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Bar Exam > Criminal Law & Procedure - General > Flashcards

Criminal Law & Procedure - General Flashcards

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1
Q

How does a state have jurisdiction over a crime?

A

(1) The conduct occurred there, or

(2) The result occurred there

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2
Q

When is there a merger in crimes, meaning the ∆ can’t be charged with both crimes?

A

(1) Solicitation, and
(2) attempt
merge into the substantive offense

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3
Q

What are the essential elements of a crime?

A

(1) A voluntary act or omission

(2) Mental State

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4
Q

What are the ways that a duty to act may arise?

A

(1) Statute requires (ex: file taxes)
(2) Contract (ex: nurse)
(3) Relationship (parent must protect)
(4) Voluntary assumption of a duty
(5) ∆’s own conduct created the peril

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5
Q

What are the four common law mental states of a crime?

A

(1) Specific Intent Crime
(2) Malice Crimes
(3) General Intent Crimes
(4) Strict liability crimes

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6
Q

What are the Specific Intent Crimes? (11)

A

Students Can Always Fake A Laugh Even For Ridiculous Bar Facts

  1. Solicitation (inchoate offense)
  2. Conspiracy (inchoate offense)
  3. Attempt (inchoate offense)
  4. First Degree Murder
  5. Assault
  6. Larceny
  7. Embezzlement
  8. False Pretenses
  9. Robbery
  10. Burglary
  11. Forgery
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7
Q

What is a Malice Crime, and what are those crimes? (2)

A

Malice = Reckless indifference

1) Murder (common law, which is 2nd degree
(2) Arson

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8
Q

What are the general intent crimes?

A

(1) Rape

(2) Battery

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9
Q

How do you identify a strict liability crime?

A

(1) If the crime is in the administrative, regulatory, or morality area, and
(2) there are no adverbs in the statute
Then it is meant to be a no-intent (strict liability) crime

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10
Q

If a state has adopted the Model Penal Code (MPC) what are the mental states that will be used?

A

(1) Purposely = conscious objective to engage in certain conduct or cause a certain result
(2) Knowingly = aware that his or her conduct will very likely cause the result
(3) recklessly = consciously disregards a substantial and unjustifiable risk
(4) Negligently = fails to be aware of a substantial and unjustifiable risk

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11
Q

What is an “accomplice”?

A

One who aids, advises, or encourages the principal in the commission of the crime charaged.

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12
Q

What intent must accomplices have to be charged under the crime?

A

The same requisite intent as the substantive crime that has been committed

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13
Q

What criminal liability do accomplices have?

A

Accomplices are liable for the crime itself and all other foreseeable crimes.

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14
Q

How may an accomplice withdraw and cut off future criminal liability?

A

(1) If accomplice encouraged the crime, must repudiate the encouragement
(2) If accomplice aided with assistance, must do everything possible to neutralize this assistance, or
(3) May withdraw by contacting police

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15
Q

What are the inchoate offenses?

A

(1) Solicitation
(2) Conspiracy
(3) Attempt

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16
Q

What is “solicitation?”

A

(1) Asking someone to commit a crime. Crime is finished after the question is asked.
(2) Not necessary for person to agree to commit the crime
(3) If person agrees, solicitation merges into conspiracy
(4) Factual impossibility is no defense

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17
Q

What is “conspiracy?”

A

(1) An agreement with intent to pursue an unlawful objective + overt act (minority does not require overt act)

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18
Q

For what crimes is a conspirator liable?

A

Every conspirator liable for all crimes if they were:

  • (a) foreseeable, and
  • (b) in furtherance of the conspiracy
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19
Q

What is the difference between the Common Law approach to Conspiracy and the MPC approach?

A

(1) Common law requires bilateral agreement

(2) Modern trend and MPC only require one party to have genuine criminal intent

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20
Q

What counts as an overt act for a charge of conspiracy?

