer 6

1) Conduct that is not the product of the person’s own volition;

2) A reflexive or convulsive act;

3) An act performed while unconscious or asleep.

Question 7

The failure to act gives rise to liability only if:

Answer 7

1) There is a legal duty to act;

2) The D has knowledge of the fact giving rise to the duty to act; AND

3) It is reasonably possible to perform the duty

Question 8

A legal duty to act may arise from one of the 5 circumstances:

Answer 8

1) By Statute;

2) By Contract;

3) The relationship between the parties;

4) The voluntary assumption of care by the D for the victim; OR

5) The D created the peril for the victim.

Question 9

A specific intent crime is a crime that was committed with the specific intent or objective to complete it. What are the 11 specific intent crimes and what are the related intent to each crime?

Answer 9

1) Solicitation - Intent to have the person solicited commit the crime;

2) Conspiracy - Intent to have the crime completed;

3) Attempt - Intent to complete the crime;

4) First Degree Premeditated Murder - Premeditated intent to kill;

5) Assault - Intent to commit a battery;

6) Larceny - Intent to permanently deprive the other of their interest in the property taken;

7) Embezzlement - Intent to defraud;

8) False Pretenses - Intent to defraud;

9) Robbery - Intent to permanently deprive the other of their interest in the property taken;

10) Burglary - Intent to commit a felony in the dwelling;

11) Forgery - Intent to defraud.

Question 10

The intent necessary for malic crimes (common law murder and arson) requires:

Answer 10

A reckless disregard of an obvious or high risk that the particular harmful result will occur.

Question 11

Defenses to specific intent crimes do apply to malice crimes? True of False.

Answer 11

FALSE.

They Do NOT apply to malice crimes.

Question 12

Do strict liability offenses require a mens rea?

Answer 12

No.

The defendant can be found guilty from the mere fact that they committed the crime.

Question 13

What are the 4 general intent crimes?

Answer 13

1) Battery;

2) Rape;

3) Kidnapping;

4) False Imprisonment.

Question 14

The MPC eliminates the common law distinctions between general and specific intent and adopts the following categories of intent:

Answer 14

1) Purposefully;

2) Knowingly;

3) Recklessly;

4) Negligence.

Question 15

What is the MPC purposely intent?

Answer 15

A person acts purposely when their conscious object is to engage in certain conduct or cause a certain result.

[Subjective Standard]

Question 16

What is the MPC Knowingly intent?

Answer 16

A person acts knowingly with respect to the nature of their conduct when they are AWARE that their conduct is of a particular nature or that certain circumstances exist.

[Subjective Standard]

Question 17

What is the MPC Recklessly intent?

Answer 17

A person acts recklessly when they consciously disregard a substantial and unjustifiable risk that circumstances exist or that a prohibited result will follow, and this disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in that situation.

Recklessness involves both objective (“unjustifiable risk”) and subjective (“awareness”) elements.

[Subjective and Objective Standard]

Question 18

What is the MPC Negligence intent?

Answer 18

A person acts negligently when they fail to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care.

[Objective Standard]

Question 19

What is the doctrine of transferred intent?

Answer 19

The D may be liable when they intend the hard that is actually caused, but to a different victim or object.

This doctrine applies to homicide, battery, and arson. It does NOT apply to attempt.

Question 20

At Common law, parties to a crime include:

Answer 20

1) Principals in the first degree;

2) Principals in the 2nd degree;

3) Accessories before the fact;

4) Accessories after the fact.

Question 21

What are principals in the first degree?

Answer 21

Persons who actually engaged in the act or omission that constitutes the offense or who caused an innocent agent to do so.

Question 22

What are principals in the second degree?

Answer 22

Persons who aided, advised, or encouraged the principal AND were present at the crime.

Question 23

What are Accessories before the fact?

Answer 23

Persons who assisted or encouraged but were not present.

Question 24

What are Accessories after the fact?

Answer 24

Persons who, with knowledge that the other committed a felony, assisted them to escape arrest or punishment.

Question 25

Under the Modern Statutes, all parties to the crime are either:

Answer 25

1) the Principal who, with the requisite mental state, actually engages in the act or omission that causes the criminal result; and

2) An accomplice is one who aids, advises, or encourages the principal in the commission of the crime charged.

