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UBE Priority > MBE CRIM / CRIM PRO > Flashcards

MBE CRIM / CRIM PRO Flashcards

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MBE flashcards
1
Q

A def will be an accessory after the fact if…

A

A def will be an accessory after the fact if 1. she knows the person committed a felony
2. and helps them avoid arrest or conviction (remember that in a maj jxs, Def may be guilty even if other person wasn’t)

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2
Q

A person will be an accomplice if.. (3)

A

A person will be an accomplice if
1. she is present at the crime
2. and aids or encourages the crime
3. with the intent the crime be committed

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3
Q

Define accessory before the fact

A

A person will be an accessory before the fact if they are not present at the scene of the crime but still aids or encourages the crime w/ the intent the crime be committed

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4
Q

What is compounding a crime?

A

Receiving valuable consideration to not prosecute

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5
Q

Is a diary considered testimonial / protected by right against self-incrim?

Are statements made during a court ordered psych exam protected?

A

Yes

Yes (it’s involuntary- patient must be given Miranda beforehand)

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6
Q

When may a witness refuse to testify by raising the 5th A?

A

In response to a specific Q if there is a rsb probability of incrim
***be careful- may prevent the Def’s right to confrontation if cross examination avoided

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7
Q

After granting immunity, May prosecution use incriminating testimony at a SUBSEQUENT trial?
Indirectly or directly?
May the immunized testimony be used in a different jx?

A

Nope none

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8
Q

The difference btwn transactional immunity and use & derivative use immunity

A

Transactional- FULL PROTECTION from ANY future prosecution RELATED to testimony
Use & Derivative- the W’s testimony itself (and any evi derived from it! may not be used against the W
***^^^ Con. MIN & what Pros wants!

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9
Q

Remedy for a Def who’s right to counsel was denied?
What if he could not show unfairness?

A

CONVICTION AUTOMATICALLY REVERSED
*for both situations

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10
Q

Def’s remedy when the court refuses to allow him to choose his own aty?

A

AUTOMATICALLY REVERSED

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11
Q

Overturning a conviction on grounds of Aty’s conflict of interest requires _______________?

A

Showing ACTUAL COI

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12
Q

Prelim hearing for PC held (detained) for more than 48 hours later:
Presumption?
Remedy?

A

Presumed unrsb
Remedy- will BAR EVI discovered as a result of unlawful detainment

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13
Q

Right to counsel-
1 Prelim hearing to determine PC?
2. Prelim hearing to determine PC for a specific crime?
3. Grand Jury indictment?
4. Post arrest initial appearance?
5. Arraignment?
6. Parole/probation hearing?
7. Appeals (discretionary) ?
8. In-person identifications?
9. Bail hearing?
10. Sentencing?

A
  1. No
  2. Yes
  3. No
  4. Yes
  5. Yes
  6. No
  7. No
  8. Yes
  9. Yes
  10. Yes
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14
Q

2 elements for ineffective assistance of counsel due to lack of communicating a plea offer

A
  1. Def must show rsb probability that both Prosecution & Defense would’ve accepted the plea
  2. And the court would have accepted the plea in light of discretion
    ***fairness of trial and conviction = irrelevant
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15
Q

2 elements to bar evidence of an identification of the Def

A
  1. POLICE (only) were impermissible suggestive (witness okay)
  2. And substantial likelihood of mis-ID
    **Prosecution may refute this by showing it was nevertheless reliable
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16
Q

Def can only show potential bias in a juror. Standing to challenge?

A

Yes

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17
Q

Remedy if Judge (even with GF) erroneously denies Def’s peremptory challenge?

A

Prosecution chooses btwn harmless error review or automatic reversal

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18
Q

Remedy if Prosecution fails to disclosure exculpatory or impeachment evidence (that’s material)?

A

NEW TRIAL

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19
Q

Double jeopardy attaches once ______________ or if bench trial then ________________

A

Once jury is empaneled or 1st Witness sworn in

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20
Q

Will double jeopardy apply if there is a second prosecution (for the same offense) after acquittal?

A

Yes ✅

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21
Q

Will double jeopardy apply if there is a Demurrer / MTD (for the same offense) in Def’s favor after acquittal?

A

Yes ✅ (b/c the MTD acts as an acquittal)

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22
Q

Will double jeopardy apply after the judge declares in open court that there will be no finding of guilt (for the same offense)?

A

No (b/c a Declaration is not a verdict)

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23
Q

Will double jeopardy apply (and thus no retrial allowed) if there is a second prosecution (for the same offense) after an acquittal based merely on an error of law?

A

Yes ✅ (STILL an acquittal for DJ purposes) = no retrial

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24
Q

Re: DJ…
Can the state still bring administrative proceedings after a criminal prosecution for the same offense?

