Criminal Law & Procedure

Question 1

What are the elements of a crime?

Answer 1

Prosecution must prove all
elements of a crime beyond a reasonable doubt:
1) Voluntary Physical Act (actus reus);
2) Mental State (mens rea);
3) Causation (both actual and proximate cause);
AND
4) Concurrence (mental state and physical act
occur at the same time).

Priority: HIGH

Question 2

Omission

Answer 2

is generally is NOT criminal unless:
1) D had a legal duty to act;
2) D had knowledge of facts concerning the duty to
act; AND
3) It was reasonably possible for D to act.

Duty to Act = contractual duty, parent-child relationship,
duty taken on voluntarily, statute creates a duty, or when
D creates the danger.

Priority: Medium

Question 3

What does Causation require?

Answer 3

Requires both:
1) Actual Causation; AND
2) Proximate Cause.

Actual Causation → present when the result/injury
would not have occurred “but for” the D’s conduct.

Proximate Cause → injury must be foreseeable from
D’s act (it was a natural probable consequence).

Priority: HIGH

Question 4

What is a Superseding Intervening Cause?

Answer 4

It is a third-party’s act that breaks the chain of causation. This normally cuts off the defendant’s liability.

An act will ONLY break the chain if the act was:
1) Independent of the defendant’s wrongful conduct; AND
2) Not foreseeable (it’s so out-of-the-ordinary that it’s not fair to hold D liable for the crime

Priority: HIGH

Question 5

Mental States - the intent element of a crim (mens rea)

Under the Common Law, what mental state categories were used?

Answer 5

Common Law (CL):
Specific Intent – intent or desire to engage in the
conduct or cause a certain result.
General Intent – awareness of acting in a certain way.
Malice – reckless disregard of a known risk that harm
may occur.
Strict Liability – no mental state required; only the act is
required.

Priority: HIGH

Question 6

Mental States - the intent element of a crim (mens rea)

Under the Model Penal Code, what mental state categories were used?

Answer 6

Purposefully – conscious object to engage in conduct
or cause a certain result.
Knowingly – aware that conduct is of a particular nature
or will cause a certain result.
Recklessly – consciously disregards a substantial and
unjustifiable risk + act is a gross deviation from how a
reasonable person would act.
− OR when a person creates such a risk, but is
unaware of it solely by reason of voluntary
intoxication.
Criminal Negligence – should have been aware of a
substantial and unjustifiable risk + that failure is a gross
deviation from the standard of care.

Question 7

Willful Blindness Standard (majority of states)

Answer 7

A person is deemed to act knowingly when he is:
a) Aware that certain facts are highly probable; OR
b) Intentionally ignorant to certain facts.

*Knowledge may be proved by circumstantial evidence.

Question 8

Common Law & Second Agree Murder Definition

Answer 8

Murder is the
(1) unlawful killing, (2) of a person, (3) with malice
aforethought.

Malice Aforethought =
(a) intent to kill;
(b) intent to inflict great bodily harm;
(c) reckless disregard of an extreme risk to human life (depraved-heart
murder); OR
(d) intent to commit an inherently dangerous felony (felony murder rule).

Question 9

Malice Aforethought

Answer 9

Malice Aforethought =
(a) intent to kill;
(b) intent to inflict great bodily harm;
(c) reckless disregard of an extreme risk to human life (depraved-heart
murder); OR
(d) intent to commit an inherently dangerous felony (felony murder rule).

Question 10

1st Degree Murder

Answer 10

The killing was willful, deliberate, AND premeditated.

Question 11

MPC Murder

Answer 11

Killing of a person committed:
(a) purposefully or knowingly; OR
(b) recklessly under circumstances manifesting an extreme indifference to
the value of human life.
− Felony Murder Rule → recklessness is
presumed for burglary, arson, robbery, rape, & kidnapping. “BARRK”

Question 12

Murder

Second Degree Murder
vs.
First Degree Murder

Answer 12

Second Degree Murder: The unlawful killing of a person with malice aforethought.

First Degree Murder: Occurs when the killing was wilful, deliberate AND premeditated.

Priority: HIGH

Question 13

Murder

Felony Murder Rule

Answer 13

A person is guilty of murder if a person is killed during their:
a) Commission of (or attempt to commit) a dangerous felony; OR
b) Felony escape.

*Dangerous felony = burglary, arson, robbery, rape, & kidnapping. “BARRK”

Priority: HIGH

Question 14

What is Voluntary Manslaughter?