Question 26

To be convicted of a substantive crime as an accomplice, the accomplice must have:

Answer 26

1) The intent to assist the principal in the commission of a crime; and

2) The intent that the principal commit the substantive offense.

Question 27

What is the exception to an accomplice receiving liability?

Answer 27

Members of a class protected by a statute that has been violated are exempt from liability.

Question 28

When the substantive offense has recklessness or negligence as its mens rea, most JDX would hold that the intent element is satisfied if the accomplice:

Answer 28

1) Intended to facilitate the commission of the crime; and

2) Acted with recklessness or negligence (whichever is required by the particular crime).

Question 29

A person who effectively withdraws from a crime before it is committed cannot be held guilty as an accomplice. Withdrawal must occur BEFORE the crime becomes unstoppable. A mere withdrawal from involvement without taking any additional action is NOT sufficient.

What are some appropriate actions to effectively withdraw?

Answer 29

1) If the person encouraged the crime, the perso must repudiate the encouragement;

2) If the person aided by providing assistance to the principal, the person must do everything possible to attempt to neutralize the assistance;

3) Notify the police or prevent the crime.

Question 30

Inchoate means incomplete. What are the three inchoate offenses?

Answer 30

1) Conspiracy;

2) Solicitation;

3) Attempt

Question 31

What are the elements of Conspiracy?

Answer 31

1) An agreement between 2 or more persons;

2) An intent to enter into the agreement; AND

3) An intent by at least two persons to achieve the objective of the agreement.

The object of the conspiracy must be criminal or the achievement of the lawful objective by criminal means.

Question 32

When does a conspiracy terminate?

Answer 32

Upon completion of the wrongful objective.

Question 33

A conspirator may be held liable for crimes committed by other conspirators if the crimes:

Answer 33

1) Were committed in furtherance of the objectives of the conspiracy; AND

2) Were foreseeable.

Question 34

Under common law, Are there any defenses to conspiracy?

Answer 34

NO

1) Factual impossibility is NOT a defense to conspiracy

2) Withdrawal from a conspiracy is NOT a defense to the conspiracy. Conspiracy is complete as soon as the agreement is made and an act in furtherance is performed. Withdrawal is a defense for crimes committed.

Question 35

How do you withdraw from subsequent crimes?

Answer 35

1) The D has taken an affirmative act notifying all members of the conspiracy of their intent to withdraw; AND

2) Notification must be done in a timely fashion so other members have opportunity to withdraw as well.

Question 36

Under the MPC, how can the D withdraw from a conspiracy?

Answer 36

D must attempt or thwart the crime (notify the police)

Question 37

What are the elements of solicitation?

Answer 37

Solicitation consists of asking, inciting, counseling, advising, urging or commanding another to commit a crime, with the intent that the person solicited commit the crime.

It is not necessary that the person solicited agree to commit the crime.

Question 38

Attempt is an act, done with intent to commit a crime, that falls short of completing the crime. What are the elements of Attempt?

Answer 38

1) Specific intent plus

2) An over/substantial act in furtherance of the crime.

Question 39

What is murder?

Answer 39

1) Unlawful killing of a human being with malice aforethought; AND

2) It was committed with one of the following states of mind:

• Intent to Kill;
• Intent to inflict great bodily injury;
• Reckless indifference to an unjustifiably high risk to human life (“abandoned and maligant heart” or “depraved heart”); or
• Intent to commit a felony (felony murder)

Question 40

At common law, What are the inherently dangerous felonies that may constitute felony murder?

Answer 40

Burglary
Arson
Rape
Robbery
Kidnapping

Question 41

What is Felony Murder?

Answer 41

Any death - even an accidental death - caused in the commission of or in an attempt to commit, a felony is murder. Malice is implied from the intent to commit the underlying felony.

Question 42

What are the limitations to felony murder?

Answer 42

1) The D must have committed or attempted to commit the underlying felony; a defense that negates an element of the underlying offense will also be a defense to felony murder;

2) The felony must be distinct from the killing itself;

3) Death must have been a foreseeable result of the felony;

4) The death must have been caused before the D’s “immediate flight” from the felony ended; once the felon has reached a place of “temporary safety,” subsequent deaths are not felony murder;

5) In most JDX, the D is not liable for the felony murder when a co-felon is killed as a result of resistance from the felony victim or the police.

Question 43

What is the proximate cause theory for felony murder?