A

Any little act if it is in furtherance of conspiracy. Even mere preparation works for conspiracy.

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21
Q

What is an “attempted” crime?

A

(1) Specific intent + substantial overt act (more than preparation)
(2) Abandonment as a defense: depends on jurisdiciton

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22
Q

Is abandonment a valid defense to a charge of an attempted crime?

A

(1) Majority: after substantial step, no.
(2) MPC: Only if:
- (a) abandonment is fully voluntary, and
- (b) a complete renunciation of criminal purpose

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23
Q

Is impossibility a valid defense to an attempted crime?

A

(1) Legal impossibility (thing isn’t a crime) IS a defense

(2) Factual impossibility is not a defense

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24
Q

What are the tests for a defendant’s insanity?

A

(1) N’Naughten Rule
(2) Irresistible impulse
(3) Durham Rule
(4) Model Penal Code definition

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25
Q

What is the M’Naughten definition?

A

If:
(1) At the time of conduct, ∆ lacked the ability to KNOW THE WRONGFULNESS OF HIS ACTIONS or understand the nature and quality of his actions

Then he was insane.

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26
Q

What is the “irresistible impulse” definition?

A

If:
the ∆ LACKED CAPACITY FOR SELF CONTROL and free choice,

then ∆ was insane.

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27
Q

What is the Durham definition?

A

If:
the ∆’s conduct was a PRODUCT OF MENTAL ILLNESS,

then ∆ was insane.

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28
Q

What is the Model Penal Code definition of insanity?

A

If
∆ lacked THE ABILITY TO CONFORM HIS CONDUCT to the requirements of the law,

then ∆ was insane

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29
Q

Is intoxication a valid defense?

A

(1) voluntary: only for specific intent crimes

(2) involuntary: valid defense to all crimes

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30
Q

Is infancy a defense?

A

(1) Under age 7: no criminal liability

(2) Under age 14: rebuttable presumption of no criminal liability

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31
Q

In jurisdictions requiring retreat prior to using deadly self-defense force, what are the exceptions?

A

No duty to retreat if the ∆ was a victim of a rape or robbery.

Police officers also have no duty to retreat.

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32
Q

Is there a duty to retreat prior to using deadly force?

A

Majority: no
Minority: yes, but not in one’s home or other exceptions.

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33
Q

How may an original aggressor get back to a “self defense” defense?

A

Original aggressor MUST:

(1) withdrawn, and
(2) communicate withdrawal

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34
Q

Is “defense of others” a valid defens?

A

(1) Yes, if ∆ reasonably believed that the person assisted would have had the right to use force in his own defense
(2) Majority: no need for a “special relationship”

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35
Q

Is defense of a dwelling a valid defense?

A

(1) Yes, but deadly force may never be used solely to protect property.

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36
Q

What are the requirements for “duress” as a defense, and what are its limitations?

A

Requirements:

(1) ∆ acted under threat of imminent infliction of death or great bodily harm (to ∆ or 3rd person), and
(2) ∆’s belief was reasonable

Limitation:
(1) NOT a defense to homicide

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37
Q

When is “necessity” a valid defense, and how does it differ from duress as a defense?

A

Defense to property crimes, if:
(1) Due to pressure from natural forces, ∆ reasonably believed that conduct was necessary to prevent a greater societal harm

Differs from duress b/c duress is in response to human threat, and necessity is in response to a natural force.

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38
Q

When is mistake of fact a valid defense?

A
  1. General Rule: mistake of fact is a defense when it negates intent
  2. Malice & General Intent Crimes: mistake must be reasonable
  3. Specific Intent Crimes: mistake does NOT have to be reasonable
  4. Strict Liability Crimes: NEVER a valid defense
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39
Q

What is the difference between a “mistake of fact” defense and a “factual impossibility” defense?

A

(1) Mistake of fact: ∆ never had intent to commit crime

(2) Factual Impossibility: ∆ had intent, but crime is not possible under the circumstances

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40
Q

Is consent of the victim generally a defense?

