Criminal Law/Procedure

Question 1

Self-Defense by Aggressor

Answer 1

Only if:
- withdraws from altercation and communicates that intent; and
- other suddenly escalates fight with deadly force and withdrawal is impossible.

Question 2

Attempt and Underlying Crime

Answer 2

They merge, so cannot be convicted of both attempt and commission of crime.

Question 3

Legal or Factual Impossibility

Answer 3

Legal impossibility: defense to attempt. E.g., cannot violate law where mistaken about what law requires (curfew).

Factual impossibility: not defense to attempt. E.g. guilty of attempted murder if trigger jams and gun will not fire.

Question 4

Is withdrawal or abandonment a defense to attempt?

Answer 4

Not in most jurisdictions once person takes substantial step towards completing crime.

Minority allow defense before completion of crime if:
- voluntarily renounce criminal purpose; and
- completely abandon effort to commit or otherwise prevents commission.

Question 5

Involuntary Manslaughter from criminal negligence

Answer 5

Exists in some jurisdictions where
- know or should have known conduct had high or unreasonable risk of death, and
- actions were gross deviation from those of reasonable person.

Question 6

Does Miranda apply to confession to fellow inmate or informant?

Answer 6

No, unless compulsion or coercion exists.

Question 7

When does 4th Amendment Seizure Exist?

Answer 7

Reasonable person would believe he is not free to leave.

Question 8

Warrant and Plain View Doctrine

Answer 8

Do not need warrant to seize item
- in plain view (with any of 5 senses)
- from place police lawfully permitted to be;
AND
- probable cause to believe item is evidence of crime or contraband.

Question 9

Warrant and Exigent Circumstances

Answer 9

Do not need warrant if
- evidence is evanescent (will dissipate or disappear);
- necessary to prevent imminent destruction of evidence;
- in hot pursuit of felon and in plain view;
OR
- emergency aid exception.

Question 10

Warrant and Automobile Exception

Answer 10

Do not need warrant if probable cause exists that contraband/evidence of crime will be found in vehicle.

Can search entire vehicle plus package, luggage, and other container if may reasonably contain item for which PC exists.

Search after traffic stop requires PC before stop.

Question 11

Custodial Interrogation

Answer 11

Person reasonably believes they are not free to leave
AND
Police knew/should know likely to elicit incriminating response.

Question 12

What does Miranda protect?

Answer 12

Statements and acts that are communicative or testimonial in nature.

Crying is not protected.

Question 13

Public Safety and Miranda

Answer 13

Exception allows for limited interrogation WITHOUT Miranda warning for questions reasonably prompted by public safety concern or safety of officer (e.g., to secure weapon).

Question 14

Invocation of Miranda

Answer 14

Must be clear and unambiguous.

Once invoked, police must stop ANY questioning.
Cannot comment on D’s silence at trial.

Question 15

Waiver of Miranda rights

Answer 15

Valid = knowing, intelligent and voluntary.

• understands nature of right being waived and consequences of waiver

Question 16

Line-ups and 14th Amendment Due Process

Answer 16

Violated when line-up is unnecessarily suggestive, resulting in substantial likelihood of misidentification.

Inadmissible at trial if violated due process.

Question 17

Exclusionary Rule

Answer 17

Evidence obtained in violation of 4, 5, or 6 Amendment is inadmissible at trial.

All derivative evidence also inadmissible as fruit of poisonous tree.

Question 18

Right to Jury Trial

Answer 18

6th Amendment

Offense where imprisonment is greater than 6 months.

Minimum of 6 jurors and unanimous verdict.
Any factor (other than prior conviction) that increases max penalty must be submitted to jury and proved beyond reasonable doubt.

Question 19

Double Jeopardy: Final Judgment on Lesser Offense

Answer 19

Bars prosecution of greater offense on same facts UNLESS greater offense (a) did not exist at time of trial OR (b) was not discovered despite due diligence.

Question 20

Presumptions for Jury Instructions

Answer 20

Rebuttable: May be disputed or overcome by additional evidence. Violates Due Process if it shifts burden of proof to defendant. E.g., person receiving goods shortly after stolen knows of theft.

Irrebuttable: Cannot be disputed or overcome. Per se violation of Due Process. E.g., child under 7 cannot commit felony.

Question 21

Sufficiency of Evidence (criminal)

Answer 21

Court must enter Judgment of Acquittal if evidence insufficient to sustain conviction (reasonable jury would not find each element proved beyond reasonable doubt).

Defense may move at close of its case-in-chief OR after close of all evidence.

Question 22

Common Law Mens Rea

Answer 22

• Specific intent (to act or cause result)
• General intent (awareness of act)
• Malice (reckless disregard known risk of harm may occur)
• Strict liability (no mental requirement, only action)

Question 23

Model Penal Code Mens Rea

Answer 23

• Purposeful (conscious object to act or cause result)
• Knowing (aware conduct is of particular nature or will cause certain result)(includes willful blindness: aware of risk but intentionally ignorant to certain facts)
• Reckless (conscious disregard of substantial and unjustified risk of result, and gross deviation from acts of lawful reasonable person)(includes voluntary intoxication)
• Criminal negligence (should be aware of substantial and unjustified risk, and failed to perceive behavior was gross deviation from acts of lawful reasonable person)

Question 24

Knock-and-Announce Rule and Exceptions

Answer 24

• Police entering dwelling to execute search warrant must (1) knock on door, and (2) announce identity and purpose before attempting forceable entry.
• No-knock justified if exigent circumstances exist: reasonable suspicion that knock and announce under particular circumstances would be (1) dangerous or futile, or (2) would inhibit effective investigation of crime.
• Circumstances presenting threat of physical violence;
• Hot pursuit of escaped prisoner;
• Reason to believe evidence would likely be destroyed if advance notice given; or
• Court issued “no knock” warrant based on exigent circumstances.

Question 25

Warrant and Inventory Exception

Answer 25

Permits search of defendant’s possessions during incarceration or in vehicle impounded after lawful arrest.

Search must be:
- reasonable
and
- conducted pursuant to established police procedures.

Question 26

Warrant and Arrest Exception

Answer 26

Permits search of suspect’s person and area within his immediate control at time of arrest.

If arrest occurs in home, may also search closets and spaces immediately adjoining area from which person may launch an attack.

Question 27

Double Jeopardy does not bar prosecutions from what/who?

Answer 27

Separate sovereigns.

Federal courts can prosecute despite state crime previously prosecuted (where elements are identical).

Two states can prosecute relevant state crimes.

But political subdivision of same state cannot prosecute for same state crime.

Question 28

What is a custodial interrogation?

Answer 28

1. Custodial: substantial seizure and reasonably believes not free to leave; arrest or restraint on freedom of movement of degree associated with formal arrest.
2. Interrogation: police know/should their conduct is likely to elicit incriminating response