Answer 43

Felons are liable for the death of innocent victims caused by someone other than a co-felon.

Question 44

What is the Agency theory of felony murder?

Answer 44

The killing must be committed by a felon or their “agent” (accomplice).

Question 45

What is voluntary manslaughter?

Answer 45

A killing that would be murder but for the existence of adequate provocation.

Question 46

Provocation is adequate for voluntary manslaughter only if:

Answer 46

1) It was a provocation that would arose sudden and intense passion in the mind of an ordinary person, causing them to lose self-control;

2) The D was in fact provoked;

3) There was not sufficient time between provocation and the killing for passions of a reasonable person to cool; AND

4) The D in fact did not cool off between the provocation and the killing.

Question 47

What is the Imperfect Self-Defense doctrine?

Answer 47

Murder may be reduced to manslaughter even though:

1) The D was at fault in starting the altercation; OR

2) The D unreasonably but honestly believed in the necessity of responding with deadly force.

Question 48

What is Involuntary Manslaughter?

Answer 48

A killing is involuntary manslaughter if it was committed:

1) With criminal negligence (or by “recklessness” under the MPC); OR

2) During the commission of an unlawful act.

Question 49

How do you distinguish “abandoned and Malignant heart” murder and involuntary manslaughter?

Answer 49

Abandoned and malignant heart murder at common law involves a high risk of death;

Involuntary manslaughter based on recklessness requires only a SUBSTANTIAL risk.

Question 50

What is Battery?

Answer 50

An unlawful application of force to the person of another resulting in either (1) bodily injury or (2) an offensive touching.

Question 51

Is Battery a specific intent crime?

Answer 51

No! It is a general intent crime.

Question 52

What is Aggravated Battery?

Answer 52

(1) Battery with a deadly weapon;

2) Battery resulting in serious bodily harm; AND

3) Battery of a child, woman, or police officer.

Question 53

What is Assault?

Answer 53

Assault is either:

1) An attempt to commit a battery; OR

2) The intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm.

If there has been an actual touching of the victim, the crime can only be battery, not assault.

Question 54

What is Aggravated Assault?

Answer 54

Aggravated assault is an assault plus one of the following:

1) The use of a deadly or dangerous weapon; OR

2) With the intent to rape, maim, or murder.

Question 55

What is False Imprisonment?

Answer 55

False Imprisonment consists of the unlawful confinement of a person without the person’s valid consent.

MPC requires that the confinement must “interfere substantially” with the victim’s liberty.

Question 56

What is Kidnapping?

Answer 56

Unlawful confinement of a person that involves either:

1) Some movement of the victim; OR

2) Concealment of the victim in a “secret” place.

Question 57

To be rape, the intercourse must be without effective consent. Lack of effective consent exists where:

Answer 57

1) Intercourse is accomplished by actual force

2) Intercourse is accomplished by threats of great and immediate bodily harm

3) The victim is incapable of consenting due to unconsciousness, intoxication, or mental condition; OR

4) The victim is fraudulently caused to believe that the act is not intercourse.

Question 58

What is Larceny?

Answer 58

Larceny consists of:

1) A taking (obtaining control);

2) And carrying away (asportation);

3) Of tangible personal property;

4) Of another with possession;

5) By trespass;

6) With intent to permanently deprive that person of their interest in the property.

Question 59

Under common law, What are the elements to Embezzlement?

Answer 59

Embezzlement is:

1) The fraudulent;

2) Conversion;

3) Of personal property;

4) Of another;

5) By a person in lawful possession of that property.

Question 60

How do you distinguish Larceny and Embezzlement?

Answer 60

Embezzlement - The defendant misappropriates property while it is in their rightful possession.

Larceny - The defendant misappropriates property not in their possession.

Question 61

What are the elements of False Pretenses?

Answer 61

The offense of false pretenses is:

1) Obtaining title;

2) To personal property of another;

3) By an intentional false statement of a past or existing fact;

4) With intent to defraud the other.

Question 62

How do you distinguish False Pretenses and Larceny by Trick?

Answer 62

False Pretenses - the victim is tricked into giving up title to property.

Larceny by Trick - The victim is tricked by a misrepresentation of fact into giving up mere custody or possession of property.

Question 63

What is Robbery?

