Criminal Law & Procedure

Question 1

Actus Reus

Definition + Where it Is Found

What is Needed to Satisfy?

When does Omission satisfy Actus Reus? (3 elements)

Answer 1

the act required to commit a given crime; found in all common law crimes + mens rea

voluntary, physical act by D

1) specific legal duty to act; AND 2) D has knowledge of facts creating duty to act; AND 3) it is reasonably possible for D to perform the duty

Question 2

Mens Rea

Types of Mens Rea (3 types)

Definition + Where it Is Found

When is there no Mens Rea Requirement?

Answer 2

(1) general intent: D is aware of his actions & circumstances; can be inferred.
(2) specific intent: D has the objective to commit a crime; cannot be inferred
—> defenses include voluntary intoxication & mistake of fact
(3) malice: reckless disregard or taking risks where harm would be the expected result

mental element needed @ time of crime;found in all CL crimes+actus reus

Strict Liability Crimes

Question 3

MPC has specific mens rea terminology

What are the 4 terms? What do they mean?

Answer 3

1. Purposely–subjective standard; D acts purposely when his conscious object is to engage in certain contuct or achieve a certain result.
2. Knowingly–subjective standard; D is aware his conduct will/likely will cause a particular result.
3. Recklessly–subjective standard; D knows of a substantial and unjustifiable risk but consciously disregards it.
4. Negligence–objective standard; D fails to be aware of a substantial and unjustifiable risk.

Question 4

Define concurrence

Define causation

define the two types of causation

What should you look for with proximate cause?

Answer 4

• Concurrence: D’s criminal act must occur while he has the relevant mens rea
• Causation: D’s conduct must be both the cause in fact & proximate cause of the crime

Cause-in-fact: but-for D’s conduct, the crime wouldn’t happen.

Proximate Cause: actual result of D’s conduct is the natural & probable cause (look for intervening and superseding causes)

Question 5

Proximate Cause

What is an intervening cause?

When is it a defense for D?

Answer 5

an event that is entirely unforeseeable to D

when it is so unforeseeable that the chain of causation should be broken

Question 6

Proximate Cause

What is a superseding cause?

Answer 6

an event that breaks the causation chain of liability to D

Question 7

There are 10 of them

What are the specific intent crimes?

Answer 7

1. Attempt: intent to complete the crime
2. Larceny & Robbery: intent to permanently deprive someone of their personal property
3. Forgery: intent to defraud
4. False Pretenses: intent to defraud
5. Embezzlement: intent to defraud
6. Conspiracy: intent to aid in the completion of a crime
7. Assault: intent to commit battery
8. Burglary: intent to commit a felony within another person’s dwelling
9. 1st Degree Murder: deliberate act or premeditation
10. Solicitation: intent to have solicitee commit the crime

Question 8

Accomplice Liability

Who is an accomplice? What can they be held liable for? What defenses do they have available?

What is the difference between this and accessory after the fact?

Answer 8

• someone who aids, encourages, or counsels another in commiting a crime with the intent to do so. Presence alone is insufficient.
• Accomplices can be liable for the originally inteded crime and all other foreseeable crimes resulting from their conduct.
• (1) withdrawal by negating or revoking aid; (2) member of a protected class like minors; (3) crime is not intended to target the accomplice (drug buyer)

Accessory after the fact is a lesser charge of obstruction of justice for helping someone avoid or escape apprehension

Question 9

Mens Rea of Major Crimes

Name the 4 General Intent Crimes; 2 Malice Intent Crimes; and 4 Strict Liability Crimes

Answer 9

General Intent:
(1) battery, (2) rape, (3) kidnapping, (4) false imprisonment.

Malice Intent: (1) CL murder with malice aforethought, (2) Arson

Strict Liability: (1) statutory rape, (2) regulatory crimes, (3) administrative crimes, (4) morality crimes

Question 10

Transferred Intent Doctrine

When is D liable?

What is the effect?