A

NO.

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41
Q

When is “entrapment” a valid defense, and what should you look for as a tip to analyze this defense?

A

Valid only if:

(1) the criminal design originated with law enforcement officers, AND
(2) the ∆ must not have been predisposed to commit the crime

Tip off: undercover cops

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42
Q

What are the elements of Battery?

A

(1) Unlawful application of force to the person,

(2) Resulting in bodily injury or offensive touching

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43
Q

What intent is required for the crime of battery?

A

General intent

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44
Q

What are the elements of Assault?

A

(1) attempt to commit a battery, OR

(2) The intentional creation (other than mere words) or a reasonable apprehension of, imminent bodily harm

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45
Q

What are the elements of Aggravated Assault?

A

(1) the use of deadly or dangerous weapon, OR

(2) with the intent to rape, maim, or murder

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46
Q

What is the definition or murder (generally)?

A

Murder = unlawful killing of another human being with MALICE AFORETHOUGHT

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47
Q

What is “malice aforethought?”

A

Malice aforethought =

(1) intent to kill
(2) intent to inflict great bodily harm
(3) intent to commit a felony, or
(4) reckless indifference to an unjustifiably high risk to human life

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48
Q

How is “proximate cause” analyzed for the crime of murder?

A

(1) ∆ is responsible for all results that occur as a NATURAL AND PROBABLE CONSEQUENCE for his conduct
(2) Even if ∆ did not anticipate the exact manner in which those consequences would occur

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49
Q

What are the three categories of First Degree Murder?

A

(1) Premeditated killing: ∆ acted w/ intent/knowledge that his conduct would cause death
(2) Felony Murder
(3) Homicide of Police Officer

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50
Q

What is Felony Murder?

A

(1) Any foreseeable killing (even accidental) committed during the course of a felony
(2) Including while fleeing, unless ∆ reaches temporary safety first

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51
Q

What are the defenses to Felony Murder?

A

(1) Defense to underlying felony = defense to felony murder

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52
Q

Can the death of a co-felon result in the ∆ being convicted of Felony Murder?

A

∆ is not liable for death of a co-felon as a result of:

(1) resistance by the victim, or
(2) police killing co-felon

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53
Q

What are the requirements for the homicide of a Police Officer to count as First Degree Murder?

A

(1) ∆ must have known that victim was a police officer, and

(2) officer must be acting in the line of duty

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54
Q

What are the two categories of Second-Degree murder?

A

(1) Depraved Heart Killing: reckless indifference to an unjustifiably high risk to human life
(2) Murders otherwise not classified as 1st Degree Murder

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55
Q

What are the three categories of Manslaughter?

A

(1) Voluntary Manslaughter
(2) Imperfect Self-Defense Manslaughter
(3) Involuntary Manslaugther

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56
Q

What are the elements of Voluntary Manslaughter?

A

(1) heat of passion resulting from adequate provocation
(2) sudden and intense passion in the mind of an ordinary person such to cause him lose control
(3) no sufficient time for reasonable person to cool off, and
(4) ∆ did not, in fact, cool off

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57
Q

What are the elements of Imperfect Self-Defense Manslaughter?

A

∆ had honest, but unreasonable, belief that life was in imminent danger and killed victim.

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58
Q

What are the elements of Involuntary Manslaughter?

A

(1) Killing by criminal negligence, OR

(2) Misdemeanor manslaughter: killing during the commission of a misdemeanor or unenumerated felony

59
Q

What is False Imprisonment?

A

Unlawful confinement of a person without valid consent.

60
Q

What is are the elements of Kidnapping?

A

(1) Confinement of a person, with

(2) some movement or concealment in secret place

61
Q

What is the one thing you need to know about the crime of rape?

A

slightest penetration = rape

62
Q

What do you need to know about Statutory Rape?