Answer 63

Robbery consists of:

1) A taking;

2) Of personal property of another;

3) From the other’s person or presence;

4) By force or threats of immediate death or physical injury to the victim, a family member, or some person in the victim’s presence;

5) With the intent to permanently deprive them of it.

Question 64

How do you distinguish Larceny and Robbery?

Answer 64

Robbery - Requires that the defendant use force or threats to obtain or retain the victim’s property.

Larceny - Pickpocketing generally is larceny, but if the victim notices the attempt and resists, the taking would be robbery.

Question 65

What is Receipt of Stolen Property?

Answer 65

Receipt of stolen property consists of:

1) Receiving possession and control;

2) Of “Stolen” personal property;

3) Known to have been obtained in a manner constituting a criminal offense;

4) By another person;

5) With the intent to permanently deprive the owner of their interest in it.

Question 66

At common law, What is Forgery and what are the elements??

Answer 66

Forgery is the making or altering of a false writing with intent to defraud.

Forgery consists of the following:
1) Making or altering (by drafting, adding, or deleting);

2) A writing with apparent legal significance;

3) So that it is false;

4) With intent to defraud.

Question 67

What does Uttering a forged instrument consists of:

Answer 67

1) Offering as genuine;

2) An instrument that may be the subject of forgery and is false;

3) With intent to defraud.

Question 68

What does Common Law Burglary consist of?

Answer 68

1) A breaking;

2) And Entry;

3) Of a dwelling;

4) Of another;

5) At nighttime;

6) With the intent to commit a felony in the structure

Modern Statutes often eliminate many of these “technicalities.”

Question 69

Modern rules of Arson consists of:

Answer 69

1) The malicious;

2) Burning;

3) Of the dwelling;

4) Of another

Charring is sufficient for arson. A mere blackening is NOT sufficient for arson.

Question 70

At common law [minority rule], the state of mind required for arson (malice) is satisfied by two ways:

Answer 70

Either:

1) The intentionally burning the dwelling of another;

2) Acting with reckless disregard of an obvious risk that the structure would burn.

Question 71

The defense of insanity is basically the defendant was so mentally ill at the time of the crime that the defendant should be entitled to acquittal. What are the three types of tests to determine insanity?

Answer 71

1) M’Naghten Rule;

2) Irresistible Impulse Test;

3) MPC Test.

Question 72

What is the M’Naghten Rule?

Answer 72

A defendant is entitled to acquittal if:

1) A disease of the mind;

2) Caused a defect of reason;

3) Such that the defendant lacked the ability at the time of their actions to either know the wrongfulness of their actions or understand the nature and quality of their actions.

Question 73

What is the Irresistible Impulse Test?

Answer 73

A defendant is entitled to acquittal only if, because of a mental illness, they were unable to control their actions or conform their conduct to the law.

Question 74

What is the MPC test for insanity?

Answer 74

A defendant is entitled to acquittal if they had a mental disease or defect, and as a result, they lacked the substantial capacity to either:

1) Appreciate the criminality of their conduct; OR

2) Conform their conduct to the requirements of law.

Question 75

Intoxication may be raised as a defense to negate one of the elements of the crime charged. What are the two types of intoxication?

Answer 75

1) Voluntary; and

2) Involuntary

Question 76

What are the elements of voluntary intoxication and what crimes may it be used as a defense against?

Answer 76

Voluntary, intentional taking of a substance known to be intoxicating.

Defense to specific intent crime if intoxication prevents formation of required intent.

Question 77

What are the elements of involuntary intoxication and what crimes may it be used as a defense against?

Answer 77

Taking intoxicating substance without knowledge of its nature, under duress, or pursuant to medical advice.

Treated as mental illness; may be a defense to ALL crimes.

Question 78

May intoxication be used as a defense to negate reckless state of mind?

Answer 78

NO

Question 79

A person may use deadly force in self-defense if the person:

Answer 79

1) Is without fault;

2) Is confronted with “unlawful force”; and

3) Reasonably believes that they are threatened with imminent death or great bodily harm.

Question 80

If one is the aggressor in the confrontation, they may use force in defense of themselves only if:

Answer 80

1) They effectively withdraw from the confrontation and communicate to the other their desire to do so; OR

2) The victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw.

Question 81

When is mistake or ignorance of fact relevant to criminal liability?

Answer 81

Only if it shows that the defendant lacked the state of mind required for the crime.