Answer 14

An intentional killing of a person with adequate provocation.

Adequate provocation is established if:
1) The defendant was provoked (sudden and intense passion causing a loss of control);
2) A reasonable person would have been provoked;
3) There was not enough time to cool off; AND
4) The defendant in fact DID NOT cool off.

Priority: HIGH

Question 15

What is Involuntary Manslaughter?

Answer 15

Unintentional killing of a person committed:
a) Recklessly;
b) Under the Misdemeanor Murder Rule;
c) During a non-dangerous felony; OR
d) with criminal negligence (in some states)

Priority: HIGH

Question 16

What is Manslaughter under the Model Penal Code (MPC)?

Answer 16

The killing of a person:
a) Committed recklessly; OR
b) Committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.

*The MPC doesn’t distinguish between voluntary/involuntary manslaughter.

Priority: HIGH

Question 17

What are the elements of Larceny?

Answer 17

The:
1) Trespassory taking,
2) And carrying away,
3) Of the personal property of another,
4) With the intent to permanently deprive the owner of the property (intent must exist at the time of taking)

*Larceny by Trick = when one obtains possession of another’s property by trick or deception.

Priority: HIGH

Question 18

Larceny by Trick

Answer 18

obtain possession (not title) of the personal property of another by trick or deception.

Question 19

What are the elements of False Pretenses?

Answer 19

It occurs when one:

1) Obtains title,
2) To personal property of another,
3) Through an intentional false statement of material fact,
4) With the intent to defraud.

*Opinion or commercial puffery is NOT false pretenses.

Priority: HIGH

Question 20

What are the elements of Embezzlement?

Answer 20

1) The fraudulent or wrongful,
2) Conversion,
3) Of personal property of another,
4) By a person with lawful possession of the property.
-intent to permanently deprive the lawful owner of the property is required.

Priority: HIGH

Question 21

What are the elements for the crime of Receiving Stolen Property?

Answer 21

When a person:
1) Receives possession of stolen property,
2) Who knows the property is stolen at the time of receiving it,
3) With the intent to permanently deprive the owner of the property.

Priority: HIGH

Question 22

What are the elements of Robbery?

Answer 22

1) The trespassory taking and carrying away,
2) Of the personal property of another,
3) In their presence;
4) By the use of force or threat of immediate physical harm,
4) With the intent to permanently deprive the owner of the property.

*Armed robbery requires the elements above, PLUS the use of a dangerous weapon.

Priority: Medium

Question 23

What are the elements of Burglary?

Answer 23

Burglary is:
1) The breaking and entering,
2) Of a dwelling,
3) Of another,
4) At night,
5) With the INTENT to commit a felony inside.

*Most jurisdictions have extended burglary to any structure at any time.

Priority: HIGH

Question 24

Under the Common Law, what are the elements of Rape?

Answer 24

1) The unlawful sexual intercourse,
2) Of a woman by a man (not her husband),
3) Without her consent.

Modern definition–> includes marital rape (in most states) and makes gender irrelevant.

Priority: Medium

Question 25

Rape

When is there a Lack of Effective Consent?

Answer 25

When:
a) Actual force is used;
b) Threats of immediate great bodily harm are used;
c) The victim is incapable of consenting; OR
d) The defendant fraudulently caused the victim to believe that the act is not intercourse.

Priority: Medium

Question 26

Rape under the MPC

Answer 26

a male who has sex with a female (not his wife)
is guilty of rape if:
(a) he compels her by force/threat of
imminent death, serious bodily injury, extreme pain, or
kidnapping;
(b) he secretly drugs her;
(c) female is unconscious; OR
(d) female is less than 10 years old.

− Deviate Sexual Intercourse → has same
elements as above, but is gender neutral.

Priority: Medium

Question 27

What are the elements of Statutory Rape?

Answer 27

1) The unlawful sexual intercourse,
2) With a person,
3) Under the age of consent (as defined by statute).

*This is a Strict Liability crime.

Priority: Medium

Question 28

Battery

Answer 28

is the:
(1) unlawful application of force;
(2) directly or indirectly upon another person or their close
personal belongings;
(3) resulting in injury or offensive contact.

− Battery is a general intent crime.
− Intent to cause injury is NOT required.

Question 29

Assault

Answer 29

either:
(a) an attempted battery, OR
(b) the intentional creation of a reasonable apprehension of
imminent bodily harm to a person.