A

(1) Consent is no defense

(2) Mistake of fact is no defense

63
Q

What are the elements of Larceny?

A

(1) Wrongful taking
(2) carrying away (asportation)
(3) with intent to permanently deprive

64
Q

What counts as “asportation” for the crime of Larcency?

A

The slightest movement of the property.

65
Q

What is the intent required for the crime of Larcency?

A

(1) Intent to deprive permanently must exist AT THE TIME OF THE TAKING
(2) But, if ∆ takes, then later decides to keep, could be guilty of larceny under the theory of “continuing trespass”

66
Q

If ∆ takes property believing it to be his, can he be guilty of Larceny?

A

No, if ∆ mistakenly believes that the property is his, this is not common law larceny.

67
Q

What are the characteristics of Embezzlement?

A

(1) Embezzlement = he fraudulent conversion of another’s property
(2) Just requires possession, not asportation
(3) Embezzler always has lawful possession of property first.

68
Q

What is the crime of False Pretenses?

A

(1) ∆ persuades owner of property to CONVEY TITLE by false pretense.
(2) False representation could be present or past fact, but NOT a promise to do something in the future

69
Q

What is Larceny By Trick?

A

∆ persuades owner of property to give him possession under false representation.

70
Q

What are the elements of Robbery?

A

(1) Taking of personal property of another
(2) In the victim’s presence
(3) By force or imminent threat of force
(4) With intent to permanently deprive him of it

71
Q

What is Extortion?

A

Knowingly seeking to obtain property or services by means of a future threat.

72
Q

What is Forgery?

A

The making or altering of a false writing with intent to defraud.

“Writing” = any writing that has apparent legal significance

73
Q

What are the elements of Burglary?

A

(1) Breaking and entering
(2) Of a dwelling of another
(3) At night
(4) With intent to commit a felony therein

74
Q

What counts as “breaking” for the purposes of Burglary?

A

(1) Actual: moving the door/window, including interior doors
(2) Constructive: threats/fraud

75
Q

What counts as “entering” for purposes of Burglary?

A

Any part of he body crossing into the house (reaching through a window works)

76
Q

What is Arson?

A

The malicious burning of the dwelling of another.

77
Q

What does “malicious” mean for Arson?

A

Acting with reckless indifference or disregard of an obvious risk that the structure would burn

78
Q

What are the relevant Constitutional provisions for Criminal Procedure?

A

(1) 4th Am: unreasonable search and seizure
(2) 5th Am: self-incrimination, double jeopardy
(3) 6th Am: speedy trial, trial by jury, confront witnesses, assistance of counsel
(4) 8th Am: cruel and unusual punishment

79
Q

What is the Exclusionary Rule (evidence)?

A

Victim of an illegal search or coerced confession can (among other remedies) have the product of the illegal search or coerced statement EXCLUDED from any subsequent criminal prosecution.

80
Q

What are some limitations on the Exclusionary Rule?

A

(1) Grand Juries: exclusion doesn’t apply
(2) Civil Proceedings: exclusion doesn’t apply
(3) Parole Revocation Proceedings: exclusion doesn’t apply
(4) Impeachment Purposes: illegal seized evidence may be admitted to impeach the credibility of ∆
(5) Violations of the Knock-Announce Rule: doesn’t result in exclusion

81
Q

What is the Poisonous Tree doctrine?

A

All evidence obtained OR DERIVED from police illegality is also excluded

82
Q

What is the exception to the Poisonous Tree doctrine?

A

Miranda violations, unless done in bad faith, do not result in exclusion

83
Q

How do police get around the Poisonous Tree doctrine?

A

3 I’s:

(1) Independent source of info
(2) Inevitable discoveries
(3) Intervening acts of free will by the ∆

84
Q

If improperly obtained evidence is admitted at trial, will a conviction be upheld?

A

Harmless error test:

Yes, if the conviction would have resulted despite the improper evidence.

