Criminal Law & Procedure

Question 1

McNaghten Insanity Defense

Answer 1

Mental illness prevented defendant from:
* Understanding the nature or quality of the criminal act OR
* knowing that his/her actions were wrong

EX: If the person who commits a murder knows that the killing is illegal and wrong, the person cannot be acquitted of murder in a JX that follows the McNaghten test

Question 2

Insanity Defense under the Model Penal Code

Answer 2

Mental illness prevented the defendant from:
*appreciating criminality of the act OR
*conforming conduct to law

EX: Person suffering from mental illness and knows that murder is illegal and bad, but her mental illness compelled her to kill the victim (i.e. prevented her from conforming her to conduct to the law)

Question 3

Robbery

Answer 3

Requires proof of the following:
* Defendant unlawfully took and carried away the victim’s property,
* The property was taken from the victim’s person or presence by force or threat of force; and
* The Defendant specifically intended to permanently deprive the victim of the property (i.e. intent to steal)

Question 4

Mistake of Fact (Specific Intent Crimes)

Answer 4

Honest mistake negates the specific intent — even if the belief was unreasonable.

Question 5

Solicitation

Answer 5

Is complete when a person (1) entices, encourages, requests, or commands another to commit a crime (2) with the specific intent that the solicited crime be committed. Factual impossibility is NOT a defense to solicitation.

Question 6

Attempt

Answer 6

Occurs when the Defendant (1) had the specific intent to commit a crime, (2) performed an act in furtherance of the crime, but (3) did not complete it.

Note: An overt act must go beyond mere preparation for the target crime.

Under the CL, the defendant is required to perform an act that is sufficiently close – in time and physical proximity– to completing the target crime (ie, dangerous proximity test).

Question 7

When can an initial aggressor claim self-defense?

Answer 7

When (1) the aggressor’s use of non deadly force was met with deadly force, or (2) the aggressor, in good faith, completely withdrew from the altercation and communicated that fact to the victim.

BUT NOTE — initial aggressor may not claim self-defense when he/she initially used deadly force against the victim

Question 8

Waiver of Right to Counsel

Answer 8

Must be knowingly, intelligently, and voluntarily. To ensure the standard is met, a judge must confirm on the record that the defendant is both:
* aware of the nature of the charges, the range of the punishment, and the disadvantages of self-representation; AND
* not being forced to choose between incompetent counsel and self-representation.

Question 9

Larceny

Answer 9

(1) unlawful taking and carrying away of the victim’s personal property (2) with the specific intent to permanently deprive the victim of that property

Question 10

Embezzlement

Answer 10

Occurs when a person is in lawful possession of another’s property and fraudulently converts it

Question 11

False pretenses

Answer 11

Requires proof that the defendant (1) knowingly misrepresented a past or existing material fact (2) with the intent to defraud and (3) thereby obtained title to another’s property

Question 12

Accomplice

Answer 12

A person who aids or encourages the principal before or during a crime can be convicted as an accomplice if those acts were intended to further the principal’s criminal aim.

NOTE: Mere presence at the scene of a crime does not amount to aid or encouragement and therefore is insufficient to make a person an accomplice

Question 13

Malice crimes require proof that

Answer 13

the defendant was practically certain that his/her act would cause a particular result (knowledge) or consciously disregarded a substantial and unjustifiable risk of harm (recklessness)

Question 14

Fourth Amendment search without a warrant based on probable cause

Answer 14

Presumptively unreasonable, and any evidence stemming from the search may be excluded at trial

Question 15

Can officers search open fields without warrant?

Answer 15

Yes. Government intrusion upon open fields does not trigger Fourth Amendment protections since open fields are not constitutionally protected areas and persons have no reasonable expectation of privacy in those areas

Question 16

Can someone “burglarize” a home that is abandoned?

Answer 16

No. Although a structure does not need to be occupied at the time of the burglary, it CANNOT be abandoned.

Question 17

Can a juvenile who committed a non-homicide offense be sentenced to life without parole?

Answer 17

No. The 8th Amendment prohibits imposing a sentence of life in prison without the possibility of parole on a juvenile convicted of a nonhomicide offense.

Question 18

Can a tenant remove a trade fixture (i.e. personal property that tenant attaches to land for business/trade use)?

Answer 18

Yes; however, after removal, the tenant must reasonably restore the property to its prior condition or pay restoration costs.

Question 19

Plain view exception

Answer 19

For the warrantless seizure of an item under the plainview exception, the police must:
(1) be legitimately on the premises where the item is found;
(2) the item must be evidence, contraband, or fruit or instrumentality of a crime;
(3) the item must be in plain view; and
(4) it must be immediately apparent (probable cause) that the item is evidence, contraband, or fruit o instrumentality of a crime

Question 20

Can police search a cell phone w/o a warrant?

Answer 20

No, search of a cellphone w/o a warrant violates a person’s 4th Amendment right because a person has a reasonable expectation of privacy (REP) in cellphone data

Question 21

Rape

Answer 21

Sexual intercourse with another without that person’s consent. General intent crime, which means that the defendant must consciously perform the unlawful act.

