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Criminal Law & Procedure Flashcards

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1
Q

What is homicide?

A

The unlawful killing of another with malice aforethought.

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2
Q

What satisfies the malice element?

A

Intent EITHER to kill or to cause serious injury.

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3
Q

What other things can satisfy the malice element?

A

Felony murder OR depraved heart murder.

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4
Q

What is depraved heart murder?

A

The actor disregards an unreasonably high risk of harm to human life.

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5
Q

Is it possible to be convicted of murder WITHOUT intending to kill

A

YES.

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6
Q

REMEMBER :If a defendant satisfies the test for intentional murder, always look to see if theres sufficient provocation by the victim to knock the conviction down to voluntary manslaughter.

A

.

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7
Q

REMEMBER: provocation is both subjective and objective. What does that mean?

A

The provocation must be enough to anger this defendant AND it should be of a type that would provoke a reasonable person to kill.

ALSO

THIS defendant must not have cooled off when the killing takes place AND a reasonable person would not have cooled off in these circumstances.

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8
Q

What two types of involuntary manslaughter are there?

A

1) Criminal negligence; AND

2) Misdemeanor manslaughter.

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9
Q

Define criminal negligence.

A

the defendant ignores a risk of harm to human life, and that risk is LESS than the risk represented by depraved heart murder.

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10
Q

Define misdemeanor manslaughter.

A

the misdemeanor equivalent of felony murder.

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11
Q

Example of difference between depraved heart murder and criminal negligence manslaughter?

A

Two men set out in seperate cars. One drives through town and shoots a gun into the window of a house where a crowded party is being held. He doesn’t intend to kill anyone but he does. The other drives out to the country and fires a gun into the window of an abandoned hunting cabin. He also doesn’t intend to kill, but he does. The man who drove through town commits depraved heart because of EXTREME negligence. The other criminal negligence.

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12
Q

Define larceny?

A

Larceny is a trespassory taking and carrying away of the personal property of another with the intent to steal it.

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13
Q

Define robbery?

A

Larceny from a person that is accomplished by force or fear.

Force or fear means the robber’s threat of immediate bodily injury or death (pointing a gun, loaded or unloaded). Fainting w/o threat does not count.

** One may commit robbery by rendering his victim helpless by drugs or alcohol **

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14
Q

Define burglary?

A

The breaking and entering of the dwelling house of another, at night, with the intent to commit a felony therein.

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15
Q

HINT: in larceny, the trespassory taking must be done with the INTENT TO STEAL.

A

If the actor intends only to borrow anthers property, there’s NO INTENT TO STEAL and thus no larceny.

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16
Q

HINT: In larceny, if the intent to steal exists when he takes the goods but changes his mind later and returns them, it’s still larceny because the INTENT existed when the crime was committed.

A

.

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17
Q

HINT: Burglary requires the intent to commit a felony when the breaking and entering occurs.

A

.

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18
Q

REMEMBER: even an unreasonable belief can negate intent.

A

.

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19
Q

What are the types of warrantless searches?

A

1) search incident to arrest;
2) Inventory searches;
3) Exigent Circumstances
4) Plain View Doctrine
5) Automobile searches
6) Consent searches
7) Stop and frisk
8) Regulatory Inspections.

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20
Q

REMEMBER: the 4th amendment applies only to searches and siezures done by the POLICE or people working under the direction of the police.

A

.

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21
Q

REMEMBER: Miranda warnings are required ONLY when the police intend to conduct a CUSTODIAL interrogation.

A

.

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22
Q

Define “custodial interrogation?”

A

The suspect is not free to leave. Thus, if the police arrest someone and have no intent to question him - no Miranda. (also, if the suspect voluntarily confesses - no Miranda).

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23
Q

REMEMBER: Causation is ALWAYS required for criminal liability.

A

If the defendant’s conduct did not cause the victim’s injury, there’s NO criminal liability.

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24
Q

Steps to analyze “best defense” questions.

A

1) Ask, does this answer choice apply to the facts.
2) Ask, is the answer choice a correct statement of the law?
3) Ask, is the argument sufficient to acquit the defendant?

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25
Q

REMEMBER: In procedure questions involving a search, categorize the type of search FIRST, because what’s valid in one set of circumstances will differ from what’s valid in another.

A

.

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26
Q

REMEMBER: in procedure questions, watch for the “hidden” issue of standing.

A

Keep in mind that a person can object to a search ONLY If he has a legitimate expectation of privacy as to the place searched.

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27
Q

HINT: in questions that state the jury believes a piece of testimony, treat that testimony as FACT.

A

.

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28
Q

What are the three types of crimes?

A

Specific Intent - requires an actual subjective intent to cause a specific result.

General Intent - requires only an intent to do the prescribed act.

Strict Liability - requires no mens rea (regulatory offenses, regulation of food, drugs, firearms and crimes of morality).

