GA Criminal Law & Procedure

Question 1

Year and a Day Rule

Answer 1

No followed in GA

Question 2

Felony Murder

Answer 2

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.

Question 3

Second Degree Murder

Answer 3

Occurs when, in the commission of cruelty to children in the second degree, the D causes death of another human being irrespective of malice.

Question 4

Voluntary Manslaughter

Answer 4

Applies unless the cooling off period is sufficient time for the voice of reason and humanity to be heard

Question 5

Involuntary Manslaughter

Answer 5

To cause death while committing a lawful act in an unlawful way that is likely to cause death or great bodily harm.

Question 6

Misdemeanor-Manslaughter Rule

Answer 6

When one causes death without intending to do so by the commission of an unlawful act other than a felony, it is involuntary manslaughter.

Question 7

Battery

Answer 7

1. intentionally making physical contact of an insulting or provoking nature with the person of another OR
2. intentionally causing physical harm to another

Question 8

Family Violence Batter

Answer 8

Committed upon

1. past or present spouses
2. parents of the same child
3. foster parents or foster children OR
4. persons currently or formally living in the same household

Question 9

Aggravated Battery

Answer 9

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.

Question 10

Assault

Answer 10

1. an attempt to commit a violent injury to the person of another OR
2. an act that puts another in reasonable apprehension of immediately receiving a violent injury.

Question 11

Aggravated Assault

Answer 11

1. 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
2. discharging a firearm from a motor vehicle at a person

Question 12

Mayhem

Answer 12

A form of aggravated battery when someone causes malicious bodily harm to another by

1. depriving him of a bodily member
2. rendering a bodily member useless OR
3. seriously disfiguring the victim’s body or a bodily member

Question 13

Kidnapping

Answer 13

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.

Question 14

Rape

Answer 14

1. carnal knowledge of a female forcibly and against her will
2. carnal knowledge with a female who is less than 10 years old

Question 15

Incest

Answer 15

Sexual intercourse with someone he knows he is related to by blood or marriage

Question 16

Theft by Taking

Answer 16

Unlawful taking or appropriation of property with the intention of depriving the owner of the property. Deprive means

1. the withholding of the property of another, either permanently or temporarily OR
2. disposing of the property so it is unlikely that the owner will recover it

Question 17

Theft by Deception

Answer 17

Obtaining of property by 1. deceitful means OR 2. artful practice with the intention of depriving the owner of the property.

Question 18

Theft by Conversion

Answer 18

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

Question 19

Lost or Mislaid Property

Answer 19

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.

Question 20

Claim of Right

Answer 20

Defense to theft allowed when

1. D was unaware that the property or service was that of another
2. D acted under an honest claim of right to the property or service or a right to acquire or dispose of the property OR
3. D took property or a service expose for sale intending to purchase and pay promptly or reasonably believed that the owner would have consented

Question 21

Penalties of Theft

Answer 21

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

Question 22

Robbery

Answer 22

Fear must be a fear of immediate serious bodily injury to himself or another and includes sudden snatchings.

Question 23

Aggravated Robbery

Answer 23

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.

Question 24

Bad Checks

Answer 24

Prima facie evidence that the accused knew the instrument would not be honored if:

1. the account had no account with the institution at the time the instrument was made OR
2. 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

Question 25

First Degree Forgery

Answer 25

1. writing must be uttered or delivered
2. knowingly make, alter, or possess any writing
3. 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.

Question 26

Second Degree Forgery

Answer 26

1. knowingly make, alter, or possess any writing
2. 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.

Question 27

Burglary

Answer 27

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)

Question 28

First Degree Arson

Answer 28

By fire or explosive, a person knowingly damages or causes, aids, advises, or procures another to damage

1. a dwelling of another
2. a building used as a dwelling
3. a dwelling or other structure that is insured against fire
4. dwelling or other structure with intent to defraud the rights of a spouse or co-owner
5. building where danger to human life is reasonably foreseeable

Question 29

Second Degree Arson

Answer 29

D knowingly causes, aids, advises, or procures another to damage, any building, vehicle, railroad car, watercraft, aircraft, or other structure.