Answer 10

D is liable if either: (1) the intended harm occurs to an unintended victim or object, OR (2) D intends to commit crime A but actually commits crime B.

D is charged with 2 crimes: the attempted and failed crime, and the crime that actually occurred.

Question 11

Solicitation

What is the definition? When is it completed? What are the defenses?

What happens if solicitee agrees?

Answer 11

Defined: inciting, urging, or asking another to commit a crime with the intent for them to follow through on that request.

Solicitation is complete when D asks the solicitee to do the felony.

The following are not defenses: refusal by solicitee, impossibility of crime, withdrawal

MPC says renunciation is a defense, but CL says no.

Charge merges to become conspiracy

Question 12

Conspiracy

What are the four elements of conspiracy? When does the conspiracy end? What defenses are available?

Answer 12

1) agreement between 2+ parties!
2) intent to enter the agreement
3) intent to commit the crime or pursue an unlawful objective
4) overt act in furtherance of the crime (slight act ok; not required under CL)

Conspiracy ends when the crime is completed.

There is no defense to conspiracy, but D can withdraw from the conspiracy so as to remove liability from any subsequent crimes his conspirators might commit.

!express agreement isn’t required; knowledge of the other parties not required

Question 13

Co-Conspirator Liability

When are you liable for the crimes of your co-conspirators? What happens if your co-conspirator is acquitted? How do you withdraw from the conspiracy to sever liability from subsequent crimes they may commits?

Answer 13

As a conspirator, you are liable for your co-conspirators’ foreseeable crimes and crimes done in furtherance of the conspiracy.

If one is acquitted, none can be charged.

To withdraw from the conspiracy, D must (1) affirmatively withdraw (2) in a timely manner so that conspirators have a chance to abandon their plans, and (3) D’s withdrawal is an attempt to mitigate the aid he has already provided.

Question 14

Attempt

What is the definition? What are the relevant elements? Are there any defenses?

Answer 14

An act done with the intent to commit a crime. The act is an overt or substantial step towards commiting the crime, but it falls short.

Overt act=more than preparation
Substantial Step=act taken towards committing the intended crime
Intent=goal of act is to commit a specific crime

Defenses:
Legal impossibility can be used.
Factual impossibility cannot.
Abandonment of the attempt is not a defense.

Question 15

Merger

What happens when merger applies? What crimes does it apply to?

What about crimes with different victims or conspiracy?

Answer 15

the inchoate offense becomes the target offense, and D is charged with the target offense.

Merger only applies to solicitation and attempt

Never

Question 16

Insanity

What are the 4 tests for insanity?

Answer 16

M’Naghten–D doesn’t know right from wrong, so D lacked the abiolity to know the wrongful nature of his conduct or consequences.

Irresistable Impulse–D cannot control an impulse to act, so D can’t make his conduct comply with the law.

MPC– Combination of M’Naghten and Irresistable Impulse so that D lacked the ability to appreciate the criminality of his conduct or control his actions.

Durham–but-for D’s mental illness, D would not have acted, so the conduct was a product of D’s mental illness.

Question 17

Additional Liability Considerations

infancy, diminished capacity, due process

Answer 17

Infancy: if under 7–> no criminal liability. If 7-14–> rebuttable presumption against criminal liability.

Diminished capacity: based on D’s mental defect, this is a defense if D can show that the mental defect prevented him from having the required mens rea of a specific intent crime.

Due Process: D’s mental condition during trial must allow him to assist his lawyer in his defense and understand the charges being brought against him.

Question 18

Define the two types of intoxication

Answer 18

Voluntary Intoxication: a defense to specific intent crimes, but it is not available if D used the intoxicant as a way to gain courage to commit the crime.

Involuntary intoxication: defense to all crimes where D is given an intoxicant without her knowledge or forced to consume the intoxicant

Question 19

When can D use non-deadly force as a self defense?