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29
Q

What is Mistake of Fact?

A

A defense where it negates the mens rea - must be HONEST!

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30
Q

How does mistake of fact apply to the three types of crimes?

A

Specific Intent - any mistake, reasonable or unreasonable.

General Intent - only REASONABLE mistake.

Strict Liability - NO defense.

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31
Q

What are the elements of a crime?

A 
Actus Reus
Mens Rea
Concurrence
Causation
Defenses
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32
Q

When is deadly force allowed?

A

1) To meet deadly force; OR

2) To counter a threat of serious bodily harm.

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33
Q

When is voluntary intoxication a defense?

A

A defense to a specific intent crime where it negates the mens tea, but no defense to a general intent crime (i.e. arson).

34
Q

What is the M’Naughten test?

A

It’s the cognitive test.

1) The defendant does not know the nature and quality of his act; OR
2) he does not know what he was doing was wrong.

35
Q

What is the ALI/MPC insanity defense test?

A

It’s the cognitive/volitional test.

The defendant lacks the substantial capacity either to:

1) appreciate the criminality of his conduct; OR
2) conform his conduct to the requirements of the law.

36
Q

What is entrapment?

A

Available as a defense where defendant is UNPREDISPOSED to commit the crime prior to contact by the government.

37
Q

When does a duty arise that imposes criminal liability?

A

1) by statute;
2) by contract;
3) by creation of victim’s peril
4) by relationship (parent/child, husband/wife).

38
Q

What are the 4 forms of mens tea?

A

1) Intent to kill - specific intent;
2) Intent to cause serious bodily harm;
3) depraved heart; and
4) felony murder (BARRK).

39
Q

Define voluntary manslaughter

A

Intentional killing;

1) adequate provocation - objective;
2) mistaken justification.

40
Q

Define involuntary manslaughter.

A

Unintentional killing;

1) gross or criminal negligence - subjective
2) misdemeanor - manslaughter.

41
Q

What type of defense is voluntary intoxication?

A

Can reduce 1st degree murder to 2nd degree, but does NOT mitigate murder to voluntary manslaughter.

42
Q

What is solicitation?

A

1) Defenant entices, encourages, order or requests another to commit a crime. The crime is COMPLETE at this point.
2) It merges into the target offense.
3) Applies to felonies and breach of the peach misdemeanors at common law.
4) NO defense at common law.

REMEMBER: Solicitation merges into conspiracy. So if you solicit, conspire and complete, just conspiracy and crime.

43
Q

What are the elements of attempt?

A

1) Intent to commit a crime; and
2) a “substantial” step in furtherance that goes beyond mere preparation.

  • merges into complete offense.
44
Q

What are the defenses to attempt?

A

Legal impossibility is. Factual impossibility IS NOT!

Factual impossibility is no defense to attempt where the defendant intends a criminal act but cannot accomplish it because of facts unknown to him at the time of the act.

45
Q

What are the elements of conspiracy?

A

1) agreement between 2 or more persons - plurality; and
2) Intent to achieve a criminal objective.

  • Conspiracy does NOT merge.
46
Q

What are the defenses to attempt?

A

1) Factual Impossibility - NO DEFENSE. What defendant intends is a crime, but because of facts unknown to him at the time, he is unable to accomplish his goal.

Legal Impossibility - IS a defense. Even if defendant did all those things he intended to do, he still could not violate the statute.

47
Q

What is the unilateral theory of conspiracy?

A

Agreement between “2 or more” persons is not required. Only agreement by a single actor agreeing with another is needed.

48
Q

What is accomplice liability?

A

An accomplice:

1) gives aid or encouragement
2) with intent to achieve a criminal objective.

Scope: all crimes that are “reasonably foreseeable.”

49
Q

Define battery.

A

Harmful or offensive bodily contact with another.

  • This is a general intent crime.
50
Q

Define assault.

A

1) attempted battery; and
2) the doing of an act which that places another person in reasonable apprehension of receiving a battery.

1) Attempted battery - specific intent.
2) Intent to frighten - general intent.

51
Q

What is accessory after the fact?

A

Knows of a completed crime; AND

Gives aid to hinder apprehension or conviction.

52
Q

Define robbery.

A

Larceny +

1) from the person or his presence.
2) by force or threats (intimidation).

53
Q

Define embezzlement.

A

Fraudulent conversion of the personal property of another in lawful possession.

54
Q

Define burglary.

A

Breaking and entering the dwelling house of another at nighttime with the intent to commit a larceny or felony therein.

55
Q

Define false pretenses.

A

False representation of a past or present material fact which causes the victim to PASS TITLE to the wrongdoer.

56
Q

What are the two basis for appeal?