It is irrelevant if the crime imposes “strict liability.”

Question 82

How do you distinguish Mistake or ignorance of fact with factual impossibility?

Answer 82

Even though in both situations the defendant is mistake about certain facts, the results are different.

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

Impossibility - Arises only when the defendant has failed to complete the crime because of their 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 83

What is entrapment?

Answer 83

Entrapment occurs if the intent to commit the crime originated not with the defendant but with law enforcement officers.

Entrapment exists only if:

1) The criminal design originated with law enforcement officers; AND

2) The defendant was not predisposed to commit the crime prior to contact by the government.

Question 84

The 4th Amendment provides that people should be free from unreasonable searches and seizures. When does a seizure occur?

Answer 84

A seizure occurs when, under the totality of the circumstances, a reasonable person would feel that they were not free to decline the officer’s requests or otherwise terminate the encounter.

Question 85

When does an arrest occur?

Answer 85

When the police takes a person into custody against their will for purposes of criminal prosecution or interrogation.

An arrest must be based on probable cause.

Question 86

What is the Terry Stops and when does it apply?

Answer 86

The Police have the authority to briefly detain a person even if they lack probable cause to arrest (Terry Stops).

If the police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts, they may detain a person for investigative purposes.

Question 87

When may an officer conduct a protective frisk?

Answer 87

During a Terry stop (officer stops a person without probable cause for arrest if she has an articulable and reasonable suspicion of criminal activity) If the officer reasonably believes that the person may be armed and dangerous.

Question 88

Like arrests, evidentiary searches and seizures must be reasonable to be valid under the 4th Amendment. Evidentiary search and seizures issues should be approached using the following analytical model:

Answer 88

1) Is there government conduct?

2) Is there standing?

3) Is there a valid warrant?

4) If no valid warrant, does the search/seizure fall within one of the 6 exceptions?

Question 89

Is there standing for arguing an invalid search and seizure?

There are two ways in which searches and seizures can implicate an individual’s 4th Amendment rights:

Answer 89

1) Search or seizure by a government agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy; OR

2) Physical intrusion by the govt into a constitutionally protected area to obtain information.

Question 90

Regarding the standing for challenging an invalid search and seizure, what are the two requirements to constitute a person’s expectation of privacy?

Answer 90

1) Must have right of possession in the place that was searched; AND

2) Must have property interest in the the items that were seized.

Question 91

Subject to the totality of the circumstances, A person has a reasonable expectation of privacy at any time:

Answer 91

1) The person owned or had a right to possession of the place searched;

2) The place searched was in fact their home, whether or not they owned or had a right to possession of it; OR

3) The person was an overnight guest of the owner of the place searched.

Question 92

What are the two core requirements for a facially valid search warrant:

Answer 92

1) Probable cause; and

2) Particularity.

Question 93

All warrantless searches conducted by law enforcement officers are unconstitutional unless they fit into one of 6 recognized exceptions to the warrant requirement:

Answer 93

1) Search incident to constitutional arrest;

2) Automobile exception;

3) Plain View exception;

4) Consent;

5) Stop and Frisk;

6) Hot pursuit, evanescent evidence, and Emergency aid.

Question 94

Under the search incident to constitutional arrest exception to warrantless searches, what may the police do?

Answer 94

The police may search the person and areas into which they might reach to obtain weapons or destroy evidence.

The police may also make a protective sweep of the area if they believe accomplices may be present.

The search must be CONTEMPORANEOUS in time and place with the arrest.

Question 95

The police may conduct a search of the passenger compartment of an automobile incident to arrest ONLY IF at the time of the search:

Answer 95

1) The arrestee is unsecured and still may gain access to the interior of the vehicle; OR

2) The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.

Question 96

How may the police search an automobile without a warrant under the automobile exception?

Answer 96

if the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search.

Question 97

Under the plain view exception, the police may make a warrantless seizure when they:

Answer 97

1) Are legitimately on the premises;

2) Discover evidence, fruits or instrumentalities of crime, or contraband;

3) See such evidence in plain view; AND

4) Have probable cause to believe (it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime.

Question 98

A warrantless search is valid if the police have a voluntary consent. True of false?

Answer 98

TRUE

Question 99

What is the scope of a consented warrantless search?

