GA Criminal Law & Procedure Flashcards
Year and a Day Rule
No followed in GA
Felony Murder
The felony need not be collateral. Therefore, aggravated battery or aggravated assault can be the basis for felony murder. However, if the jury finds that the batter was provoked, the verdict should voluntary manslaughter.
Felony murder applies regardless of whether the kills was committed by a co-felon or by a non-felon and regardless of whether the person killed was a non-felon or a co-felon.
Second Degree Murder
Occurs when, in the commission of cruelty to children in the second degree, the D causes death of another human being irrespective of malice.
Voluntary Manslaughter
Applies unless the cooling off period is sufficient time for the voice of reason and humanity to be heard
Involuntary Manslaughter
To cause death while committing a lawful act in an unlawful way that is likely to cause death or great bodily harm.
Misdemeanor-Manslaughter Rule
When one causes death without intending to do so by the commission of an unlawful act other than a felony, it is involuntary manslaughter.
Battery
- intentionally making physical contact of an insulting or provoking nature with the person of another OR
- intentionally causing physical harm to another
Family Violence Batter
Committed upon
- past or present spouses
- parents of the same child
- foster parents or foster children OR
- persons currently or formally living in the same household
Aggravated Battery
When a person maliciously causes bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, or by seriously disfiguring his body or a member thereof.
Assault
- an attempt to commit a violent injury to the person of another OR
- an act that puts another in reasonable apprehension of immediately receiving a violent injury.
Aggravated Assault
- an assault with the intent to murder, rape, or rob with a deadly weapon or any other device or object that if used against a person. is likely to or actually cause serious bodily injury OR
- discharging a firearm from a motor vehicle at a person
Mayhem
A form of aggravated battery when someone causes malicious bodily harm to another by
- depriving him of a bodily member
- rendering a bodily member useless OR
- seriously disfiguring the victim’s body or a bodily member
Kidnapping
The abducting or stealing away of any person without lawful authority and holding them against their will. When the kidnapping is for ransom or the victim receives bodily injury, the punishment is enhanced to life imprisonment.
Rape
- carnal knowledge of a female forcibly and against her will
- carnal knowledge with a female who is less than 10 years old
Incest
Sexual intercourse with someone he knows he is related to by blood or marriage
Theft by Taking
Unlawful taking or appropriation of property with the intention of depriving the owner of the property. Deprive means
- the withholding of the property of another, either permanently or temporarily OR
- disposing of the property so it is unlikely that the owner will recover it
Theft by Deception
Obtaining of property by 1. deceitful means OR 2. artful practice with the intention of depriving the owner of the property.
Theft by Conversion
After lawfully obtained another’s funds or property with a replacement of $100 or more under an agreement or obligation to make a specific application or disposition of the property, the person knowingly converts the property to his own use in violation of the agreement or other obligation
Lost or Mislaid Property
It is a crime to appropriate property that has been lost or mislaid for one’s own use without taking reasonable measures to return the property to the owner.
Claim of Right
Defense to theft allowed when
- D was unaware that the property or service was that of another
- D acted under an honest claim of right to the property or service or a right to acquire or dispose of the property OR
- D took property or a service expose for sale intending to purchase and pay promptly or reasonably believed that the owner would have consented
Penalties of Theft
Property was worth:
less than $1,500 then misdemeanor
$1,500.01 - $5,000 then imprisonment for 1-5 years
$5,000 - $25,000 then imprisonment for 1-10 years
$25,000+ then imprisonment for 2-20 years
Robbery
Fear must be a fear of immediate serious bodily injury to himself or another and includes sudden snatchings.
Aggravated Robbery
Armed robbery where the property is taken by use of an offensive weapon or a replica or device that has the appearance of a weapon.
Bad Checks
Prima facie evidence that the accused knew the instrument would not be honored if:
- the account had no account with the institution at the time the instrument was made OR
- within 30 days of issuance, the payment was refused by the institution and the accused didn’t make good on the instrument and any service changes within 10 days of being notified that payment was refused
First Degree Forgery
- writing must be uttered or delivered
- knowingly make, alter, or possess any writing
- in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions or by authority of one that didn’t give authority.
Second Degree Forgery
- knowingly make, alter, or possess any writing
- in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions or by authority of one that didn’t give authority.
Burglary
Only requires the entering or remaining in the location without authority.
1st Degree: Breaking into a dwelling (1-20 years)
2nd Degree: Breaking into any building (1-5 years)
First Degree Arson
By fire or explosive, a person knowingly damages or causes, aids, advises, or procures another to damage
- a dwelling of another
- a building used as a dwelling
- a dwelling or other structure that is insured against fire
- dwelling or other structure with intent to defraud the rights of a spouse or co-owner
- building where danger to human life is reasonably foreseeable
Second Degree Arson
D knowingly causes, aids, advises, or procures another to damage, any building, vehicle, railroad car, watercraft, aircraft, or other structure.
Third Degree Arson
D knowingly causes, aids, advises, or procures another to damage personal property worth at least $25 if
- the property is insured OR
- done with the intent to defeat or defraud the rights of a spouse or co-owner
Solicitation
Target offense must be a felony
Attempt
Requires substantial step toward the commission of the crime.
Legal Impossibility
Not a defense to attempt if the crime could have been committed had the circumstances been as the D believed them to be.
Conspiracy
D cannot be convicted of both conspiracy and the completed crime. Conspiracy merges with any attempt to commit the crime.