Answer 19

when D is not the initial aggressor and reasonably believes it is necessary to protect himself from imminent unlawful force.

The NDF must be proportional to the threat

Question 20

When can D use deadly force as self defense?

Answer 20

when D is not the initial aggressor and is confronted with force that threatens imminent death or great bodily harm

Majority says there is no duty to retreat; minority says retreat if safe

Question 21

If D is the initial aggressor, how can he regain right to use self defense?

Answer 21

You must withdraw and communicate your intent to withdraw, or the initial victim must escalate the threat into a deadly altercation

Question 22

When is it ok for police to use deadly force?

Answer 22

Police can use deadly force to prevent the esacpe of a fleeing felon who poses serious threat of death or bodily harm

Question 23

When is it ok for police to use non-deadly force?

Answer 23

Police can use NDF when it is necessary to reasonably effectuate an arrest

Question 24

When is it okay for citizens to use deadly force?

Answer 24

only to prevent the escape of a person who commits a felony and threatens human life

Question 25

When is it okay for citizens to use non-deadly force?

Answer 25

when a crime is actually committed and the citizen has a reasonable belief that the person on which the force is used is the perpetrator

Question 26

How can you defend your home? How can you defend property that isn’t your home? How can you go about the recover of stolen property?

Answer 26

Only NDF is allowed to prevent or terminate unlawful entry into one’s Dwelling

NDF may be used to protect other property after you have requested that the interference cease

No force is allowed to regain property unless it is done in the immediate pursuit of the perpetrator

Question 27

Define these three defenses: Necessity, duress, and Consent

Answer 27

Necessity: does not apply to crimes involving death of others or where D created the situation of necessity–>defines if crime is reasonably necessary to avoid an imminent & greater injury to society. This test is objective–Was D’s crime reasonably necessary to avoid a greater injury to societ?

Duress: D committed the crime under a reasonable belief that it was necessary to prevent deat or serious bodily injury to D or D’s family–not a defense to homicide.

Consent: victim consents to D’s criminal conduct. consent must be given freely by a capable party.

Question 28

Define the elements of entrapment

Answer 28

1) criminal design was created by the police
2) D was not otherwise predisposed to commit the crime

very narrow if D has a criminal history

Question 29

When is mistake of law a defense?

Answer 29

almost never a defense UNLESS:
1) D reasonably relies on an invalid statute and
2) the crime requires a knowledge element

Question 30

When is mistake of fact a defense?

Answer 30

When it negates the relevant mens rea for the crime.
Specific intent crimes –> any mistake of fact ok
General intent & Malice–> reasonable mistakes of fact
Strict Liability–> no mistake of fact allowed

Question 31

Define Assault

Answer 31

Assault as a threat is a general intent crime. It is the intentional creation of reasonable apprehension by the victim of imminent bodily harm. If touching is involved, it becomes battery.

Assault as attempted battery occurs when there is a specific attempt

Question 32

Define Battery

Answer 32

Unlawful application of force to the person of another resulting in bodily injury or offensive touching

Question 33

What is the CL definition of Rape?
What is the Modern Statutory Definition?

Answer 33

CL: unlawful carnal knowledge of a woman by a man other than her husband (slightest penetration is sufficient)

Modern: lack of effective consent is present if:
- intercourse is accomplished by force or threat of Imminent bodily harm
- the victim is incapable of consenting due to lack of capacity
- the fictim is fraudulently cause to believe that the act is not intercourse

Question 33

What makes an assault or battery aggravated?

Answer 33

when a weapon is used

Question 34

Define False Imprisonment. Define Kidnapping.

Answer 34

False imprisonment is the unlawful confinement of a person without their consent. Consent cannot be obtained through coercion, threat, or deception.

Kidnapping is false imprisonment that involves either movement of the victim or concealment of the victim in an unknown, hidden, secret location.