Question 30

What are the elements of Kidnapping (under the MPC and Common Law)?

Answer 30

Kidnapping is:

Common Law: Confining, restraining, or moving a person, without authority of law.

MPC: An abduction of another person:
a) for ransom;
b) to facilitate a felony;
c) to inflict bodily injury or terrorize; OR
d) to interfere with the performance of a government/political function.

Priority: Medium

Question 31

What are the elements of False Imprisonment under the CL and MPC?

Answer 31

The:
1) Unlawful,
2) Confinement of a person,
3) Against their will,
4) With knowledge that the restriction is unlawful.

MPC: Knowingly restraining another person unlawfully so as to substantially interfere with the person’s liberty.

Priority: Medium

Question 32

What are the elements of Arson?

Answer 32

The:
1) Malicious,
2) Burning,
3) Of a dwelling,
4) Of another.

*Under the Common Law, a person could not be convicted of arson if it was their own home.

Majority of states –> includes damage (i) caused by explsoives, and (ii) to other types of buildings and vehicles.

Priority: Medium

Question 33

What are the elements of Criminal Possession?

Answer 33

It involves the unlawful possession of an item according to statute (ie. weapons, drugs)

To be found guilty, usually need both:
1) Knowledge of the possession; AND
2) Knowledge of what the item is.

Priority: Medium

Question 34

When is a person guilty of Attempt?

Answer 34

If the person:
1) Had the specific intent to commit a crime; AND
2) Took an overt act sufficiently beyond mere preparation.

*Most states & the MPC require the overt act be a substantial step.
In a minority of states, the overt act must be proximate or dangerously proximate to the crime.

*attempt merges with the underlying crime

Priority: Medium

Question 35

Abandonment/ Withdrawal Defense for Attempt

Answer 35

Most States → NOT a defense once D has taken a
substantial step toward the crime (conduct beyond mere
preparation).

Minority States & MPC → Abandonment before the
completion of the crime is an affirmative defense if:
1) D voluntary renounces his criminal purpose;
AND
2) Completely abandons the effort to commit the
crime or otherwise prevents its commission.

Question 36

What are the elements of Conspiracy?

Answer 36

is a specific intent crime, and requires:
1) An express/implied agreement between two or
more persons;
2) Intent to enter into the agreement;
3) Intent to pursue an unlawful objective (common
law = all parties; MPC & modern trend = only
require one party’s intent); AND
4) Commission of an overt act in furtherance of
the unlawful objective (any act taken by a coconspirator
is sufficient).

A conspirator is liable for the conspiracy, PLUS all
foreseeable crimes committed by co-conspirators in
furtherance of the unlawful objective.
− Withdrawal is NOT a defense for the
conspiracy, but it is a defense for crimes
committed by co-conspirators after the
withdrawal.

Priority: Medium

Question 37

What are the elements of Solicitation?

Answer 37

1) D requests another person to commit a crime (or join in the commission of a crime);
2) With the specific intent that the crime be committed; AND
3) The other person receives the request.

*Solicitation merges with the substantive crime.

Renunciation – is an affirmative defense if Defendant:
1) voluntarily and completely renounces; AND
2) prevents the commission of the crime.

Priority: Medium

Question 38

Who is an Accomplice?

What are they liable for?

Answer 38

An accomplice is a person who:
1) Aids, abets, or facilitates the commission of a crime; AND
2) Has dual intent (intent to assist the primary party and the intent that the crime is committed).

An accomplice is liable for ALL crimes he committed, AND all foreseeable crimes committed by the primary party.

-Merely being present or knowing a crime will
result DOES NOT create accomplice liability.
− Cannot be convicted if D is a member of a class
protected by the criminal law.
− Minority of states DO NOT allow accomplice
liability for involuntary manslaughter.

Priority: Medium

Question 39

Accomplice Liability Withdrawal Defense

Answer 39

Withdrawal – is a defense if D withdraws before the
crime becomes unstoppable, and requires:
1) repudiating the encouragement given; AND
2) neutralizing any assistance.

Question 40

When does the defense of Duress excuse a defendant’s conduct?

Answer 40

Is an affirmative defense, and excuses D’s
conduct if it was the result of:
1) a threat of imminent death or serious bodily
injury,
2) to the D or another, AND
3) D reasonably believed he was unable to avoid
the harm by non-criminal conduct.