85
Q

What is required for police to make an arrest?

A

Probable cause

86
Q

Are arrest warrants needed in order to make an arrest?

A

(1) No, for an arrest in a public place.

(2) Yes for arrests in a home, except in emergencies

87
Q

What is needed to compel someone to come to the police station for fingerprinting or interrogation?

A

Probable cause; this is essentially an arrest

88
Q

What is required for police to perform an investigatory detention (Terry stop)?

A

(1) Reasonable suspicion of criminal activity, AND

(2) Articulable facts supporting that suspicion

89
Q

What is required for a traffic stop?

A

Reasonable suspicion of a legal violation, except for checkpoint roadblocks

90
Q

What are the rules regarding traffic stops and police dogs?

A

(1) sniff ≠ search, so long as it does not extend beyond the time it takes to do a normal inquiry and ticket writing
(2) An “alert” by police dog can be probably cause for a drug search

91
Q

What is required for a dog sniff directly outside of a home?

A

Probable cause, this is a search.

92
Q

What counts as government conduct for the purpose of search and seizure?

A

(1) Publicly paid police, or

(2) private individual acting under the direction of public police

93
Q

Where is there a “reasonable expectation of privacy?”

A

Always:
(1) You own the premises
(2) You live at the premises
(3) You are staying overnight on the premises
Sometimes:
(1) You own the item seized; depends on expectation of privacy where the item was located
NO: things held out to the public

94
Q

What do police need for a valid search warrant?

A

(1) probable cause: fair probability that contraband or evidence of a crime will be found in the area, AND
(2) Particularity: specific place to be searched and things to be seized

95
Q

Can a warrant be solely based on an anonymous informant?

A

No.

96
Q

Is informant information sufficient to get a valid search warrant?

A

Look at totality of circumstances:

(1) informant’s credibility
(2) informant’s basis for knowledge

97
Q

When is a no-knock entry permitted?

A

If knocking and announcing would be dangerous, futile, or inhibit the investigation (destruction of evidence)

98
Q

Does an officer’s good faith reliance on a search warrant overcome defects with probable cause or particularity requirements?

A

Yes, but there are exceptions.

99
Q

What are the exceptions to a good faith defense to defects in a search warrant?

A

Exceptions:

(1) so lacking in probable cause that no reasonable officer would rely
(2) so lacking in particularity that no reasonable officer would rely
(3) officer/prosecutor lied or misled the magistrate
(4) magistrate is biased and therefore has wholly abandoned his neutrality

100
Q

What are the ten exceptions to the warrant requirement?

A

(1) Search incident to arrest
(2) Emergency
(3) Automobile exception
(4) Plain view
(5) Consent
(6) Stop and frisk
(7) Evanescent evidence
(8) Hot pursuit
(9) Inventory searches
(10) Public school searches

101
Q

What is a search incident to arrest?

A

(1) Search contemporaneous in time and place with arrest
(2) only person and areas within reach may be searched
(3) car search incident to arrest, only IF:
- (a) arrestee is unsecured and may gain access, or
- (b) police reasonably believe evidence for the arrest may be found inside vehicle

102
Q

What is the emergency exception to the warrant requirement?

A

A warrantless search is justified if the officer faces emergency of health or safety of individual or public

103
Q

What is the automobile exception to the warrant requirement?

A

If there is probable cause to search the car, any package/luggage that could reasonably contain the item that gave rise to probable cause may be inspected

104
Q

What is the plain view exception to the warrant requirement?

A

(1) Police may seize contraband/evidence that is in plain view
(2) Police must be legitimately present at the location of the viewing of the item seized.
(3) It must be IMMEDIATELY APPARENT that the item is contraband or the fruit of a crime

105
Q

What are the rules on 3rd party consent to a search?