Question 35

Define Murder, Malice aforethought, and the mental states required under malice aforethought

Answer 35

Murder is unlawful killing of another with malice aforethought. Malice afortheought arises when no mitigating facts reduce the killing to a lesser crime, and D kills with one of the following mental states:
- Intent to kill
- Intent to inflice grave bodily injury
- depraved/malignant heart/reckless indifference to life
- felony murder (inherently dangerous or statutory)

Question 36

Statutory Modifications to Common Law Murder

Answer 36

First degree murder: the killing is deliberate and premeditated (D acts in a dispassionate manner and considered his actions, even if momentarily) OR felony murder (killing during an enumerated felony.

Second degree murder: all other homicides

Question 37

Felony Murder

Answer 37

Killing during the commission of a certain crime. The intent required is the intent to commit the underlying felony (either inherently dangerous or statutorily stated).

Liability is limited to when:
- D must be guilty of the underlying felony
- underlying felony isn’t a killing act
- victim’s death must be foreseeable from conduct
- victim’s death must be caused before D reaches a place of temporary safety
- D is not liable for police or victim killing of co-felon

Question 38

Voluntary Manslaughter

Answer 38

A killing resulting from adequate provocation:
- provocation would cause sudden and intense passion in any ordinary person, causing him to lose control
- D actually was provoked and lost control
- There was insufficient time bewtween the provocation and act for an ordinary person to cool off. (subjective & fact based)
- D did not cool off.

Provocation is not a defense but a mitigating factor for murder.

Question 39

Involuntary Manslaughter

Answer 39

A killing committed with criminal negligence or during the commission of an unlawful act that doesn’t fall into felony murder.

Criminal negligence: arises if D is grossly negligent

Commissio of an unlawful act: any felony or misdemeanor not giving rise to liability under felony murder.

Question 40

Larceny

Define Larceny & its elements

Answer 40

Defined: taking and carrying away of another’s tangible peroperty without consent and with the intent to permanetly dispossess the person of the property.

Elements:
- Taking: obtaining or possessing control (D cannot already have control)
- Carrying away: even slightest movement
- Without Consent: against the victim’s free will
- Intent to Dispossess: specifric intent that must be present at the time of taking
- Permanent: unreasonable amount of time

NOT Continuing Trespass which is borrowing without returning.

Question 41

Define Embezzlement & Its Elements

Answer 41

Defined: Fraudulent conversion of another’s property by one in lawful posession.

Elements:
Lawful possession at the time of conversion. (if not in lawful possession–>larceny)
Intent to restore: if D take the property with the intent to return the exact same property, there is no embezzlement.

Question 42

Define False Pretenses and Define Larceny By Trick

What is the difference?

Answer 42

False Pretenses: obtaining title to another’s proeprty using false statements of past or existing fact with the intent to defraud. NOT misrepresentations about the future.

Larceny by Trick: obtaining possession of another’s property using false statements of past or present facts.

False pretenses acquires TITLE; more than possession obtained in Larceny by Trick

Question 43

Receipt of Stolen Property

What about Sting Operations?

Answer 43

Receiving possession and control of private property known to have been illegally obtained with the intent to permanently deprive the owner of their personal property.

Manual or constructive possession OK.
D must know or should know the property is stolen.

Can be charged with attempt if D believed the property stolen, but no actual receipt because property isn’t stolen.

Question 44

Forgery

Answer 44

Creating or altering a document with purported legal significance to be false in a legally significant manner with the intent to defraud.

Actual success with fraud not required.

Question 45

Robbery and Extortion

Answer 45

Robbery is assault or batter + larceny. Denied, it is the wrongful taking of another’s PP from him by force or threat of injury with the intent to permanently deprive him of PP. The threat must be to D, D’s family, or another person present, and D must give up his PP BECAUSE of the threat.

Extortion is obtaining property through threats of future harm or exposing information. It does not require a taking, but the key is the threat to the future.

Question 46

Burglary

Answer 46

Breaking & entering into the dwelling of another at nighttime with the intent to commit a felony.