*Most states → duress defense is NOT available for
intentional killings.

Priority: Medium

Question 41

What are the four Insanity tests?

Answer 41

D must have a mental disease or defect, PLUS:
1) The M’Naghten test.
2) The Model Penal Code test.
3) The Irresistible Impulse test.
4) The Durham test.

*Most states use the M’Naghten or MPC test.

Priority: HIGH

Question 42

Insanity

What is the M’Naghten Test?

Answer 42

1) A mental disease or defect; AND
2) D is
(a) Unable to know the wrongfulness of the conduct; OR
b) Unable to understand the nature and quality of the acts.

Priority: HIGH

Question 43

Insanity

What is the Model Penal Code Test?

Answer 43

As a result of a mental disease or defect, the defendant was:
a) Unable to appreciate the criminality of the conduct; OR
b) Unable to conform his actions to the law.

*think of it as a combo of the M’Naghten Test and the Irresistible Impulse Test

Priority: HIGH

Question 44

Insanity

What is the Irresistible Impulse Test?

Answer 44

D’s mental illness made him
a) Unable to control his actions; OR
b) Unable to conform his actions to the law.

Priority: HIGH

Question 45

Insanity

What is the Durham Test?

Answer 45

D’s unlawful conduct was the product of mental illness.

Priority: HIGH

Question 46

Self-Defense

Non-Deadly Force

Answer 46

self defense is a complete defense to a crime.

Non-Deadly Force is justified when:
(1) D reasonably believes,
(2) that he’s in imminent danger of being
harmed, AND
(3) the force used is proportional to the
harm threatened.

Priority: Medium

Question 47

Self-Defense

Deadly Force

Answer 47

self defense is a complete defense to a crime.

Deadly Force is justified when:
(1) D kills based on a reasonable belief,
(2) that he was in imminent danger of
being killed (or suffering great bodily injury), AND
(3) the use of deadly force was necessary.

− Minority of States: D has a duty to retreat
before deadly force may be used.
-BUT, D has no duty to retreat when: (a)
no opportunity to retreat; (b) he could
not retreat safely; or (c) if attacked in his
own home.

− An aggressor may only use force in self defense
if: (a) he withdraws and communicates
it; OR (b) the other person escalates the fight
with deadly force and withdrawal is not possible.

Question 48

Imperfect Self-Defense?

Answer 48

Mitigates murder to voluntary
manslaughter when:
(1) D kills based on a good faith belief of self-defense,
(2) but such belief was
unreasonable.

Priority: Medium

Question 49

Voluntary Intoxication
vs.
Involuntary Intoxication

(as a defense)

Answer 49

Voluntary Intoxication = Ingesting an intoxicating
substance by D’s own free will.
− ONLY a defense to specific intent crimes.

Involuntary Intoxication = Ingesting an intoxicating
substance without knowledge or by force.
− Is a defense to ALL crimes → use same tests for
an insanity defense.

Priority: Medium

Question 50

Mistake of Fact or Law

Answer 50

Mistake of Fact is a defense if it negates the mental
state required for the crime.

Mistake of Law is generally NOT a defense.

Question 51

What is required to challenge a Search and Seizure?

Answer 51

Govt. Action – 4th Amend. grants a person protection
from unlawful government searches and seizures.
− Acts by private individuals are NOT protected.

Standing – Is required to challenge a search. Person
MUST have a reasonable expectation of privacy
regarding the place or item searched.
− Reasonable Expectation of Privacy = that which
they own or possess (applies to overnight guest
spaces).

Supreme Court has held NO privacy rights for:
(1) paint scrapings taken from a car; (2) bank account
records; (3) anything visible from public airspace; (4)
garbage left on the curb; (5) the sound of one’s voice; (6)
odors; (7) handwriting; and (8) anything that can be seen
in or across areas outside one’s home.

Priority: Medium

Question 52

Arrests

When does Probable Cause arise?

Answer 52

To be proper, a police officer MUST have
probable cause → (1) trustworthy facts or knowledge,
(2) sufficient to warrant a reasonable person to believe,
(3) that the person committed a crime.

− Officer DOES NOT need firsthand knowledge (it
may be based on informant’s information).
− An arrest in/at someone’s home requires a
warrant (unless exigent circumstances).