Question 30

Third Degree Arson

Answer 30

D knowingly causes, aids, advises, or procures another to damage personal property worth at least $25 if

1. the property is insured OR
2. done with the intent to defeat or defraud the rights of a spouse or co-owner

Question 31

Solicitation

Answer 31

Target offense must be a felony

Question 32

Attempt

Answer 32

Requires substantial step toward the commission of the crime.

Question 33

Legal Impossibility

Answer 33

Not a defense to attempt if the crime could have been committed had the circumstances been as the D believed them to be.

Question 34

Conspiracy

Answer 34

D cannot be convicted of both conspiracy and the completed crime. Conspiracy merges with any attempt to commit the crime.

Question 35

Insanity

Answer 35

M’Naghten Rule:

1. when D didn’t have the mental capacity to distinguish between right and wrong in relation to the offense committed OR
2. 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.

Question 36

Intoxication

Answer 36

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.

Question 37

Infancy

Answer 37

Must be 13 to be criminal liable

Question 38

Self Defense

Answer 38

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.

Question 39

Battered Person

Answer 39

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.

Question 40

Defense of Property

Answer 40

May use deadly force when:

1. 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
2. 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
3. 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.

Question 41

Entrapment

Answer 41

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.

Question 42

Mistake of Fact

Answer 42

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.

Question 43

Good-Faith Exception to the Exclusionary Rule

Answer 43

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.

Question 44

Pen Registers

Answer 44

Must be seized only pursuant to a warrant.

Question 45

Body Cavity Searches

Answer 45

Surgical removal is reasonable if it is a minor surgery or it cannot be compelled with or without a warrant.

Question 46

Searches Pursuant to a Warrant

Answer 46

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.

Question 47

Execution of Search Warrant

Answer 47

Must be executed within 10 days

Question 48

Warrantless Arrests

Answer 48

1. reasons under common law
2. officer has probable cause that an act of family violence has occurred
3. 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
4. where it is likely there will be a failure of justice for want of a judicial officer to issue a warrant

Question 49

Custody

Answer 49

A suspect is not in custody if he is in a police interrogation room and told he is free to leave at anytime.

Question 50

Initial Appearance

Answer 50

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.

Question 51

Grandy Jury

Answer 51

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.

Question 52

Information

Answer 52

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.

Question 53

Preliminary or Probable Cause Hearing

Answer 53

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.

Question 54

Discovery by the Defense

Answer 54

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:

1. any statement by the D in response to law enforcement interrogation
2. statements by co-conspirators attributable to the D and arguably admissible against him at trial
3. copy of the D’s criminal record AND
4. tangible evidence that the prosecution intends to use in its case and the results of any physical or mental exams or scientific tests.

Question 55

Discovery by the State

Answer 55

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:

1. books, papers, and other tangible things the defense intends to use
2. results of physical or mental exams or scientific tests that the defense intends to use
3. oral reports, the defense must reduce the relevant parts of the report to writing and serve it on the state.
4. alibi witnesses

Question 56

Sanctions for Failure to Comply with Discovery

Answer 56

Cured by the court by

1. ordering the discovery be disclosed
2. granting a continuance OR
3. if there is bad faith or prejudice the prohibition of using the evidence at trial
4. in misdemeanor the remedy is the exclusion at trial

Question 57

Double Jeopardy

Answer 57

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.

Question 58

Proof Beyond a Reasonable Doubt

Answer 58

A confession alone without corroborating evidence cannot justify a conviction.

Question 59

Sentencing

Answer 59

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.

Question 60

Jury’s Role in Death Sentence

Answer 60

If the jury doesn’t recommend death, the judge must sentence D to imprisonment.