Insanity
M’Naghten Rule:
- when D didn’t have the mental capacity to distinguish between right and wrong in relation to the offense committed OR
- when at the time of the act, omission, or negligence, the D because of mental disease, injury, or congenital deficiency, acted because of a delusional compulsion as to the act that overcame his will to resist committing the crime
D must waive his right against self-incrimination to pursue an insanity defense if he intends to call an expert witness on the stand.
Intoxication
voluntary intoxication is not a defense unless the D can show that the intoxication resulted in more than a temporary alteration of brain function that made it so the D couldn’t form the requisite intent.
involuntary intoxication is a defense when it deprives the D of his ability to distinguish between right and wrong.
Infancy
Must be 13 to be criminal liable
Self Defense
Nondeadly force can be used to defend against another when the actor reasonably believes that it is necessary to defense himself or a third party against an immanent use of unlawful force.
Deadly force can be used to prevent the commission of a forcible felony and is justified beyond that which is necessary to prevent death or great bodily injury.
Battered Person
Evidence that the D had been the victim of family violence of child abuse committed by the victim is allowed to show that a reasonable person would have a reasonable belief that deadly force was necessary.
Defense of Property
May use deadly force when:
- someone enters the home or attempts entry in a violent manner and the person believe the entry is to commit an assault or other violent crime
- deadly force is used against another who is not a member of the household and who unlawfully and forcibly entered the home, and the person using deadly force reasonably believed that an unlawful and forcible entry had been made OR
- the person using deadly force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent commission of the felony.
Entrapment
Exists where the idea and intention to commit a crime originates with law enforcement officials who use undue pressure or deceit to induce the criminal act on the part of the D, who would not have committed the crime except for the officers action and who is not predisposed to commit a crime.
Mistake of Fact
A defense if the crime was induced by a misapprehension of fact that, if true, would have justified the act or omission that constituted the crime.
Good-Faith Exception to the Exclusionary Rule
GA doesn’t recognize the good faith exception as it applies to defective search warrants. the evidence will be excluded even if the police executed the warrant in good faith reliance concerning its validity.
Pen Registers
Must be seized only pursuant to a warrant.
Body Cavity Searches
Surgical removal is reasonable if it is a minor surgery or it cannot be compelled with or without a warrant.
Searches Pursuant to a Warrant
Police may detain or search anyone on premises subject to a search warrant to protect himself from attack or to safeguard the items described in the warrant from disposal or concealment.
Execution of Search Warrant
Must be executed within 10 days
Warrantless Arrests
- reasons under common law
- officer has probable cause that an act of family violence has occurred
- office has probable cause to believe that there has been physical abuse against a vulnerable adult (18 years old and cannot protect himself from abuse because of physical or mental impairment) OR
- where it is likely there will be a failure of justice for want of a judicial officer to issue a warrant
Custody
A suspect is not in custody if he is in a police interrogation room and told he is free to leave at anytime.
Initial Appearance
When a person is arrested on a warrant, he must be brought before a committing judicial officer within 72 hours after arrest. There D must be notified of the date and time of the commitment hearing, if not he must be released.
Grandy Jury
Hears charges within 90 days if bail has been denied. If the case is a death penalty case, the ecourt can grant the state an extension of up to an additional 90 days.
Information
Information is referred to as an accusation. In order to proceed by accusation on felony charges, the D must waive his right to a grand jury presentment.
Preliminary or Probable Cause Hearing
AKA a commitment hearing. At the hearing, there is a determination of whether there is sufficient reason to suspect the D’s guilt and require him to appear and answer to the charges in court. If there is the return of an indictment, there is no need for a commitment hearing.
Discovery by the Defense
The prosecution must give to the defense a copy of the indictment and a list of witnesses prior to arraignment. If a witness is not on that list, and the prosecution cannot make a showing of newly discovered info, the witness will not be permitted to testify. The prosecution must also provide the following at least 10 days before trial:
- any statement by the D in response to law enforcement interrogation
- statements by co-conspirators attributable to the D and arguably admissible against him at trial
- copy of the D’s criminal record AND
- tangible evidence that the prosecution intends to use in its case and the results of any physical or mental exams or scientific tests.
Discovery by the State
Defense must allow the state to inspect and copy the following within 10 days of receiving discovery from the state, but no late than 5 days before trial:
- books, papers, and other tangible things the defense intends to use
- results of physical or mental exams or scientific tests that the defense intends to use
- oral reports, the defense must reduce the relevant parts of the report to writing and serve it on the state.
- alibi witnesses
Sanctions for Failure to Comply with Discovery
Cured by the court by
- ordering the discovery be disclosed
- granting a continuance OR
- if there is bad faith or prejudice the prohibition of using the evidence at trial
- in misdemeanor the remedy is the exclusion at trial
Double Jeopardy
Barred if D was formerly tried and prosecuted in federal court for a crime within the concurrent jurisdiction of GA if the prior prosecution resulted in either a conviction or an acquittal and the later prosecution is for the same conduct. Doesn’t apply if the later prosecution requires proof of a fact not required in the other if the crime was not consumated when the former trial began.
Proof Beyond a Reasonable Doubt
A confession alone without corroborating evidence cannot justify a conviction.
Sentencing
D’s unproven criminal charges can be used during sentencing. However, the state must give timely notice of its intention to do so and describe the unproven charges with enough specificity to alert the D as to what he has to defend against.
Jury’s Role in Death Sentence
If the jury doesn’t recommend death, the judge must sentence D to imprisonment.
