Criminal Law/Procedure

Question 1

When does a state typically have jurisdiction over a crime?

Answer 1

1. An act constituting an element of the offense was committed inside the state
2. An act outside the state caused a result in the state
3. Crime involved neglect of duty under state law
4. Attempt or conspiracy outside the state plus act inside the state (or vice versa)

Question 2

What is the traditional and modern approach to merger?

Answer 2

-Common law: if a person engaged in conduct constituting both a felony and a misdemeanor, the misdemeanor merged into the felony and they could only be convicted of a felony.
-Modern approach: there is no merger, except for the fact that a person can’t be convicted of solicitation/attempt and the completed crime. You can be convicted for both conspiracy and the completed crime.
-MPC: a defendant may not be convicted of more than one inchoate crime when their conduct was designed to culminate in the commission of the same offense.

Question 3

What is the difference between the two classes of crimes?

Answer 3

Felonies are punishable by death or imprisonment for more than one year; other crimes are misdemeanors.

Question 4

What are the essential elements of a crime?

Answer 4

-Physical act (actus reus)
-Mental state (mens rea)
-Concurrence of act and mental state

Question 5

What is the physical act (actus reus) of a crime?

Answer 5

A voluntary physical act or a failure to act under circumstances imposing a legal duty to act. An act is bodily movement.

Question 6

When does an omission (failure to act) give rise to liability?

Answer 6

1. There is a legal duty to act
2. Defendant has knowledge of facts giving rise to duty AND
   3.. It is reasonably possible to perform the duty

Question 7

From what circumstances can a legal duty to act arise?

Answer 7

-Statute
-Contract
-Relationship between parties (parent/child)
-Voluntary assumption of care by defendant for the victim
-Defendant created peril for the victim

Question 8

What are the specific intent crimes?

Answer 8

Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts

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 9

What is the importance of specific intent crimes?

Answer 9

They qualify for additional defenses not available for other types of crimes: voluntary intoxication and unreasonable mistake of fact

Question 10

What are the malice crimes, and what is the intent required for them?

Answer 10

Malice crimes are common law murder and arson.

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

Question 11

What is general intent?

Answer 11

The catch-all category for crimes that do not require specific intent or malice. The defendant has an awareness of all factors constituting the crime. This can be inferred from merely the doing of the act.

Question 12

What is strict liability, and what are the common strict liability offenses?

Answer 12

A crime that does not require awareness of all factors constituting the crime–defendant can be found guilty from the fact that they committed the act.

Examples: selling liquor to minors, statutory rape - typically crimes in the administrative, regulatory, or morality area

Defenses that negate state of mind are not available

Question 13

What are the MPC categories of intent, and how are they evaluated?

Answer 13

Subjective standard:
1. Purposely - conscious object is to engage in proscribed conduct
2. Knowingly - aware that their conduct is of a particular nature or will cause a particular result
3. Recklessly - consciously disregarding a substantial and unjustifiable risk; gross deviation from standard of care of reasonable person

Objective standard:
4. Negligently - failure to be aware of a substantial and unjustifiable risk

Question 14

When can a defendant be liable under transferred intent?

Answer 14

When they intend the harm that is actually caused, but to a different victim or object. Applies to homicide, battery, and arson (usually guilty of two crimes: completed crime against actual victim and attempt against intended victim)

Question 15

When must the defendant have intent?

Answer 15

At the time they commit the act, and the intent must have prompted the act.

Question 16

At common law, who are the parties to a crime?

Answer 16

-Principals in the first degree: persons who actually engaged in the act or omission or who caused an innocent agent to do so
-Principals in the second degree: persons who aided, advised, or encouraged AND were present at the crime
-Accessories before the fact: persons who assisted or encouraged BUT were not present
-Accessories after the fact: persons who, with knowledge that the other committed a felony, assisted them to escape arrest or punishment

Conviction of the principal was required for conviction of an accessory (a largely abandoned requirement)

Question 17

What is the modern law approach to parties to a crime?

Answer 17

-Principal: the one who, with requisite mental state, actually engages in the act that causes the criminal result
-Accomplice: one who aids, advises, or encourages the principal in the commission of the crime charged
-Accessory after the fact: one who assists another to escape knowing they committed a felony (can be liable for a separate, less serious crime)

Question 18

When can the accomplice be convicted of a substantive crime?

Answer 18

When the accomplice has intent to assist the principal in commission of a crime and the intent that the principal commit the substantive offense.

They are responsible for the crimes they did or counseled and any other crimes committed in the course of the contemplated crime, so long as they were probable or foreseeable.

Question 19

When is withdrawal sufficient to prevent someone from being held guilty as an accomplice?