Notes:
Breaking: actual or constructive ok–no consent or open doors
Entering: placing any body part or instrument inside the dwelling
Nighttime: ONLY required under CL
Felony requirement: modern statutes include misdemeanors and attempts of all crimes.

Question 47

Arson

Answer 47

Malicious burning of the dwelling of another.
Malicious=with intent or extreme recklessness
Burning=fire
dwelling=CL requirement; MBE allows for nonresidential properties
Damage must be at least charring or property.

Question 48

Exclusionary Rule; Fruit of the Poisonous Tree & its exceptions; Remedies to Exclusionary Rule

Answer 48

Prohibits introducing evidence obtained in violation of D’s constitutional rights in a criminal trial.

Fruit of the Poisonous Tree Doctrine: evidence derived or obtained from illegal conduct by law enforcement is excludable against D.

Exceptions: When governement can break chain of evidence (3-ways)
Independent source of evidence outside of the illegal source, the inevitable discovery doctrine, or intervening willful acts of D.

Remedy to the exclusion rule can occur if P can show that it was a harmless error beyond a reasonable doubt.

Question 49

Limitations on the Exclusionary Rule and Good Faith Exception

Answer 49

The exclusionary rule does not apply outside of the criminal TRIAL. It is also inapplicable for knock & announce violations or evidence gained in violation of Miranda rights.

Confessions gained in violation of Miranda can be used to impeach D’s testimony at trial.

Good Faith Exception: when law enforcement reasonably rely on a defective search warrant, or a judicial opinion or statute later changed or invalidated.

Question 50

Arrests & requirements for arrest

Answer 50

An arrest occurs when police take D into custody for purposes of criminal prosecution or interrogation.

Probable cause is required: trustworthy facts sufficient for a reasonable person to believe D has committed or plans to commit a crime. A warrant is required when an arrest occurs within the arrestee’s curtilage.

Question 51

Detentions

Answer 51

Detentions are seizures of a person that amount to less than an arrest. Examples include:
1) stop and frisk –> reasonable suspicion
2) car stop –> reasonable suspicion
3) @ police station –> probable cause
4) during search warrant –> probable cause
5)@ premises of search warrant –> no cause but cannot search the persons without a warrant.

Question 52

Validity of Search and Seizure

Answer 52

Reasonableness: Is there government conduct constituting a search or seizure? If yes, 4A applies.

Does D have standing? D must have standing to have REOP.

Is there a valid search warrant? If no, is there an exception to the search warrant requirement?

Exceptions: SIA, plain view doctrine, auto vehicle search, consent, exigent circumstances (hot pursuit), and stop & frisk.

Question 53

Reasonable Expectation of Privacy

Answer 53

There is no REOP in public things.
REOP always exists if D owns, possesses, or lives in the place being searched. He also has a REOP of his living space when he is an overnight guest.

Question 54

Requirements for a Search Warrant

Answer 54

Must be
- based on probable cause
- precise on its face
- issued by a neutral magistrate

Question 55

Execution of a Search Warrant

Answer 55

Timing must be without unreasonable delay once issued.

Knock and announce at the door and wait a reasonable amount of time unless the warrant has found reasonable suspicion that knocking would be dangerous or futile.

The scope of the search includes any evidence of criminal activity within plain view. You can detain people present, but you can’t search the without a warrant.

Question 56

Valid Warantless Searches

6 types

Answer 56

1) Search Incident to Arrest
2) Plain View
3) Consent
4) Car Stop
5) Stop & Frisk
6) Exigent Circumstances (hot pursuit)

Question 57

Search Incident to Arrest

Answer 57

Requirements:
Lawful arrest
Search is contemporaneous with Arrest
Search is limited to D’s immediate grab area and person

Protective sweeps for officer safety are okay.
Inventory searches are ok.

In cars: can look inside the car but not the glove box or trunk without warrant, but only when D has not yet been secured and removed from the vehicle.