Answer 99

The scope of the search may be limited by the scope of the consent, but generally extends to all areas to which a reasonable person under the circumstances would believe it extends.

Question 100

What is Evanescent Evidence?

Answer 100

Evanescent evidence is evidence that might disappear quickly if the police took the time to get a warrant.

Question 101

What is hot pursuit?

Answer 101

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling.

If the police are not within 15 minutes behind the fleeing felon, it is not a hot pursuit that falls under this exception.

Question 102

A school search will be held to be reasonable only if:

Answer 102

1) It offers a moderate chance of finding evidence of wrongdoing;

2) The measures adopted to carry out the search are reasonably related to the objectives of the search; and

3) The search is not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

Question 103

Wiretapping constitutes a search under the 4th Amendment. A valid warrant authorizing a wiretap may be issued if:

Answer 103

1) There is showing a probable cause;

2) The suspected persons involved in the conversations to be overheard are named;

3) The warrant describes with particularity the conversations that can be overheard;

4) The wiretap is limited to a short period of time;

5) The wiretap is terminated when the desired information has been obtained; AND

6) Return is made to the court, showing what conversations have been intercepted.

Question 104

Under the 14th Amendment, for a self-incriminating statement to be admissible under the Due Process Clause, it must be:

Answer 104

VOLUNTARY as determined by the totality of the circumstances.

Question 105

Under the 6th Amendment, the defendant has a right to counsel. What does the Amendment provide?

Answer 105

The 6th Amendment guarantees the right to the assistance of counsel in all criminal proceedings, which include all critical stages of a prosecution AFTER judicial proceedings have begun.

It prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel AFTER the defendant has been charged unless the defendant waived their right to counsel.

THIS IS OFFENSE SPECIFIC

Question 106

A defendant has a right to counsel at what following stages:

Answer 106

1) Post-indictment interrogation, whether or not custodial;

2) Preliminary hearings to determine probable cause to prosecute;

3) Arraignment;

4) Post-charge lineups;

5) Guilty plea and sentencing;

6) Felony trials;

7) Misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed;

8) Overnight recesses during trial;

9) Appeals as a matter of right;

10) Appeals of guilty pleas

Question 107

What is the remedy if the defendant was entitled to a lawyer at trial, and the trial failed to provide counsel?

Answer 107

The remedy is an automatic reversal of the conviction.

Question 108

When are the Miranda warning required to be recited to the detainee?

Answer 108

They are required when a suspect is in custodial interrogation.

Anyone who is in custody of the government and accused of a crime must be given Miranda warnings PRIOR to interrogation by the police.

Question 109

Determining whether custody for Miranda warning purposes exists is a two-step process:

Answer 109

1) Whether a reasonable person under the circumstances would feel that they were free to terminate the interrogation and leave [Freedom of movement test].

2) Whether the relevant environment presents the traditional arrest.

Question 110

In general, evidence obtained in violation of the Miranda rules is inadmissible at trial under the exclusionary rule. Statements obtained in violation of the Miranda rules may be used to __________ the defendant’s trial testimony, but may not be used as substantive evidence.

Answer 110

Impeach

Question 111

What is the remedy for an unconstitutional identification?

Answer 111

The exclusion of the in-court identification

Question 112

What is the exclusionary rule?

Answer 112

A judge-made doctrine that prohibits introduction of evidence obtained in violation of a defendant’s 4th, 5th, and 6th Amendment Rights.

Unconstitutionally obtained evidence is inadmissible at trial, and all “fruit of the poisonous tree” must be excluded unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct.

Question 113

What are the exceptions to fruit of the poisonous tree doctrine?

Answer 113

1) The fruits derived from statements obtained in violation of Miranda

2) Evidence obtained from a source independent of the original illegality

3) Evidence for which the connection between the unconstitutional police conduct and the evidence is remote (This includes intervening acts of free will from the defendant)

4) Inevitable discovery - prosecution can show that the police would have discovered the evidence whether or not the police acted unconstitutionally

5) Violations of the knock and announce rule

Question 114

The exclusionary rule does not apply when the police arrest someone erroneously but in good faith thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law.