Answer 19

It must occur before the crime becomes unstoppable by repudiating encouragement, doing everything possible to attempt to neutralize the assistance, or notifying the police/taking action to prevent the crime

Question 20

What are the inchoate offenses?

Answer 20

Inchoate = incomplete. The inchoate offenses are conspiracy, solicitation, and attempt

Question 21

What are the elements of conspiracy?

Answer 21

1. Agreement between two or more persons
2. Intent to enter into agreement
3. Intent by at least two persons to achieve the objective of the agreement.

Additionally, the objective must be criminal.

Question 22

What are the two approaches to the agreement requirement for conspiracy?

Answer 22

-Modern (MPC’s unilateral approach): only one party must have genuine criminal intent
-Traditional (common law bilateral): required at least two guilty minds

Question 23

What is the Wharton Rule?

Answer 23

Where two or more people are necessary for the commission of the substantive offense, there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime (i.e. it takes three people to conspire to commit adultery because it takes two people to commit adultery)

Question 24

When is the conspiracy complete?

Answer 24

Common law: when the agreement with the requisite intent was reached

Majority rule: act in furtherance of conspiracy must be performed (can be mere preparation)

Question 25

When does the conspiracy terminate, and what is the importance of this point in time?

Answer 25

Acts and statements of co-conspirators are only admissible if they were done in furtherance of the conspiracy. The conspiracy terminates upon completion of the wrongful objective.

Question 26

What are NOT defenses to conspiracy?

Answer 26

-Factual impossibility
-Withdrawal (can withdraw from liability for other conspirators’ subsequent crimes, but not from the conspiracy itself).

Question 27

When is withdrawal from a conspiracy effective?

Answer 27

The conspirator must perform an affirmative act that notifies all members of the conspiracy of their withdrawal.

Question 28

What is solicitation?

Answer 28

Asking, inciting, counseling, advising, urging, or commanding another to commit a crime with the intent that the person solicited commit the crime. Not required for the person to agree to commit the crime.

Question 29

What are [not] potential defenses to solicitation?

Answer 29

Defenses: solicitor could not be found guilty of completed crime because of legislative intent to exempt them, renunciation if defendant prevents commission of crime

NOT defenses: person solicited is not convicted, factual impossibility

Question 30

What are the elements of attempt?

Answer 30

An act, done with intent to commit a crime, that falls short of completing the crime. Requires specific intent and an overt act in furtherance of the crime.

Question 31

What are the overt act requirements for attempt?

Answer 31

Common law proximity test: act must be dangerously close to successful completion of the crime

MPC, majority substantial step approach: act must be a substantial step in a course of conduct planned to culminate in commission of crime.

Question 32

Is abandonment a defense to attempt?

Answer 32

Common law: NO
MPC: fully voluntary and complete abandonment is a defense

Question 33

Is legal or factual impossibility a defense to attempt?

Answer 33

Legal impossibility (where completion of all intended acts would not result in a crime) is a defense; factual impossibility is not.

Question 34

What are the elements of common law murder?

Answer 34

Murder is the unlawful killing of a human being with malice aforethought.

Malice aforethought exists if there are no facts reducing killing to voluntary manslaughter and there is 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, intent to commit a felony.

Question 35

How do some jurisdictions divide murder into degrees by statute?

Answer 35

1. First degree: deliberate and premeditated murder, killing committed during commission of an enumerated or inherently dangerous felony, killing by certain ways (i.e. torture)
2. Second degree: depraved heart killing

Question 36

What is felony murder?

Answer 36

Any death (even accidental) caused in the commission of, or in attempt to commit, a felony.

Limitations:
-defenses that negate element of underlying offense is defense to felony murder
-felony must be distinct from killing itself
-death must be foreseeable result of felony
-death must be caused before defendant’s immediate flight from felony ended
-typically, defendant is not liable when co-felon is killed from resistance by felony victim or police

Question 37

What are the two approaches to felony murder?

Answer 37

Proximate cause (minority): felons liable for deaths of innocent victims caused by someone other than co-felon
Agency theory (majority view): killing must be committed by felon or their agent/accomplice.

Question 38

What is voluntary manslaughter?

Answer 38

Killing that would be murder BUT FOR the existence of adequate provocation. This is not a defense, but rather a means of reducing the killing from murder to manslaughter.

Adequate provocation exists when:
-Provocation would arise sudden and intense passion in the mind of an ordinary person
-Defendant was in fact provoked
-There was not sufficient time for a reasonable person to cool down
-Defendant did not in fact cool off between provocation and killing

Question 39

What is the imperfect self-defense doctrine?

Answer 39

Recognized by some states to reduce murder to manslaughter even though the defendant was at fault in starting the altercation or the defendant unreasonably but honestly believed in the necessity of responding with deadly force.