A

1) Right to jury trial - arises where imprisonment for more than 6 months is possible.
2) Right to Counsel - arises for felony trials and misdemeanors where imprisonment is actually imposed, or, in the case of an indigent, where a suspended jail sentence is imposed.

57
Q

What is standing?

A

Defendant must have a possessory interest in the premises searched or in the items siezed.

58
Q

What is an inventory search?

A

A routine search to protect the arrestee’s personal items and to safeguard the police from any claims of theft.

59
Q

What is a reasonable expectation of privacy?

A

1) Where there is a REP, then police intrusion constitutes a search.
2) If there is no REP, then police intrusion is not a search.

60
Q

What is the “open fields” doctrine?

A

1) applies to the area beyond the “curtilage”
2) No REP
3) No 4th Amendment protection
4) A view of “open fields” is NOT a search.

61
Q

What is a “consent” search?

A

Consent extends to all areas where a person with an APPARENT EQUAL RIGHT TO USE OR OCCUPY the property would have JOIN ACCESS OR CONTROL.

62
Q

When is a dog sniff legal?

A

1) a dog sniff of the exterior of a lawfully stopped vehicle does NOT constitute a search.
2) A positive canine alert provides probably cause to search.

63
Q

What are the warrant exceptions?

A

1) stop and frisk
2) search incident to lawful arrest
3) plain view
4) automobile
5) consent
6) hot pursuit
7) exigent circumstances

64
Q

What is the “totality of the circumstances” test?

A

1) reliability of the informant; and
2) credibility of the information.

(Probable cause based on an informant’s tip)

65
Q

REMEMBER: both pre-arrest (Jenkins v. Anderson) and post-arrest silence may be used for impeachment where Miranda warnings have NOT been given.

A

Post-Miranda silence may NOT be used for impeachment (Doyle v. Ohio).

66
Q

What is the “totality of the circumstances” test under Miranda waiver?

A

1) competency of the defendant; and

2) nature of the police conduct.

67
Q

What are the 4 bases to attack admissibility of a statement/confession?

A

1) Voluntariness approach;
2) Miranda approach
3) Right to Counsel approach
4) “Fruits of the Poisonous Tree” doctrine.

68
Q

What is the Separate Sovereignties Doctrine?

A

1) Retrial by separate sovereignties does not violate double jeopardy (i.e. does not constitute the same offense)

** Caveat: the city and the state in which it sits are NOT separate sovereignties **

69
Q

What is Messiah

A

1) applies to post-indictment interrogation
2) a defendant has the right to counsel when the police seek to interrogate him.
3) interrogation by a police informant
4) interrogation results when the police (or its informant) seek to elicit incriminating statements from the defendant.

70
Q

What is the Arizona v. Hicks “plain view” exception/doctrine?

A

the “plain view” doctrine may not be used to extend a general exploratory search from one object to another. Full probably cause is needed to pick up an item to ascertain its serial number.

REMEMBER: when the purpose of the warrant have been carried out, the authority is to search is at an end.

71
Q

What is the rule regarding representation of multiple clients by one attorney?

A

Multiple representation in the sens taht the same counsel actively represented two defendants charged with the same crime does NOT violate the 6th Amendment UNLESS it gives rise to a conflict of interest.

72
Q

Do you have a right to proceed pro se?

A

A defedant who acts knowingly and intelligently in waiving his right to counsel has a right to proceed pro se, since he must be free to decide if counsel will be to his advantage in the case.

** The defendant must be found INCOMPETENT - not just INDIGENT ***

73
Q

REMEMBER: Most crimes require all 5 elements.

A

Don’t let yourself get confused with forseeability in torts.

74
Q

HINT: a conspirator does not have automatic standing to challenge the siezure of illegally obtained evidence from a co-conspirator.

A

.

75
Q

NOTE: with respect to the automobile exception, police must have PROBABLE CAUSE to suspect or reasonably beleive that the vehicle contains EVIDENCE OF A CRIME!!!! (or CONTRABAND)

A

This cannot just be that the occupants seem shifty.

76
Q

What are the Specific Intent Crimes?

A

BAM ACTS

Burglary
Assault
Murder
Attempt
Conspiracy
Theft
Solicitation
77
Q

What are the General Intent Crimes

A

BRIM

Battery
Rape
Involuntary Manslaughter
Murder (other than intent to kill)

78
Q

What is the redline limitation on felony murder?

A

A felon is not liable for the death, which the felon did not intend, of a co-felon participating in criminal activity.

** Redline is the prevailing view in a majority of jurisdictions **

79
Q

Note on Suicide:

A

Suicide is not murder under the statute since the defendant would be required to have knowingly or willfully caused the death of ANOTHER HUMAN BEING, not himself. By attempting suicide, the defendant did not knowingly or willfully cause the death of the victim.

80
Q

Define Larceny by Trick:

A

You obtain possession (NOT title) by taking.

i.e. having an attendant pump gasoline and driving off

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