There are four exceptions to a good faith reliance on a defective warrant:

Answer 114

1) The affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied on it

2) The affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it

3) The police officer or prosecution lied to or misled the magistrate when seeking the warrant

4) The magistrate is biased and therefore has wholly abandoned their neutrality

Question 115

Some illegally obtained evidence may still be used to impeach the defendant’s credibility if they take the stand at trial. What are two situations where this applies:

Answer 115

1) Voluntary confession taken in violation of the Miranda rights

2) Evidence obtained from an illegal search to impeach the defendant’s statements only. (no one else)

Question 116

Grand jury proceedings are conducted in secret. True of False. The defendant has the right to notice that the grand jury is considering an indictment against them, to be present and confront witnesses at the proceeding, and to introduce evidence before the grand jury.

Answer 116

FALSE

Defendant has NONE of these rights for a grand jury proceeding.

Question 117

What are the three major differences between grand jury proceedings and criminal trials?

Answer 117

1) The “defendant” (grand jury witness) has no right to have counsel present during their grand jury testimony;

2) The grand jury may consider evidence that would be excluded at the criminal trial (for example, illegally obtained evidence or hearsay);

3) The “defendant” (grant jury witness) must appear if called, although they can refuse to answer specific questions on the grounds that they may incriminate them.

Question 118

What is the standard used to determine whether a defendant’s 6th Amendment right to a speedy trial has been violated?

Answer 118

Evaluation of the totality of the circumstances.

Factors include the length of the delay, reason for delay, whether defendant asserted their right, and prejudice to defendant.

Question 119

What is the remedy for a violation of the 6th Amendment speedy trial?

Answer 119

Dismissal with prejudice.

Question 120

When does the 6th Amendment right for speedy trial attach?

Answer 120

The right attaches when the defendant has been arrested or charged.

Note: The defendant does not need to know of the charges for the speedy trial rights to attach.

Question 121

The govt has a duty to disclose material, exculpatory evidence to the D. Failure to disclose such evidence violates the Due Process Clause and is grounds for reversing a conviction if the D can prove that:

Answer 121

1) The evidence is favorable to the D because it either impeaches or is exculpatory; and

2) Prejudice has resulted (there is reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial).

Question 122

When does the D have the right to trial by jury?

Answer 122

Only for serious offenses.

An offense is serious if imprisonment for more than 6 months is authorized.

Question 123

Yes or no: Do jury verdicts have to be unanimous?

Answer 123

Yes

Question 124

An equal protection-based attack on peremptory strikes involve three steps:

Answer 124

1) The D must show facts or circumstances that raise an inference that the exclusion was based on race or gender;

2) Upon such a showing, the prosecutor must come forward with a race-neutral explanation for the strike;

3) The judge then determines whether the prosecutor’s explanation was genuine.

Question 125

The right to counsel is available in misdemeanor cases only if:

Answer 125

Imprisonment is actually imposed.

If they receive no imprisonment, their right has not been violated; if they receive prison time, their right has been violated.

Question 126

For a D to argue an ineffective counsel claim, they must show:

Answer 126

1) Deficient performance by counsel; and

2) But for the deficiency, the result of the proceeding would have been different.

Question 127

If two persons are tried together and one has given a confession that implicates the other, the right of confrontation in 6th Amendment prohibits use of that statement, even where the confession interlocks with the defendant’s own confession, which is admitted.

However, such a statement may be admitted if:

Answer 127

1) All portions referring to the other D can be eliminated;

2) The confessing D takes the stand and subjects themselves to cross-examination with respect to the truth or falsity of what the statement asserts; OR

3) The confession of the nontestifying co-defendant is being used to rebut the D’s claim that their confession was obtained coercively

Question 128

Under the confrontation clause in 6th Amendment, prior testimonal evidence may not be admitted unless:

Answer 128

1) The declarant is unavailable; AND

2) The defendant had an opportunity to cross-examine the declarant at the time the statement was made.

Question 129

The judge must determine that the plea is voluntary and intelligent. The judge must be sure that the D knws and understands things such as:

Answer 129

1) The nature of the charge to which the plea is offered and the crucial elements of the crime charged;

2) The maximum possible penalty and any mandatory minimum; AND

3) That the defendant has a right not to plead guilty and that if they do plead guilty, they waive the right to trial.

Question 130

Is there a federal constitutional right to an appeal?

Answer 130

NO

Question 131

When do prison regulations impinge on due process rights?

Answer 131

Only if the regulations impose “atypical and significant hardship” in relation to the ordinary incidents of prison life.