Question 40

What is involuntary manslaughter?

Answer 40

A killing committed with
1. Criminal negligence (or recklessness under the MPC); OR
2. In some states, during commission of unlawful act.

Question 41

What is the causation required for homicide?

Answer 41

Both cause-in-fact (but for) and proximate cause (natural and probable consequence of conduct) of victim’s death
-Hastening an inevitable result is still legal cause
-Simultaneous acts of two or more people can be independently sufficient
-Victim’s preexisting weakness or fragility does not break chain of causation

Question 42

What are the limitations to causation for homicide?

Answer 42

-Traditional year and a day rule (abolished by many states)
-Intervening act shields D from liability if act is coincidence or outside foreseeable sphere of risk

Question 43

What is battery?

Answer 43

An unlawful application of force to the person of another resulting either in bodily injury or offensive touching.

May be treated as aggravated battery if it involves a deadly weapon, results in serious bodily harm, or the victim is a woman, child, or police officer.

Question 44

What is assault?

Answer 44

Either:
1. An attempt to commit a battery (a specific intent crime) OR
2. Intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm (other than by words)

May be aggravated if it involves use of deadly or dangerous weapon or intent to rape, maim, or murder.

Question 45

What is false imprisonment?

Answer 45

Unlawful confinement of a person without the person’s valid consent. MPC requires that confinement must interfere substantially with victim’s liberty.

Question 46

What is kidnapping?

Answer 46

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 47

What is rape?

Answer 47

Traditional: unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent.

Modern approach: gender neutral, marital rape is punishable.

*Statutory rape is carnal knowledge of a person under the age of consent; strict liability crime.

Question 48

What is larceny?

Answer 48

-A taking
-And carrying away
-Of tangible personal property
-Of another with possession
-By trespass
-With intent to permanently deprive that person of their interest in the property.

The slightest movement of property is sufficient (asportation). If they believed the property is theirs or only intended to borrow, it is not sufficient intent. Intent can arise after the fact, but the person is only guilty of larceny at the moment intent arises.

Question 49

What is embezzlement?

Answer 49

-The fraudulent
-Conversion
-Of personal property
-Of another
-By a person in lawful possession of that property.

Different from larceny because in embezzlement the defendant has property in their rightful possession when they misappropriate, while the property must be in possession of another person for larceny. If defendant intends to restore exact property, it is not embezzlement. Embezzler must not be beneficiary of misappropriation.

Question 50

What is false pretenses?

Answer 50

-Obtaining title
-To personal property of another
-By an intentional false statement of a past or existing fact
-With intent to defraud the other

Common law: misrepresentation must have related to a past or present fact
Modern approach: any false representation suffices, including false promise to perform in the future

Question 51

What is the difference between larceny by trick and false pretenses?

Answer 51

What the victim intended to convey to the defendant. If it is ownership (title), the crime is false pretenses. If it is merely possession or custody, it is larceny by trick.

Question 52

What is robbery?

Answer 52

-A taking
-of personal property of another
-from the other’s person or presence
-by force or threats of immediate death or physical injury
-with the intent to permanently deprive them of it

Distinguished from larceny because robbery requires force or threats to obtain/retain property.

Question 53

What is extortion?

Answer 53

Common law: corrupt collection of an unlawful fee by an officer under color of office

Modern: obtaining property by means of threats to do harm or to expose information (blackmail). May involve future threats of harm, which distinguishes it from robbery

Question 54

What is receipt of stolen property?

Answer 54

-Receiving possession and control
-of stolen personal property
-known to have been obtained in a manner constituting a criminal offense
-by another person
-with intent to permanently deprive the owner of their interest in it

Question 55

What is forgery?

Answer 55

-making or altering
-a writing with apparent legal significance
-so that it is false (representing something that it is not, not merely a misrepresentation)
-with intent to defraud

Question 56

What is burglary?

Answer 56

-a breaking (not just a wide open window/door; includes constructive breaking through fraud/threat)
-and entry
-of a dwelling
-of another
-at nighttime
-with the intent to commit a felony in the structure (at the time of the breaking and entering)

Modern statutes typically eliminate the technicalities and intent to commit theft is often enough.

Question 57

What is arson?

Answer 57

-the malicious
-burning
-of the dwelling
-of another

Under the MPC and modern statutes, the definition includes damage by explosion and the types of property have been expanded.

Damage: Blackening is not sufficient, but charring is sufficient.

Question 58

What are the different conceptions of the insanity defense?