*If in a public space, probable cause is all that’s required. If in someone’s home, a warrant is required to make an arrest ( unless exigent circumstances)

Priority: Medium

Question 53

When may a police officer Request for Information

Answer 53

allowed anytime except on “whim or caprice”

Question 54

When may a police officer Stop and Inquire (Terry Stop) ?

Answer 54

If the police officer:
1) Has reasonable articulable suspicion,
2) That criminal activity is afoot.

*Allows only a brief detention for questions, after which the suspect must be released.

Priority: Medium

Question 55

When may a police officer Stop and Frisk?

Answer 55

If the police officer:
1) Has reasonable articulable suspicion,
2) That criminal activity is afoot, AND
3) That the person has a weapon.

*Under the Plain Feel Doctrine, police may only seize items reasonably believed to be contraband or a weapon.

Priority: Medium

Question 56

Reasonable Suspicion

Answer 56

quantum of knowledge sufficient to induce an ordinarily prudent and cautious
person to believe that criminal activity is at hand.

Question 57

Seizure of a person

Answer 57

when a reasonable person would have believed that he was not free to leave

Question 58

What is required for a valid Search Warrant?

Answer 58

a warrant is required for all searches and seizures unless an exception applies.

A valid search warrant requires:
1) Probable cause – reliable info that evidence of
illegality will be found;
2) It must state with particularity the place and
items to be searched/seized; AND
3) Be issued by a neutral and detached
magistrate.

*Evidence obtained without a valid warrant is excluded
UNLESS it falls under an exception.

Priority: HIGH

Question 59

What are the exceptions that permit a Warrantless search and seizure?

Answer 59

IS SPACES

1) Inventory Search
2) Special need
3) Search incident to a lawful arrest.
4) Plain View Doctrine.
5) Automobile exception.
6) Consent
7) Exigent Circumstances
8) Stop and Frisk.

Priority: HIGH

Question 60

Inventory Search (Warrant Exception)

Answer 60

allows a warrantless search when a
person is incarcerated OR for an impounded vehicle.
− Inventory search must be: (1) reasonable; AND
(2) conducted pursuant to established police
agency procedures.

Question 61

Special Need (Warrant Exception)

Answer 61

applies in very limited circumstances

Question 62

Search incident to a lawful arrest (warrant exception)

Answer 62

police may search a suspect’s person + area within suspect’s immediate
control (a.k.a “wingspan”).
− If arrested in a home → may also search other
immediately adjoining spaces from where an
attack may be launched.

Question 63

Plain View Doctrine (warrant exception)

Answer 63

police may seize items if:
1) observed in plain view (with any of the 5
senses),
2) from a place lawfully permitted to be, AND
3) probable cause exists to believe the items are
evidence of a crime or contraband.

Question 64

Automobile Exception (warrant exception)

Answer 64

allows a warrantless search if
probable cause exists that contraband/evidence of a
crime will be found in the vehicle.
− Police can search entire vehicle, PLUS
packages, luggage, containers that may
reasonably contain the items for which there is
probable cause.
− In order to search after a traffic stop → police
need probable cause prior to the search.

Question 65

Consent (warrant exception)

Answer 65

must be given freely, voluntarily, and
intelligently.
− A third-person with authority MAY consent.
− If 2 or more people share authority → any one of
them may consent, but police cannot search
private areas (that only the non-consenting
person has authority to give [i.e. private
bedroom]).

Question 66

Exigent Circumstances (warrant exception)

Answer 66

allows a warrantless search
if:
a) evidence is evanescent ( evidence likely to disappear before warrant can be obtained);
b) it’s necessary to prevent the imminent
destruction of evidence;
c) the police are in hot pursuit of a fleeing felon and
evidence is in plain view; OR
d) the emergency aid exception applies( search justified by threats to health or saftey).

Question 67

Stop and Frisk (warrant exception)

Answer 67

police must have (1) a reasonable
articulable suspicion, (2) that criminal activity is afoot,
and (3) that the person has a weapon.
− Plain Feel Doctrine → during the frisk, police
may only seize items reasonably believed to be
contraband or a weapon.

Question 68

Under what amendments can a confession be excluded at trial?

Answer 68

A confession may be excluded at trial under the 5th, 6th,
and/or 14th Amendments of the U.S. Constitution.

Question 69

Under the 14th Amendment Due Process Clause,
when will a Confession be excluded at trial?

Answer 69

It’s a violation of D’s rights if a confession is the product of police
coercion that overbears the suspect’s free will.
− Police MAY use coercive conduct (i.e. lying), as
long as it doesn’t overcome D’s free will.