Question 132

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

Answer 132

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

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

Question 133

What are the certain exceptions that permit retrial of a D even if jeopardy has attached:

Answer 133

1) A State may retry a D whose first trial ends in a hung jury;

2) If there was a medical emergency to abort the first trial;

3) If the D successfully appeals to get a new trial (D may not be tried for a greater offense than that for which they were convicted);

4) Charges may be reinstated after a D breaches their plea bargain;

5) If a D could have been tried for multiple charges in a single trial, but the D elects to have the offenses tried separately, jeopardy does not attach to the first trial for the other charges.

Question 134

An exception to the double jeopardy bar exists if unlawful conduct that is subsequently used to prove the greater offense:

Answer 134

1) Has not occurred at the time of prosecution for the lesser offense; OR

2) Has not been discovered despite due diligence

Question 135

Separate sovereigns can try a defendant for the same offense.

Does Attachment matter if there are two separate sovereigns intending to sue the D?

Answer 135

NO. Attachment does not matter if there are two separate sovereigns.

This is a distracting fact. The rule is simple: Separate Sovereigns can try a defendant for the same offense.

Question 136

There are two important things to remember about the 5th Amendment self-incrimination privilege. What are they?

Answer 136

1) Only testimonial evidence is protected.

2) Only compelled testimonial evidence is privileged.

Question 137

Juvenile court proceedings are proceedings against minors. The following rights must be given to a child during trial of a delinquency proceeding:

Answer 137

1) Written notice of charges;

2) Assistance of counsel;

3) Opportunity to confront and cross-examine witnesses;

4) The right not to testify; and

5) The right to have “guilt” established by proof beyond reasonable doubt.

Question 138

A criminal attempt consists of:

Answer 138

1) A specific intent to commit the crime; AND

2) An overt act in furtherance of that intent.

Question 139

Is mistake of law a valid defense?

Answer 139

NO DEFENSE

Even if it is reasonable, it is no defense,

Question 140

Is mistake of fact a valid defense?

Answer 140

It depends.

General intent crimes may be a valid defense. So long as it is reasonable.

Specific intent crimes may be a valid defense. So long as it is an honest mistake of fact.

Question 141

Criminal assault is either:

Answer 141

1) An attempt to commit a battery; OR

2) The intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm.

Question 142

Does the exclusionary rule apply to grand jury proceedings?

Answer 142

NO

A grand jury may consider any evidence available to it in determining whether probable cause exists to return an indictment against the defendant.

Because the exclusionary rule does not apply, a grand jury may base its indictment on evidence that would not be admissible at trial.

Question 143

Regarding the lawful police search under 4th Amendment, what is the open fields doctrine?

Answer 143

Areas outside the “curtilage” (dwelling house and outbuildings) are subject to police search, as these areas are held out to the public and are unprotected by the 4th Amendment.

Question 144

Regarding 4th Amendment, Is there an expectation of privacy in objects or places held out to the public or that may be viewed from a public vantage point?

Answer 144

NO

Police may fly over an area to observe it with the naked eye

However, the police may not use technologically enhanced methods that are not available to the public to search areas

Question 145

What must exist for a confession to be admissible for impeachment purposes?

Answer 145

The confession has to be voluntary (knowing and intelligent waiver of the D’s Miranda rights

Question 146

What are the main differences between 6th Amendment right to counsel and 5th Amendment right to counsel?

Answer 146

Under the 6th Amendment right to counsel, it applies whether or not the D is being interrogated by someone the D knows is a police officer.

The 6th Amendment is offense specific.

Under the 5th Amendment, it applies when D is in custodial interrogation by someone the detaintee KNOWS is a police officer.

Question 147

Where charges can be tried in a single trial, but the D consents to having two separate trials, is there a double jeopardy violation?

Answer 147

NO

Consent to a second trial is an exception to the double jeopardy rule.

Question 148

Generally, may the fruits of an unlawful search & seizure under the 4th amendment be admitted against the Defendant?

Answer 148

NO, unless an exception for a warrantless search/seizure applies.

Question 149

If the defendant appears to be incompetent to testify at trial and no one raises the issue of the defendant’s competency to stand trial, what is the responsibility of the trial judge?

Answer 149

The trial judge must raise the issue of competency, because the Constitution obligates her to do so.