Question 58

Plain View Searches: requirements & scope

Plain Smell

Answer 58

Police may make a warrantless seizure based on plain view if: they are legitimately on the premises, the evidence of criminal activity is immediately apparent, and they have probable cause to believe the evidence in plain view is criminal.

Scope: Can’t use technology that lets you extend vision in a way eyes could not be used (infrared).

Included with plain view

Question 59

Consent to Search: Requirements, Scope, and 3rd Party Rules

Answer 59

Police can search with consent when: the consent is volunarily and intelligently made, and the perosn consenting must be reasonably likely to have authority to do so.

Scope: consenting party can limit the scope of the search

3rd Party Consent: if multiple people have rights to the space, anyone can consent to a search but refusal by another party trumps this consent. The choice of the parties residing in the home trumps the choce of the landlord.

Question 60

Automobile Search Exception

Answer 60

If PC exists, police can search the entire vehicle including the trunk and any containers inside.

PC must exist BEFORE the search begins.

Scope includes passengers, their belongings, and any containers.

Question 61

Auto Stops & Police Checkpoints

Answer 61

Auto Stops require RS that a law is being broken, but pretext is irrelevant. All passengers have standing to challenge the stop.

Searches during the stop are ok if searching passengers and inside the car for weapons. If PC arises, the entire car can be searched for other evidence.

Checkpoints: OK when directly related to making driving safer. DUI checkpoints okay when the method for stopping vehicles is a neutral, articulable standard.

Question 62

Stop and Frisk

Answer 62

Police can detain a person for investigative purposes if there is RS of criminal activity.

The length of the detention is no longer than necessary to verify suspicion. The frisk can only be done if there is RS that the person is armed and dangerous. Frisk is for weapons ONLY. Plain touch does not allow for manipulation of objects.

Question 63

Hot Pursuit, Emergency Search, Evanescent Evidence

Answer 63

Hot pursuit: while actively pursuing a fleeing felon, police can search for anything related to the pursuit or search areas for their protection.

Emergency: can search if there is a greater public emergency like terrorism or a bomb threat.

Evanescent Evidence: can be taken if it might disappear during the time it take police to get a warrant. (I.e. drugs, DNA, bloody shirt)

Question 64

Administrative Searches & Public School Searches

Answer 64

Administrative searches: government agencies can conduct routine inspections in cases such as safety and building code inspections. A warrant is required for private residences and commercial buildings, but it can be general.

Public Schools may drug test students who participate in after school extracurriculars.

Question 65

Border Searches & Immigration Searches

Answer 65

Borders are any places where someone can arrive into the US. Police may conduct routine searches on persons and their possessions without a warrant, reasonable suspicion or probable cause. BUT, detention at the border for nonroutine searches requires reasonable suspicion.

Police may raid a business to determine the citizenship status of its employees.

International mail can be searched with RS it is contraband.

Question 66

Wiretapping and Eavesdropping

Answer 66

Electronic surveillance is a search under 4A, so it requires a warrant.

The warrant must have:
Probable cause, names of subjects to be surveilled, particular topics of discussion to be listened to, limited to short periods of time, and wiretap will end once info is obtained.

No warrant needed when one party to the convo is consenting to recording.

Question 67

5A Right against Self-Incrimination

Answer 67

Any person in a civil or criminal trial can refuse to answer questions to avoid self-incrimination.

5A right to remain silent is available for compelled statements and testimonial evidence.

5A right is NOT availible if D has immunity, the SOL is over and self-incrimination is impossible, or if D has validly waived the right.

Question 68

Miranda Rights

Answer 68

When D is in custody and interrogated, Miranda applies. Custoday is when D does not feel free to leave. Interrogation occurs when police try to elicit incriminating statements from D.

Miranda warnings must include:
- the right to remain silent
- anything D says can be used against him
- D has right to an attorney, or if D can’t afford one,
- D has the right to an appointed attorney.

Question 69

Invoking & Waiving Miranda Rights