Priority: Medium

Question 70

What does the 5th Amendment protect?

Answer 70

protects the right to not incriminate oneself.

Question 71

When must Miranda warnings be given by the police?

Answer 71

Miranda warnings must be given prior to custodial interrogation by police.

statement’s made in violation of a suspect’s miranda rights are subject to the exclusionary rule.

Custodial Interrogation:
− Custody = the person reasonably believes they
are not free to leave.
− Interrogation = police knew (or should have
known) they were likely to elicit an incriminating
response.

Statements / Acts Protected – only protects
statements and acts that are communicative or
testimonial in nature.
− Crying is NOT a testimonial communication.
− Miranda rights DO NOT apply to spontaneous
statements.

Public Safety Exception – a limited interrogation
without Miranda warnings IS ALLOWED when police ask
questions reasonably prompted by a public safety
concern or safety of the officer (i.e. to secure a
weapon).

Question 72

What are the Miranda Warnings?

Answer 72

1) They have the right to remain silent;
2) Anything they say can be used against them in court;
3) They have the right to talk to an attorney and have one present when they are questioned; AND
4) If they cannot afford one, an attorney will be provided to them.

*These rights only attach when there is a custodial interrogation of a suspect.

Priority: HIGH

Question 73

Invoking Miranda Rights

Answer 73

it must be clear and
unambiguous.
− Once invoked, police must stop ANY
questioning. Additionally, D’s silence CANNOT
be commented on at trial.

Police may reinitiate questioning if:
1) Suspect is re-advised of his Miranda rights;
2) Has provided a knowing and intelligent waiver;
AND
3) Either
(a) counsel is present;
(b) suspect
initiates the communication; or
(c) 14-days have
passed since the suspect was released from
custody.

Question 74

Waiver of Miranda Rights

Answer 74

Waiver of Rights – a valid waiver must be made
knowingly, intelligently, AND voluntarily.
− D must understand the nature of the right being
waived and the consequence for waiving it.
− Police failure to provide outside info DOES NOT
invalidate a waiver (unless the info was essential
to D’s ability to waive rights).

Question 75

When may a custodial interrogation be reinitiated after the right to counsel has been invoked?

Answer 75

If:
1) The suspect has been re-advised of his Miranda rights;
2) Has provided a knowing and voluntary waiver; AND
3) Either:
a. Counsel is present,
b. The suspect initiates the communication; OR
c. At least 14 days have passed since the suspect was released from custody.

Priority: HIGH

Question 76

When does the accused have the Right to Counsel under the 6th Amendment?

When does it attach?

Answer 76

The accused has the right to counsel in ALL criminal prosecutions except in State misdemeanor prosecutions that do not carry a substantial risk of jail time.

Attaches → once formal adversarial judicial
proceedings are commenced (formal charge,
preliminary hearing, indictment, arraignment).
− Once rights attach, a suspect CANNOT be
questioned without a lawyer, and anything said
is inadmissible (unless a valid waiver occurs).
− This right is offense-specific.

Waiver of Rights – same as waiver under 5th Amend. attaches once formal adversarial judicial proceedings have commenced.

Priority: Medium

Question 77

Right to Counsel (5th Amendment)

Answer 77

Attaches when a suspect is in a custodial
interrogation (Miranda rights).
− Suspect has the right to consult with an attorney
and have one present during questioning.

Question 78

Effective Assistance of Counsel (6th Amendment)

Answer 78

D has the right to effective assistance of counsel.
− Includes the effective aid in preparation and trial
of a criminal case.

Ineffective Assistance of Counsel – D must show:
1) Counsel’s performance was deficient; AND
2) But for the deficiency, the result would be
different.

*If shown, the verdict MUST be reversed, and D is
entitled to a new trial.

Priority: Medium

Question 79

When is a police lineup in violation of the Due Process Clause (14th Amendment)

Answer 79

violated when a line-up is (1) unnecessarily suggestive, (2) resulting in a
substantial likelihood of misidentification.
− If violated → identification is inadmissible at trial.
− Absent improper police influence, an out-of-court
identification is ADMISSIBLE.

Question 80

Under the Independent Source Rule, when is an in-court identification admissible at trial?

Answer 80

Independent Source Rule → an in-court identification is
admissible at trial (even if a line-up is tainted) when it’s:
1) based on a witness’s previous knowledge;
2) trustworthy; AND
3) based on a previous transaction (i.e. the crime).