Answer 58

-M’Naghten Rule: D does not know right from wrong or does not understand his actions
-Irresistible Impulse Test: impulse that defendant cannot resist
-Durham Test (NH only): but for mental illness, the defendant would not have done the act
-MPC (modern trend): entitled to acquittal if they had serious mental disease or defect and therefore lacked substantial capacity to either (1) appreciate criminality of conduct or (2) conform conduct to requirements of law (combination of M’Naghten and irresistible impulse)

Question 59

What is the burden of proof for the insanity defense?

Answer 59

Defendants are presumed sane and must raise the insanity issue. Most states require defendant to prove insanity by preponderance of evidence; MPC and others require prosecution to prove D was sane beyond a reasonable doubt.

Federal courts: D must prove insanity by clear and convincing evidence.

Question 60

What is the intoxication defense?

Answer 60

-Voluntary intoxication is the result of the intentional taking without duress of a substance known to be intoxicating. It may be offered only if the crime requires purpose/intent or knowledge (specific intent crime defense)
-Involuntary intoxication is the taking of an intoxicating substance without knowledge of its nature, under direct duress, or pursuant to medical advice. Entitled to acquittal if the D meets the insanity standard, so can be a defense to all crimes.

Question 61

How does the infancy defense work?

Answer 61

Common law:
-No liability under age 7
-Rebuttable presumption that child could not understand wrongfulness of acts from 7-14
-Treated as adults over age 14

Modern: No child can be convicted of a crime until a stated age is reached (13 or 14)

Question 62

When is self-defense applicable?

Answer 62

-Non-deadly force: person without fault may use when they reasonably believe necessary to protect from imminent use of unlawful force against them. No duty to retreat
-Deadly force: May use if the person is without fault, confronted with unlawful force, and reasonably believes that they are threatened with imminent death or great bodily harm. Majority view does not require retreat; minority view requires retreat unless the victim is at home, making a lawful arrest, or being robbed.

Question 63

When may the aggressor use self-defense?

Answer 63

Only if they
- Effectively withdraw from the confrontation and communicate their desire to do so OR
- Victim of the initial aggression suddenly escalates to deadly altercation and initial aggressor has no chance to withdraw.

Question 64

When may a defendant defend others?

Answer 64

If they reasonably believe that the person assisted has the legal right to use force in their own defense. No special relationship required by majority of states.

Question 65

When may a person defend their dwelling?

Answer 65

-Non-deadly force: when they reasonably believe that they need to do so to prevent or terminate another’s unlawful entry or attack on the dwelling
-Deadly force: only to prevent violent entry and when they reasonably believe it is necessary to prevent personal attack on themself or someone else in the dwelling.

Question 66

Can deadly force ever be used to defend property?

Answer 66

No, only reasonable nondeadly force. Furthermore, can only use force to regain possession of property if they are in immediate pursuit of the taker.

Question 67

When is duress a defense?

Answer 67

To crimes other than intentional homicide when defendant reasonably believed that another person would inflict death/great harm on them or a family member if they did not commit the crime.

*MPC and some states also allow for threats to property to give rise to this defense if threat of harm to property outweighs harm done to society.

**It is always a threat by another person

Question 68

When is necessity a defense?

Answer 68

When the person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime (objective test).

Common law: pressure producing choice must come from natural forces
Modern: abandoned natural forces requirement

Question 69

When is mistake or ignorance of fact a defense?

Answer 69

Only relevant if it shows that the defendant lacked the state of mind required for the crime (so not for strict liability crimes)
-Unreasonable mistake allowed for specific intent crimes; for general intent, it must be reasonable.

Question 70

When is mistake or ignorance of law a defense?

Answer 70

It is generally not a defense, except when:
-statute was not published prior to conduct
-reasonable reliance on a statute or judicial decision
-some jurisdictions: reasonable reliance on official interpretation or advice
-negates intent/requisite state of mind

Question 71

When is entrapment a defense?

Answer 71

Only if (1) the criminal design originated with law enforcement officers and (2) defendant was not predisposed to commit the crime prior to government contact.

Question 72

What is perjury?

Answer 72

Intentional taking of a false oath in regard to a material matter in a judicial proceeding. Subordination of perjury is when you procure or induce another person to commit perjury.

Question 73

What is bribery?

Answer 73

Common law: corrupt payment or receipt of anything of value for official action
Modern: extended to nonpublic officials, and offering bribe or accepting bribe can constitute the crime.

Question 74

What does the Fourth Amendment provide?

Answer 74

People should be free from unreasonable searches and seizures.

Question 75

What is a seizure?

Answer 75

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 76

What is required for an arrest?

Answer 76

An arrest must be based on probable cause - trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law. It is based on totality of circumstances.

An arrest warrant is not required for public places, but it is to arrest a person in their home.