A

(1) Anyone who has a right to the property may consent to its search
(2) if two people are present and one objects to the search, then no search
(3) If objecting person is removed for lawful reason, then search may go forward at the consent of a consenting person

106
Q

What are the rules of Stop and Frisk stops and searches?

A

(1) Must be reasonable suspicion
(2) May pat down the outer clothing and body to check for weapons
(3) If by the PLAIN FEEL something seems to be a weapon, it may be removed and will be admisisble

107
Q

During a traffic stop, when may an officer frisk or search a car for weapons?

A

(1) If officer reasonably believes person is armed and dangerous, may frisk.
(2) may search areas of vehicle where weapon may be placed

108
Q

What is the “evanescent evidence” exception to the warrant requirement?

A

(1) If the evidence might disappear quickly, officer may search.

Example: officer may scrape under fingernails w/o warrant b/c evidence may be gone quickly

But: if practical, must get warrant to do a DUI blood sample

109
Q

What is the hot pursuit exception to the warrant requirement?

A

(1) Police may follow a fleeing felon w/o warrant if they are w/in ~15 minutes
(2) Any evidence found while on hot pursuit will be admissible

110
Q

What is the “inventory search” exception to the warrant requirement?

A

Before incarceration of arrestee, police may search:

(1) arrestee’s personal belongings, and
(2) arrestee’s entire vehicle.

111
Q

What are the requirements for a search in Public Schools?

A

Requirements:

(1) moderate chance of finding evidence of wrongdoing
(2) measures are reasonably related to objectives of search
(3) not excessively intrusive

112
Q

Is a warrant needed for wiretapping or eavesdropping?

A

Yes, except:

(1) person agrees to wear a wire then go talk to ∆, or
(2) there is no attempt to keep the conversation private

113
Q

What is the trigger for needing a Miranda warning?

A

“Custodial Interrogation”

custodial = reasonable person would not feel free to leave

Interrogation = any conduct where police knew or should have known they might elicit an incriminating response from suspect

114
Q

What are the required substantive elements of a proper Miranda Warning?

A

(1) Right to remain silent
(2) anything you say can be used against you
(3) You have the right to attorney
(4) If you can’t afford, one will be appointed it you desire

115
Q

What are the requirements for a Miranda waiver?

A

Knowing and Voluntary

116
Q

How must a ∆ invoke his Miranda rights?

A

Unambiguously.

117
Q

After an individual has invoked his right to remain silent, may police continue questioning?

A

Only if:

(1) Wait a significant amount of time
(2) ∆ is re-mirandized, and
(3) questioning is limited to crime that was NOT the subject of earlier questioning

118
Q

If ∆ has invoked right to counsel, what must occur?

A

All questions must cease until:

(1) ∆ gets an attorney, or
(2) ∆ initiates further questioning

119
Q

What is the “break in custody” requirement for police to continue questioning?

A

If there is a break in custody, like going to the general prison population, police may come back and ask ∆ to waive Miranda rights after 14 days.

120
Q

How may a pretrial identification be challenged by the ∆?

A

(1) Denial of due process: certain ID techniques are so unnecessarily suggestive as to deny due process
(2) Denial of right to counsel in POST-charge line-ups

No right to counsel: police showing witness photographs, taking blood sample, handwriting sample, pre-charge line-ups, brief recess during ∆’s testimony at trial, parole/probation revocation hearings, taking fingerprints

121
Q

What are the ∆’s rights during grand jury proceedings?

A

Essentially none. No right to appear, no right to send witnesses.

122
Q

What are the rules regarding bail?

A

(1) bail issues are immediately appealable

(2) preventative detention is constitutional

123
Q

What is the Brady Rule?

A

Prosecution’s failure to disclose exculpatory evidence (willful or inadvertent) violates Due Process Clause and may be grounds for reversal.

124
Q

What is the test for reversal due to a Brady Rule violation?

A

Reversed IF:

(1) evidence was favorable to ∆, and
(2) prejudice resulted and there is a meaningful probability that the result would have been different if info was disclosed.