Priority: Medium

Question 81

when does the defendant have a right to counsel for a police lineup?

Answer 81

a person has the right to counsel at a post-charge line-up.
− No right to counsel under 6th Amend. at a precharge
line-up or photo-identification.

Question 82

Does the defendant’s Miranda Rights under the 5th Amendment protect for pretrial identifications?

Answer 82

pre-trial identifications (line-ups, photo identifications), blood tests, fingerprints,
and voice identifications are NOT protected by the 5th
Amendment.
− A suspect in custody CANNOT refuse to
participate in a line-up.

Question 83

Exclusionary Rule

Answer 83

Evidence obtained in violation of
D’s 4th, 5th, or 6th Amendment rights is inadmissible at
trial.
− All derivative evidence is also inadmissible
under the fruit of poisonous tree doctrine.

Exceptions – Exclusionary Rule DOES NOT apply if:
a) Police had an independent source for the
secondary evidence;
b) Discovery of evidence was inevitable
regardless of the illegality;
c) Through the attenuation doctrine → when D’s
free will is restored through passage of time or
intervening events; OR
d) Police relied in good faith on a defective
warrant.

Question 84

What are the limitations on the Exclusionary Rule as applied to Miranda Violations?

Answer 84

In addition to the exclusionary rule exceptions, the following limitations apply to Miranda violations:

Limitation #1 → Not required to suppress the
physical evidence found because of D’s
statements (as long as statement was
voluntary).

Limitation #2 → Subsequent statements made
after Miranda warnings are admissible
UNLESS a previous statement was obtained
through the use of inherently coercive police
tactics offensive to Due Process.

Limitation #3 → Statements in violation of
Miranda may be used to impeach D on cross-examination.

Priority: HIGH

Question 85

6th Amendment right to a jury trial

Answer 85

6th Amend. guarantees a criminal defendant the right to a jury trial for offenses
where imprisonment is greater than 6 months.
− Minimum of 6 jurors is required, and a verdict
MUST be unanimous.
− Any fact (other than a prior conviction) that
increases the maximum penalty for a crime
MUST be submitted to a jury and proven beyond
a reasonable doubt.

Question 86

When is a defendant competent to stand trial?

Answer 86

D is competent to stand trial if he has:
1) a sufficient present ability to consult with his
lawyer (able to assist in preparing a defense); AND
2) a rational and factual understanding of
proceedings.

*D cannot be tried if deemed incompetent (but
competence can be reassessed at a later date).

Priority: Medium

Question 87

Double Jeopardy

Answer 87

Prevents a D from being
prosecuted twice for the “same offense”.
− Under Blockburger Test → two crimes are NOT
the “same offense” if each crime requires
proof of a fact which the other does not.
− A final judgment on a lesser offense bars
prosecution of a greater offense on the same
facts UNLESS the greater offense:
(a) did not exist at the time of trial; OR
(b) was not discovered despite due diligence.

Question 88

when does Jeopardy attach? and what are the exceptions

Answer 88

when a jury is impaneled and
sworn.
− Exceptions: (1) hung jury, (2) manifest necessity exists to end the trial, OR (3) trial is terminated at D’s request and it’s not an acquittal on the
merits.

Question 89

Burden of Proof

Answer 89

Prosecution MUST prove every
element of a crime beyond a reasonable doubt.
− Burden of proof CANNOT be shifted to D.
− Making D prove affirmative defenses is allowed.

Question 90

Presumptions for Jury Instructions

Answer 90

2 types:
− Rebuttable Presumption (one that may be
disputed or overcome by additional evidence) →
violates the Due Process Clause if it shifts the
burden of proof to D.
− Irrebuttable Presumption (one that cannot be
disputed or overcome) → is a per se violation of
the Due Process clause.

Question 91

Sufficiency of Evidence

Answer 91

a court MUST enter a Judgment of Acquittal if the evidence is insufficient to
sustain a conviction (when a reasonable jury would not find that each element was proven beyond a reasonable doubt).
− D may move for a Judgment of Acquittal either:
(a) at the close of its case-in-chief; OR (b) after
the close of all evidence.

Question 92

Harmless Error Rule

Answer 92

even if evidence is improperly
admitted at trial, a guilty verdict will stand if the
Prosecution can prove that the error was harmless
(that D would have been convicted anyway).