Question 77

When can the police detain a person even if they lack probable cause to arrest? How long may such a stop last?

Answer 77

Under Terry, if the police have reasonable suspicion of criminal activity supported by articulable facts, they may detain a person for investigative purposes.

During a Terry stop, they may frisk a person if they have reasonable suspicion that the detainee is armed and dangerous.

There is no specific time limit, but the police must act in a diligent and reasonable manner in confirming or dispelling their suspicions.

Question 78

When may police stop a car?

Answer 78

If they have reasonable suspicion to believe that a law has been violated. A dog sniff is not a search, so long as the length of the stop is not extended beyond the time needed to issue a ticket or conduct normal inquiries.

Question 79

Can police set up checkpoints and roadblocks to stop cars?

Answer 79

Yes, if it is set up for purposes other than seeking incriminating information about the drivers stopped.

If the roadblock is to stop cars without individualized suspicion, it must (1) stop the cars on the basis of some neutral, articulable standard and (2) be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility (such as a DUI checkpoint).

Question 80

Is a pretextual stop valid?

Answer 80

Yes, if the police have probable cause to believe a driver violated a traffic law. They can stop the car even if their ulterior motive is to investigate an underlying crime.

Question 81

What is the framework for analyzing search and seizure issues?

Answer 81

1. Is there government conduct?
2. Is there standing?
3. Is there a valid warrant?
4. If there was not a valid warrant, is there an exception to the warrant requirement?
5. If there was a warrant, was it properly executed?

Question 82

Does the Fourth Amendment protect against searches by private parties?

Answer 82

Only if they are acting at the direction of the public police. Generally, the Fourth Amendment protects only against governmental conduct (so police officers, government agents, private police who have been deputized).

Question 83

How does a person have standing to object to a governmental search?

Answer 83

A person must have their own reasonable expectation of privacy with respect to the place searched or the item seized. A person has a reasonable expectation of privacy when:
-they owned or had right to possession of the place searched
-the place searched was their home
-the person was an overnight guest of the owner of the place searched

Question 84

What sorts of things does a person not have a reasonable expectation of privacy in?

Answer 84

In objects held out to the public, including:
-sound of voice
-handwriting
-paint on outside of car
-account records held by bank
-location of car on public street (but not a GPS tracker)
-anything seen across open fields
-anything seen from public airspace
-odors emanating from luggage or car
-garbage on curb for collection

Question 85

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

Answer 85

1. Probable cause to believe that seizable evidence will be found on place or person
2. Particularity (precise description of place to be searched and things to be seized)

Question 86

What are relevant factors to determine an informant’s reliability?

Answer 86

Based on totality of circumstances: reliability, credibility, basis for knowledge

Question 87

Will violations of knock and announce result in suppression of evidence?

Answer 87

No, not if the evidence was otherwise properly obtained

Question 88

How should a warrant be executed?

Answer 88

-By the police, not private citizens
-Without unreasonable delay
-Knock, announce, and wait a reasonable time unless there is a reasonable suspicion that doing so would be dangerous, futile, or inhibit the investigation
-No third parties unless necessary to identify stolen property

Question 89

What is the search incident to arrest warrant exception?

Answer 89

Incident to a constitutional arrest, police may search the person and areas into which they might reach to obtain a weapon or destroy evidence. Must be contemporaneous with time and place of the arrest.

May make a sweep of the area if they believe accomplices may be present.

Question 90

When may police search an automobile incident to arrest?

Answer 90

May search the passenger compartment incident to arrest ONLY IF:
1. The arrestee is unsecured and may still 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

After arrest, police may make an inventory of an impounded vehicle at the station (including any containers within the vehicle).

Question 91

May police search cell phones incident to arrest?

Answer 91

They may search the physical attributes of the phone, but they need a warrant to examine data on a cell phone.

Question 92

What is the automobile exception to the warrant requirement?

Answer 92

If the police have probable cause to believe that a vehicle contains instrumentalities, fruits, 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. They may also tow the car to the station and search it later. Probable cause can arise after the car is stopped.

Question 93

What if the police only have probable cause to search a container? Can they search the entire car holding that container?

Answer 93

No, they can only search the container.

Question 94

What is the plain view exception to the warrant requirement?

Answer 94

The police may make a warrantless seizure when they:
-are legitimately on the premises;
-discover evidence, fruits, or instrumentalities of a crime or contraband;
-see such evidence in plain view; AND
-it is immediately apparent that the item is evidence, fruits, or instrumentalities of a crime or contraband

Question 95

What is the consent exception to the warrant requirement?

