Criminal Procedure

Question 1

4th Amendement Warrant Requirement

Answer 1

The fourth amendment warrant requirement requires that searches are conducted pursuant to a warrant based on probable cause that the place to be searched contains the item to be seized and that the warrant is issued by a neural magistrate.

Question 2

4th Amendment Standing

Answer 2

To assert a 4th amendment violation, an individual must have standing, meaning their own constitutional rights were violated.

To show standing, a person must have had a reasonable and legitimate expectation of privacy in the place that was searched or where the item was seized.

Question 3

6th Amendment Right to Counsel

Answer 3

The sixth amendment right to counsel provides all criminal defendants with the auto right to counsel once formal adversarial judicial proceedings have commenced (i.e. formal charge, preliminary hearing, indictment, arraignment, and in some states an arrest warrant).

The right is offense specific. Representation by counsel on one criminal matter does not guarantee counsel for uncharged offenses.

Question 4

6th Amendment Right to Jury Trial

Answer 4

The sixth amendment provides the right to trial by jury.

Where a sentence may be increased beyond the statutory minimum for a crime if additional facts are proved, the proof of those facts must be submitted to a jury and proved beyond a reasonable doubt.

Question 5

Accomplice Liability

Answer 5

For a jury to convict a defendant of a substantive crime as an accomplice, the accomplice must have acted with intent to assist the principal in the commission of the crime and have the intent that the principal commits the offense charged.

When the substantive offense has recklessness or negligence as its mens rea, most jurisdictions hold that the intent element is satisfied where the defendant accomplice intended to facilitate the commission of the crime and acted with the requisite mens rea required for the underlying offense.

Question 6

Armed Robbery Definition

Answer 6

Armed robbery is the taking of property from another by force or threat of intimidation, with the intent to permanently deprive the person of that property.

Question 7

Arrest

Answer 7

The police may lawfully make an arrest where the law provides a basis for doing so.

Question 8

Attempt

Answer 8

The model penal code and most criminal codes require that the prosecution prove that the actions went beyond mere preparation. Defendant’s conduct must be a substantial step towards the commission of a crime and is corroborative of his criminal intent.

Some courts apply the proximity test which requires showing that the conduct is proximate or dangerously proximate to committing the crime.

Question 9

Attempted Armed Roberry

Answer 9

To establish the elements of attempted armed robbery, the prosecution must show that the defendant intended to commit an armed robbery and took some overt act in furtherance of the crime.

Question 10

Automobile Exception

Answer 10

The automobile exception allows the police to search an automobile without a warrant where there is probable cause.

Question 11

Beyond a Reasonable Dount

Answer 11

For a jury to find a defendant guilty, the state must prove its case beyond a reasonable doubt.

Question 12

Burden of Proof

Answer 12

The due process clause of the constitution requires that the prosecution prove all elements of an offense against a criminal defendant beyond a reasonable doubt.

Question 13

Burden of Proof - Motion for judgment of acquittal

Answer 13

a motion for judgment of acquittal should be only granted if the prosecution fails to present sufficient evidence for a reasonable jury to find that the defendant committed each element of the offense beyond a reasonable doubt.

Question 14

Burglary

Answer 14

At common law, burglary is the breaking and entering of the dwelling house of another at night with the intent to commit a felony therin.

Breaking refers to a physical act allowing entry into the dwelling. This does not require excessive force or damage.

Entering requires that all or part of the defendant (or some object used by defendant) enter the dwelling.

A dwelling is a place where a person resides.

The defendant must have intended to commit a felony at the time he enters the dwelling, even if the felong is never completed.

Question 15

Causation

Answer 15

The conduct must be the actual (but-for) and proximate (foreseeable) cause of the resulting death.

Question 16

Competence

Answer 16

Due process prohibits the prosecution of a defendant if he is incompetent to stand trial.

Competence or fitness to stand trial refers to the defendant’s ability to understand the proceedings against him and assist in his own defense.

Defendant must have the present ability to consult with his lawyer with a reasonable degree of understanding and a rational understanding of the proceedings against him.

If the defense can make a bonafide doubt as to the defendant’s decision making, the court must hold a hearing to determine the defendant’s competence to stand trial. During this proceeding, the burden of evaluating competency is placed on the courts and court - appointed experts.

Question 17

Conclusive Presumption

Answer 17

A jury instruction that creates an irrebuttable conclusive presumption that cannot be disputed or overcome by additional evidence is a per se violation of the due process clause.

Question 18

Custodial Interrogation - Prison

Answer 18

The court has held that the release of a person from an interrogation back into his normal life in prison population ends the inherently compelling pressures of custodial interrogation

Question 19

Custody Definition

Answer 19

Custody is determined by whether a reasonable person would fee that their freedom of movement is denied in a significant way.

Question 20

Defense of Abandonment

Answer 20

generally abandonment is not a defense to the crime of attempt once the conduct goes beyond mere preparation.

Some jurisdictions recognize abandonment of an attempt before the crime is completed. It must be shown that the abandonment was completely voluntary and not made because of the difficulty of completing the crime or due to increased apprehension.