125
Q

What are a ∆’s primary trial rights?

A

(1) Right to an unbiased judge
(2) Right to a jury trial
(3) Right to Counsel
(4) Right to confront witnesses

126
Q

What is the standard for bias for judges?

A

Bias =

(1) having some financial interest in the outcome, or
(2) some actual malice against ∆

127
Q

What are the rules regarding the right to a jury trial?

A

(1) ∆ has right to jury if max authorized sentence is MORE than 6 months
(2) 6-12 jurors required
(3) if 12, no constitutional right to unanimity
(4) If 6, must be unanimous
(5) Jury pool must be fair cross-section

128
Q

What are the requirements for a ∆ to exercise his right to represent himself?

A

Okay IF:

(1) waiver is knowing
(2) waiver is intelligent
(3) ∆ is competent to proceed pro se

129
Q

When does the ∆ have right to counsel?

A

All CRITICAL stages of prosecution

130
Q

What are the requirements for a challenge of ineffective assistance of counsel?

A

(1) deficient performance by counsel (particular errors), and
(2) but for deficiency, there is a reasonable probability that result would have been different

131
Q

What are the exceptions to a ∆’s right to confront witnesses?

A

(1) important public purpose (child abuse)

(2) ∆ is disruptive and removed

132
Q

If the ∆ wants to plead guilty, what must the judge address on the record?

A

(1) Nature of the charge
(2) maximum authorized penalty and mandatory minimums
(3) right to plead not guilty and demand trial

133
Q

What are the possible bases for withdrawing a guilty plea after sentencing?

A

(1) Plea was involuntary
(2) lack of jurisdiction
(3) ineffective assistance of counsel
(4) failure of prosecutor to keep agreed upon plea bargain

134
Q

What constitutional issues are there regarding the Death Penalty?

A

(1) All relevant mitigating evidence must be admissible and presented
(2) No automatic categories for death penalty
(3) Giving ∆ the death penalty is ALWAYS the jury’s decision

135
Q

When does double jeopardy attach?

A

When:

1) jury is sworn (jury trial) or
(2) first witness is sworn (bench trial

136
Q

In what circumstances does retrial not violate double jeopardy?

A

(1) jury can’t agree on verdict
(2) mistrial for manifest necessity (usually med emergencies)
(3) successful appeal - although ∆ can’t be charged w/ more serious crime second time around
(4) breach of agreed upon plea bargain by ∆

137
Q

What is the double jeopardy rule regarding separate sovereigns?

A

Double jeopardy only bars retrial for the same offense by the same sovereign.

138
Q

If ∆ has already had trial for one crime, may ∆ be charged with a lesser or greater crime that was included in the prior/current charge?

A

No, except if charged w/ battery and victim later dies.

139
Q

What are the rules regarding the 5th Amendment privilege against self-incrimination?

A

(1) Must assert FIRST time asked, or else privilege is waived
(2) Must assert in civil proceedings, or privilege is waived

140
Q

What are some examples of non-testimonial evidence that the prosecution CAN compel the ∆ to produce?

A

(1) blood samples
(2) handwriting samples
(3) voice sample
(4) hair sample

141
Q

What are the rules regarding ∆’s refusal to testify under the 5th Amendment and the prosecution’s acknowledgement of this fact?

A

(1) Prosecution may not negatively comment on ∆’s failure to testify/remain silent (subject to harmless error test)
(2) Exception: if ∆’s counsel says ∆ didn’t get to tell his side

142
Q

What are the three ways to eliminate a person’s 5th Amendment privilege against self-incrimination?

A

(1) granting immunity to the person testifying
(2) No possibility of incrimination (ex: SOL has run)
(3) Waiver

143
Q

Is a cheek swab for DNA after an arrest for a serious crime acceptable?

A

Yes.

Bar Exam (26 decks)

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