Answer 95

A warrantless search is valid if the police have voluntary consent. The person consenting need not know of their right to withhold consent.
-Police saying they have a warrant negates consent
-Any person with apparent equal right to use or occupy the property may consent to a search, but not if a co-occupant objects to a search directed against them.

Question 96

What is the stop and frisk exception to the warrant requirement?

Answer 96

The Terry stop, where an officer may stop a person without probable cause for arrest if they have articulable and reasonable suspicion of criminal activity and can frisk the person if they reasonably believe the person may be armed and presently dangerous.

During the patdown, the officer may seize any item that the officer believes based on “plain feel” is a weapon or contraband.

Question 97

What is the evanescent evidence exception to the warrant requirement?

Answer 97

Evanescent evidence may disappear quickly if the police take the time to get a warrant, so the police need not take the time to get a warrant before collecting it.

Question 98

What is the hot pursuit exception to the warrant requirement?

Answer 98

Police in hot pursuit of a fleeing FELON may make a warrantless search and seizure and may pursue the suspect into a private dwelling if necessary. Rule of thumb: within 15 minutes

Question 99

What is the emergency aid/caretaker exception to the warrant requirement?

Answer 99

Police officer may enter the premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public.

Question 100

What is the administrative inspection/search exception to the warrant requirement?

Answer 100

Generally more lenient standard for administrative/commercial searches and inspections. Warrantless searches for things like airline passengers prior to boarding, prisoners being admitted into the general prison population, drug tests of public school students participating in extracurriculars.

Question 101

Does wiretapping constitute a search?

Answer 101

Yes, a warrant is required for wiretapping. However, a speaker assumes the risk that the person to whom they are talking either consents to government monitoring or is an informer wired for sound. Additionally, there is no Fourth Amendment claim if they make no attempt to keep the conversation private.

Question 102

What is the effect of an involuntary confession being admitted into evidence?

Answer 102

Harmless error test applies. Conviction not overturned if there is other overwhelming evidence of guilt.

Question 103

What does the Sixth Amendment guarantee?

Answer 103

Right to counsel at all critical stages of a prosecution after judicial proceedings have begun. This includes post-indictment interrogation, preliminary hearings, arraignment, post-charge lineups, etc.

Question 104

Is the Sixth Amendment offense specific?

Answer 104

Yes. This means that they attach only for the charge for which a person is being held–the defendant may still be questioned regarding unrelated, uncharged offenses without violating the Sixth Amendment right to counsel.

Question 105

What is the remedy for failure to provide counsel under the Sixth Amendment?

Answer 105

-Nontrial proceedings = harmless error
-Trial = automatic reversal, even without a showing of specific unfairness

Question 106

Can a statement obtained in violation of a defendant’s Sixth Amendment right to counsel be used at all at trial?

Answer 106

Not admissible for the prosecutor’s case-in-chief, but can be used to impeach defendant’s contrary trial testimony.

Question 107

What are the Miranda warnings?

Answer 107

Required PRIOR TO a custodial interrogation to protect Fifth Amendment right against self-incrimination. Must be informed of:
-right to remain silent
-anything said can be used in court
-right to attorney
-attorney will be appointed if they can’t afford one

Question 108

When must Miranda warnings be given?

Answer 108

-Prior to a custodial interrogation
-If detainee knows they are being interrogated by a government agent

Question 109

When is there a custodial interrogation?

Answer 109

When a reasonable person under the circumstances would not feel they were free to terminate the interrogation and leave. The more a situation resembles a traditional arrest, the more likely it will be considered to be custody.

An interrogation is any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee.

Question 110

What are the defendant’s options after receiving Miranda warnings?

Answer 110

1. Do nothing - not a presumed assertion, so police can consider questioning
2. Waive rights - government must show by a preponderance of evidence that this was knowing and voluntary based on totality of circumstances.
3. Invoke right to remain silent - must be explicit, unambiguous, and unequivocal. Police must scrupulously honor this request, but can reinitiate questioning about a different crime after waiting a significant amount of time and re-Mirandizing.
4. Invoke right to counsel - detainee must unambiguously indicate that they wish to speak to counsel. Questioning must cease until counsel has been provided unless detainee subsequently waives their right to counsel or is released from custodial interrogation and 14 days have passed.

Question 111

Is evidence obtained in violation of Miranda admissible at trial?

Answer 111

Generally, not admissible under the exclusionary rule. May be used to impeach defendant’s trial testimony, but not as evidence of guilt.
-a subsequent valid confession is admissible if the original unwarned questioning was unplanned and failure to give Miranda was inadvertent
-if police purposefully fail to give Miranda warnings and use information from the interrogation to get nontestimonial evidence, the evidence will be suppressed (but not suppressed if failure was not purposeful).

Question 112

What is the public safety exception to Miranda?