Question 21

Defense of Duress

Answer 21

Duress is an affirmative defense that excuses a defendant from criminal liability if his conduct was committed in response to an unlawful threat or harm.

The threat of harm must cause the defendant to reasonably believe that the only way to avoid imminent death or serious bodily harm to himself is to engage in conduct that violates the law.

Duress is not available as a defense to any intentional homicide.

The defendant must prove the criminal violation occurred because of the threat and not for some other reason.

Under the MPC, the affirmative defense of duress is defined as a threat that a reasonable person would be unable to resist.

Question 22

Depraved Heart Murder

Answer 22

In instances where a person recklessly causes the death of another, the individual may be charged with depraved heart murder if the person acted with extreme indifference to human life.

Question 23

Double Jeopordy

Answer 23

the double jeopardy clause of the Fifth Amendment prohibits anyone from being prosecuted twice for substantially the same crime.

An individual may be prosecuted for more than one offense stemming from a single course of conduct when each offense requires proof of a fact that the other does not. in this case, convicting the defendant of both crimes would not violate double jeopardy.

Question 24

Embezzlement

Answer 24

Embezzlement is the fraudulent conversion of the property of another by a person in lawful possession of that property.

the misappropriation of the property occurs while the defendant has possession of the property

Conversion is met when a person unlawfully converts property owned by another to his own use with the intent to permanently deprive the lawful owner of the property.

Question 25

Exclusionary Rule

Answer 25

Under the exclusionary rule, evidence obtained in violation of the fourth amendment may not be used against the person whose rights were violated.

Question 26

Failure to Miranda

Answer 26

If officers were required to read a suspect his miranda rights and failed to do so, the statements should be supressed

Question 27

false statements

Answer 27

most courts find that a defendant acts knowingly when the defendant is aware with a high probability of the statements’ falsity and deliberately avoids learning the truth.

If the defendant believes that the statement is true, then it can not be false pretences.

Question 28

Fifth Amendment - Self Incrimination

Answer 28

The fifth amendment protects individuals against self-incrimination

Question 29

Fourth Amendment

Answer 29

The fourth amendment protects individuals from unreasonable search and seizures

Question 30

Fruit of the Poisonous Tree

Answer 30

Under the fruit of the poisonous tree doctrine, evidence derived from unconstitutionally seized evidence is generally excluded. This does not apply to Miranda violations unless it is found that the questioning is part of the same scheme.

Question 31

Intent to Defraud

Answer 31

intent to defraud is established when the defendant made the false representation with the intent that the victim will rely upon it.

Question 32

Interrogation

Answer 32

Interrogation is any conduct or questioning by police intended to elicit a criminal response

Question 33

Intervening Act

Answer 33

An intervening act or event will break the chain of causation and will shield the defendant from criminal liability if the event was not foreseeable.

Question 34

Involuntary Confession

Answer 34

Any involuntary confession will be supressed as a violation of the Due Process Clause of the 14th amendment.

Question 35

Involuntary Manslaughter

Answer 35

Involuntary manslaughter is an unintentional killing of another

Some states hold that criminally negligent / involuntary manslaughter arises when the defendant knew or should have known that his conduct created a substantial risk of death.

Some states also recognize involuntary manslaughter when a death occurs as a results of the defendant’s commission of an unlawful act.

Question 36

Larceny

Answer 36

Larceny is defined as the taking and carrying away the personal property of another with the intent to permanently deprive the owner of his property.

the taking must be trespassory, meaning without the owners consent.

The defendant must have the requisite intent to steal at the time of the taking.

The intent to temporarily retain property and then return it to the rightful owner provides a defense to larceny.

Question 37

Larceny by False Pretences

Answer 37

Larceny by false pretences requires shoding that 1) the defendant obtained title; 2) to the property of another (including money); 3) by making a false representation of a material past or present fact; and 4) with the intent to defraud another.

Title must transfer otherwise the crime would be the lesser offense of larceny by trick

the false representation must be one of fact as opposed to opinion.

Commercial puffery does not give rise to false pretences.

Question 38

M’Naghten test for insantiy

Answer 38

The M’Naghten test requires that in order to establish a defense of Not Guilty by Reason of Insanity, the defendant must show that at the time of the charged crime; 1) the defendant suffered from a mental disease or defect of reason, and 2) as a result of that disease or defect the defendant did not know the nature and quality of the act or that the conduct was wrong.

Defendant must establish this by the preponderance of the evidence

Question 39

Malice Aforethought elements

Answer 39

Malice Aforethought requires a killing with 1) the intent to kill; 2) the intent to inflict great bodily harm; 3) a depraved heart, or 4) with reckless disregard or a high degree of indifference to the value of human life.

Question 40

Mandatory Presumption

Answer 40

A jury instruction that creates a reubttable mandatory presumption violates the due process clause if it shifts the burden of proof to the defendant on an element of the offense.

Question 41

Maximum Sentence

Answer 41

the maximum sentence the judge may imposed must be based on the facts reflected in the jury verdict or admitted by the defendant

Question 42

Mental Disease test

Answer 42

in determining whether a defendant suffered from a mental disease or defect of reasoning, a court will consider the defendant’s diagnosis, treatment, other signs of cognitive impairment with friends and family, maintaining relationships with friends and family, and managing day to day tasks.