Mistake of fact is a defense if the defendant’s honest, reasonable, but mistaken belief negated the requisite mental state. I.e. in rape cases, the mistake must have negated the intent to engage in nonconsensual sexual intercourse with the victim.

Question 22

Statutory rape

Answer 22

Strict liability crime and mistake of fact is NEVER a defense. Statutory rape involves rape against an individual below the age of consent

Question 23

Is duress (human threat) or necessity (natural or human threat) a defense to murder?

Answer 23

No

Question 24

Is assumption of risk an affirmative defense to intentional torts?

Answer 24

No; assumption of risk is an affirmative defense to negligence and strict liability.

Question 25

Double Jeopardy

Answer 25

Double jeopardy prohibits multiple punishments or a second prosecution for the same offense. Two crimes are considered the same offense when they have identical elements or when every element of one crime (eg, an underlying felony) is also an element of the other crime (eg, felony murder)

Question 26

False Pretenses vs. Larceny by trick

Answer 26

Both require the taking of personal property by another by an intentional false statement of past or existing fact, with the intent to defraud the other. However, the distinction is based entirely on what is received due to the fraud.

False pretenses — title to the property is obtained

Larceny by trick — mere possession of the property is obtained

Question 27

Forgery

Answer 27

Occurs when a person makes a false document of apparent legal significance with the intent to defraud.

NOTE: a person who makes a false instrument of social significance can be liable for false pretenses if he/she:
(1) knowingly misrepresented a past or existing material fact;
(2) did so with the specific intent to defraud; and
(3) thereby obtained title to another’s property or money

Question 28

6th Amendment Right to Counsel

Answer 28

Automatically attaches once judicial proceedings commence and guarantees a defendant access to an attorney during all critical stages of the prosecution — including interrogatories conducted by law enforcement officers and undercover police informants.

Question 29

Is a statement obtained by an undercover informant in violation of the 5th Amendment privilege?

Answer 29

No. Under the 5th Amendment, law enforcement must give Miranda warnings before interrogation to police. When interrogated by undercover informant, no Miranda warnings required.

Question 30

5th Amendment privilege against self-incrimination

Answer 30

Protects suspects from being compelled to prove self-incriminating evidence that is testimonial or communicative in nature. For example, the compelled act of producing a document is privileged if that act would prove that: (1) the document exists, the suspect possesses the document; or (3) the document is authentic (ie was created or written by the suspect)

NOTE — contents of a document are not protected by the privilege since the suspect was not compelled to create the content

Question 31

When can self-incriminating testimony (i.e. from a defendant’s diary) be compelled?

Answer 31

When the government grants use and derivative use immunity

Question 32

Use and derivative use immunity

Answer 32

Prevents the government from using self-incriminating testimonial communications (and any evidence derived from them) against the suspect in any way that could lead to a criminal prosecution (eg, to obtain a grand jury indictment)

Question 33

Transactional immunity

Answer 33

Protects the suspect from being prosecuted for any crimes associated with self-incriminating testimonial communications

Question 34

Can statements taken in violation of Miranda be used to impeach defendant’s inconsistent testimony?

Answer 34

Yes. Such statements can be used for limited purpose of impeaching the criminal defendant’s inconsistent testimony if they were voluntary and trustworthy.

Question 35

Accomplice

Answer 35

Someone who (1) intentionally aids or encourages another (the principal) before or during a crime, (2) with the intent that the crime be completed — making both parties equally liable for the crime.

Question 36

Accomplice

Answer 36

Someone who (1) intentionally aids or encourages another (the principal) before or during a crime, (2) with the intent that the crime be completed — making both parties equally liable for the crime.

Question 37

Possession offenses require proof that the defendant:

Answer 37

(1) knowingly received an illegal item, or (2) exercised dominion and control over the item after learning of its illegal character.

Question 38

Attempt

Answer 38

Inchoate crime that requires proof of the following: (1) defendant had the specific intent to commit a crime (eg, murder); (2) performed an overt act in furtherance of the intended crime but (3) did not complete it.

Question 39

What does attempted murder require proof of?

Answer 39

Proof that the defendant specifically intended to kill the victim.

NOTE – this is true even though a completed murder can be established without showing an intent to kill – i.e., when there is some other type of malice aforethought.

Question 40

False imprisonment

Answer 40

(1) defendant’s act/omission confines or restrains the plaintiff to a bounded area (the plaintiff must believe that there’s no reasonable means of escape), (2) defendant intended to confine/restrain plaintiff, and (3) causation.

*NOTE: Must prove that the person intended to confine

Question 41

Receiving stolen property

Answer 41

The crime of receiving stolen property is committed when a person:
(1) receives property that he/she knows was stolen; and
(2) with the intent to permanently deprive another of that property.

Question 42

Accessory after the fact

Answer 42

An accessory after the fact is a person who aids or assists another (ie, the principal) by helping the principal avoid apprehension or conviction after the crime has been completed.

Question 43

What does common law conspiracy require?

Answer 43

(1) an agreement between two or more persons to commit a crime that is (2) entered with the specific intent to accomplish that crime.