Answer 112

Interrogation is permitted without Miranda warnings when it was reasonably prompted by a concern for public safety

Question 113

What is the remedy for an unconstitutional identification?

Answer 113

Exclusion of the in-court identification (unless the witness has an independent source)

Question 114

What is the exclusionary rule?

Answer 114

Judge-made doctrine that prohibits introduction of evidence obtained in violation of a defendant’s Fourth, Fifth, and Sixth Amendment rights. Includes unconstitutionally obtained evidence and “fruit of the poisonous tree” (evidence obtained from exploitation of the unconstitutionally obtained evidence).

Question 115

What are exceptions to fruit of the poisonous tree?

Answer 115

-Fruits derived from statements obtained in violation of Miranda, if not purposeful
-Evidence obtained from a source independent of the original illegality
-Evidence for which the connection between the unconstitutional police conduct and evidence is remote or has been interrupted by an intervening circumstance (causal link is broken or attenuated)
-Inevitable discovery (police would have discovered the evidence with or without the unconstitutional conduct)
-Violations of knock and announce
-

Question 116

Does the exclusionary rule apply if the police in good faith believed they were acting pursuant to a valid warrant or law?

Answer 116

No, with four exceptions:
-affidavit underlying warrant is so lacking in probable cause that no reasonable police officer would rely on it
-affidavit underlying warrant is so lacking in particularity that no reasonable police officer would rely on it
-police officer or prosecutor lied to or misled magistrate when seeking warrant
-magistrate is biased and has abandoned neutrality

Question 117

Can excluded evidence be used for impeachment?

Answer 117

Voluntary confessions taken in violation of Miranda can be used for impeachment, and evidence obtained from an illegal search can be used by prosecution to impeach the defendants’, but not others’ statements.

Question 118

What is the remedy for admitting illegal evidence?

Answer 118

Resulting conviction should be overturned on appeal unless government can show harmless error beyond a reasonable doubt.

Question 119

What rights do parties have in grand jury proceedings?

Answer 119

-Defendant has no right to notice or access
-Witness has not right to Miranda or counsel
-No right to have evidence excluded
-No right to challenge a subpoena
-Can quash a grand jury indictment if members of a minority group were excluded

Question 120

What is the standard for a speedy trial under the Sixth Amendment?

Answer 120

Evaluated by a totality of the circumstances, including: length of delay, reason for delay, whether defendant asserted their right, prejudice to defendant.

Right does NOT attach until defendant has been arrested or charged.

Question 121

What material must the prosecutor disclose?

Answer 121

Material, exculpatory evidence. Failure to do so is grounds for reversal if the defendant can provide that (1) the evidence is favorable to the defendant because it impeaches or is exculpatory AND (2) prejudice has resulted.

Question 122

What is the difference between insanity and incompetency?

Answer 122

Insanity is a defense to the criminal charge based on mental condition at the time the crime was committed. Incompetency is a bar to trial based on mental condition at the time of trial.

Question 123

For which offenses is there a constitutional right to a jury?

Answer 123

Only for serious offenses (where imprisonment for more than 6 months is authorized)

Question 124

How many jurors must there be? Must they be representative?

Answer 124

At least six, and their verdict must be unanimous. The venire must be representative, but there is no right to proportional representation of all groups on the particular jury.

Question 125

What is an impermissible basis for prosecutors to exercise peremptory challenges?

Answer 125

Solely on the basis of race or gender. If challenged, they must have a race- or gender-neutral explanation for the strike.

Question 126

When should a prospective juror be excluded for cause?

Answer 126

When the juror’s views would prevent or substantially impair the performance of their duties in accordance with their instructions and oath.

Question 127

When may a defendant waive their right to counsel and represent themselves at trial?

Answer 127

They may make such waiver if, in the judgment of the judge, it is knowing and intelligent and the defendant is competent to proceed per se (in terms of emotional and psychological state). No right to self-representation on appeal.

Question 128

How must a claimant show ineffective assistant of counsel?

Answer 128

Effective assistance of counsel is generally presumed. To rebut, claimant must show:
1. deficient performance by counsel (specific examples, not merely inexperience) AND
2. but for the deficiency, the result of the proceeding would have been different

Question 129

Is the right to confront witnesses absolute?

Answer 129

No, the Sixth Amendment does grant defendants the right to confront adverse witnesses but it is not required when preventing such confrontation serves an important public purpose.

Question 130

When can a co-defendant’s confession be admitted?

Answer 130

If…
-all portions referring to the other defendant can be eliminated
-the confessing defendant takes the stand and subjects himself to cross OR
-the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that their confession was obtained coercively

Question 131

When may prior testimonial statements be admitted?