Question 43

Miranda

Answer 43

Miranda warnings must be given to a suspect prior to any custodial interrogation by police

Question 44

Miranda Requirments

Answer 44

Miranda requires that law enforcement inform a suspect of their right to remain silent and the right to a presence of an attorney and if they can not afford an attorney one will be appointed for him prior to any questioning if he so desires.

Recitation need not be verbatim. Rather they must reasonably convey to the suspect his rights as required by Miranda.

Question 45

Murder Definition

Answer 45

Common law murder is defined as a killing with malice aforethought.

Question 46

Officer Motive

Answer 46

the officer’s motive that the stop served as a pretext for investigating other criminal wrongdoing does not matter.

Question 47

Plain View Exception

Answer 47

Under the plain view doctrine, the police may seize an item in plain view from a place where they are lawfully permitted to be if the officer has immediate probably cause to believe that the item is contraband or evidence, instrumentalities or fruits of a crime.

Question 48

Police duty to inform that lawyer is trying to contact defendant

Answer 48

Police do not need to inform the defendant that a lawyer is attempting to see him as long as adversarial judicial proceedings have not commenced.

Question 49

Probable Cause - Miranda violation

Answer 49

probable cause may be established based on a statement taken in violation of the defendant’s Miranda rights even where the statement is suppressed.

Question 50

Public Safety Exception

Answer 50

There is a limited public safety exception recognized by the supreme court if a police interrogation is reasonably prompted by a concern for public safety, then responses to questions bay be used in court, even though miranda warnings were not given.

Question 51

Reasonable Expectation of Privacy

Answer 51

A person has a reasonable expectation of privacy in their home, office, hotel, or even if they were an overnight guest.

The reasonable expectation of privacy in one’s property is surrendered upon giving that item to a third party.

Question 52

Receiving Stolen Property

Answer 52

receiving stolen property requires that the defendant receive possession and control of the stolen property knowing that it was obtained in an unlawful manner by another with the intent to permanently deprive the owner of his property.

stolen property includes property obtained through larceny, embezzlement and false pretences.

Under the modern view, proof of the requisite knowledge can be inferred from surrounding circumstances.

Question 53

Request for Counsel

Answer 53

Request for counsel must be clear and unambiguous upon which all questioning by the police must stop.

If the request is not an unambiguous or unequivocal statement, the police are under no obligation to seek clarification.

Question 54

Resume questioning after time period

Answer 54

The supreme court has held that if the defendant has been released from custody for at least 14 days, since he last requested a lawyer, the police may resume questioning him if he waives his right to a lawyer at that time.

Question 55

Right to Counsel - Attachment

Answer 55

once the 6th amendment right to counsel has attached, any attempts by the police to deliberately elicit statements from the defendant in the absence of counsel violates this right.

Question 56

Seized Definition

Answer 56

A person has been seized if a reasonable person would have believed that he was not free to leave

The police may briefly detain an individual if the police have a reasonable suspicion that the individual in question has been recently involved in criminal activity.

Question 57

Suppression of Statements

Answer 57

Statements obtained during custodial interrogation in violation of miranda are excluded from the prosecutor’s case-in-chief.

Question 58

Traffic Stop

Answer 58

The police may reasonably stop an automobile where there is probable cause to believe that a traffic violation occurred.

Question 59

Voluntariness (confession)

Answer 59

The voluntariness of a confession is based on the totality of the circumstances. Courts consider
- whether police subjected the suspect to coercive conduct
- and whether the conduct was sufficient to overcome the will of the suspect
- the suspects individual characteristics including age, level of education and familiarity with the justice system.

Question 60

Voluntariness - Miranda Waiver

Answer 60

Waiver of miranda must be knowing, intelligent and voluntary.

Voluntary means free of intimidation, coercion, or deception.

Knowing and intelligent means that the defendant has full awareness of the nature of the rights and consequences of abandoning them.

Question 61

Waiver of Miranda

Answer 61

Waiver of miranda rights must be knowing, intelligent and voluntary.

Question 62

Wrongfulness Definition

Answer 62

Many states differ on the definition of wrongfulness.

Some define it as legally wrong and provide a defense if the defendant’s mental disease or defect prevented him from knowing his acts were legally wrong.

Others define it as morally wrong an provide a defense only if the defendant did not know that his acts were morally wrong, ie. the type acts that society would condemn.

Question 63

8th Amendment - Cruel and Unusual Punishment

Answer 63

the 8th amendment cruel and unusual punishment clause prohibits imposing a death sentence on a person with a severe intellectual disability.

Question 64

Use and Derivative Use Immunity

Answer 64

use and derivative use immunity sufficiently protect a defendant’s 5th amendment right against self-incrimination

Question 65

Grand Jury Room

Answer 65

A defendant does not have a constitutional right to have an attorney present during a grand jury.

The 4th amendment exclusionary rule does not apply to grand jury indictments and is not a basis on which indictments can be dismissed.