Answer 131

If (1) declarant is unavailable and (2) defendant had opportunity to cross-examine at the time the statement was made.

Question 132

What is the burden of proof in a criminal case?

Answer 132

State must prove guilt beyond a reasonable doubt. Burden may be imposed on defendant for affirmative defenses.

Question 133

When should a jury instruction be given?

Answer 133

When the defendant or prosecution requests an instruction that is correct, has not already been given, and is supported by some evidence.

Question 134

What are the standards for taking a plea?

Answer 134

The judge must determine that the plea is voluntary and intelligent by addressing the defendant personally on the record. Defendant must know and understand nature of charge and its elements, maximum possible penalty and mandatory minimum, right not to plead guilty, and that they waive right to trial if they do plead guilty.

Question 135

What is the remedy for failure to meet standards for taking a plea?

Answer 135

Withdrawal of the plea and pleading anew.

Question 136

Against whom will a plea be enforced?

Answer 136

The prosecutor and defendant, but not the judge (the judge need not accept the plea)

Question 137

Is there a federal constitutional right to an appeal?

Answer 137

NO

Question 138

What is the burden of proof at a habeas corpus proceeding?

Answer 138

Petitioner must prove unlawful detention by a preponderance of the evidence, and may bring the action only if they are in custody.

Generally, all appeals must be exhausted before a petitioner turns to a habeas case.

Question 139

What is double jeopardy, and when does it attach?

Answer 139

Fifth Amendment prohibits a person being retried for the same offense once jeopardy has attached. It bars only repetitive criminal prosecutions, so a subsequent civil action can be brought.
-Jury trial: when jury is empaneled
-Bench trial: when first witness is sworn
-Juvenile proceeding: when proceeding commences

Question 140

What are the exceptions to double jeopardy permitting a retrial?

Answer 140

-First trial ends in hung jury
-Trial is discontinued due to manifest necessity
-Defendant who successfully appealed a conviction if reversal is based on weight rather than sufficiency of evidence; may not be retried for greater offense than which they were convicted
-Defendant breaches their plea bargain
-Defendant elects to have the offenses tried separately when they could have been tried in a single trial

Question 141

When are two crimes not the same offense?

Answer 141

When each crime requires proof of an additional element that the other does not require, even though some of the facts may be necessary to prove both crimes. However, multiple punishments are permissible if there was a legislative intent to have cumulative punishments.

Question 142

How does double jeopardy work with lesser-included offenses?

Answer 142

Attachment of jeopardy for a greater offense bars retrial for lesser included offenses and vice versa

Exception: if the unlawful conduct subsequently used to prove the greater offense has not occurred at time of prosecution for lesser offense or has not been discovered despite due diligence

Question 143

Does double jeopardy apply to trials by separate sovereigns?

Answer 143

No. A person may be tried for the same conduct by both the state and federal government or by two different states (but not by a state and its municipalities)

Question 144

Who may assert the privilege against compelled self-incrimination, and when may they assert it?

Answer 144

Any person (defendant, witness, party) in any type of case who is asked to answer a question that might incriminate them, but only natural persons (not corporations or partnerships).

May refuse to answer a question when their response might furnish a link in chain of evidence needed to prosecute (so you can refuse in civil proceedings to prevent privilege from being waived for a later criminal proceeding). A criminal defendant has the right not to take the stand, but in all other situations the person must be sworn in as a witness and listen to the questions.

Question 145

What sort of evidence does the Fifth Amendment privilege against compelled self-incrimination protect?

Answer 145

Only testimonial or communicative evidence, not real or physical evidence (so you can be compelled to produce documents).

Question 146

When does a violation of Fifth Amendment privilege against compelled self-incrimination occur?

Answer 146

When a person’s compelled statements are used against them in a criminal case

Question 147

May a prosecutor comment on a defendant’s silence?

Answer 147

No, not after they were arrested and received Miranda OR after they failed to testify at trial unless the defense counsel asserted the defendant was not permitted to do so. Silence prior to Miranda warnings can be used against them in court.

The harmless error test will apply.

Question 148

May a witness be compelled to answer questions if granted adequate immunity from prosecution?

Answer 148

YES, but it is coerced and not voluntary, so it can’t be used for impeachment.

Question 149

When is the privilege against compelled self-incrimination waived?

Answer 149

• Criminal defendant: when they take the witness stand (to the extent necessary to subject them to cross)
• Witness: if they disclose incriminating information

Question 150

Is there a right to trial by jury for juvenile proceedings?

Answer 150

No

Question 151

Does the Excessive Fines Clause apply to forfeitures?

Answer 151

Yes to penal forfeitures but not civil forfeitures (it only applies to fines imposed as punishment)