A

Yes ✅ (DJ inapplicable)

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25
Q

For DJ purposes, when may a civil penalty be treated as criminal punishment?

A

If the penalty amount is GROSSLY DISPROPORTIONATE to govt loss & serves only to deter
DNI civil forfeiture

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26
Q

Retrial okay after hung jury?
What death/illness of a juror/judge?

A

Yep

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27
Q

Retrial allowed after prosecution granted mistrial due to disappearance of a key witness?

A

Yes

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28
Q

Retrial okay if defendant asks for or consents to a mistrial?

A

Yes then retrial okay (unless Def’s request is based on prosecution’s bad faith conduct or judicial coercion, etc)

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29
Q

Retrial okay if Def’s acquittal is based on reasoning OTHER than guilt/innocence?

A

Yes
Ex. Failure for Def to get a speedy trial

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30
Q

Retrial okay after reversal of conviction due to insufficiency of the Evi? (No rational fact finder would have found guilty/not guilty)

A

No

31
Q

Retrial okay after conviction overturned due to weight of the evidence?

A

Yes

32
Q

Retrial okay for lesser crime with same elements after original conviction was reversed?

A

No

33
Q

When will it not be allowed to impose a greater sentence for a reconviction after appeal/retrial?

A

When the greater sentence acts as a penalty for Def exercising his right to appeal/seek remedy

34
Q

Retrial allowed if prosecution failed to show aggravating factor to justify death penalty

A

No

35
Q

Retrial that imposes death penalty allowed after the jury only imposed life sentence?

A

No

36
Q

Will the Def have a right to counsel upon APPEAL for a GUILTY PLEA / nolo

A

Yes (otherwise no)

37
Q

Right to counsel imposed after parole is revoked? Y/N IF ______________

A

Yes, if new sentence can be imposed

38
Q

Accomplice withdrawal requires (3)

A
  1. Repudiating prior aid
  2. Doing all that’s possible to countermand prior aid
  3. And doing so before the criminal chain of events are in motion
39
Q

Can an accomplice be convicted even if the principal is not?

A

Yes
Ex. Principal granted immunity

40
Q

What will this defendant be charged with after giving false into the the police to prevent apprehension of a principal?

A

Accessory after the fact
(Since was not present at the scene)

41
Q

May a defendant charged with felony murder claim duress as a defense to the underlying felony to avoid conviction of felony murder?

A

Yes

42
Q

Will the underlying felony merge into felony murder?

A

Yes (due to DJ)

43
Q

What crime will Def be convicted of if he killed someone while being falsely arrested?

A

Voluntary manslaughter (since heat of passion)

44
Q

What crime will def be convicted of if he honestly but unreasonably believed deadly force was necessary for self defense?

A

Vol man
***also includes starting the altercation

45
Q

What type of homicide will Def be convicted of while acting criminally negligent?

A

Invol man
Ex. Failure of a parent to provide medical care to sick child

46
Q

When is the only time a lawful owner can commit larceny?

A

Someone else is in lawful possession

Ex. Bailor
Ex. Low level employees

47
Q

Is there larceny if there is property enclosed in a lawfully possessed envelop / container?

A

No, if there was an intended transfer of the envelop/container

48
Q

Will there be larceny if a defendant borrowed $ w/o permission even if he has an ability to pay it back?

A

No (insufficient intent)

49
Q

Will there be larceny for a defendant who refused to return property without obtaining a reward?

A

Yes (but be careful- simply intending to return property in expectation of a reward is not larceny)

50
Q

Will there be larceny for a defendant who merely created a SUBSTANTIAL RISK of loss?

A

Yes (sufficient intent)

51
Q

Obtaining property using opinions / future predictions = sufficient for larceny by trick?

A

No (need false representations of material past or present fact)

52
Q

Scorching the walls of a house = sufficient for arson?

A

No

53
Q

2 elements for receiving stolen property

A
  1. Def had knowledge that the property was stollen AT THE TIME RECEIVED
  2. Def had an intent to permanently deprive the owner
54
Q

What is subordination of perjury?

A

When one convinced another to commit perjury

55
Q

Does bribery require a public official?

A

CL- yes
Modern- no

56
Q

Solicitation renunciation CL vs modern

A

CL- none
Modern- renunciation may be a defense if commission of the crime is thwarted

57
Q

Conspiracy - overt act- CL vs MPC

A

MPC- Overt act in furtherance nec
CL- none

58
Q

Kidnapping is (3)

A

The unlawful confinement of a person against their will coupled with either movement or hiding of that person 

59
Q

When will a person have a right to counsel for a lineup? (2)

A

In person and post charge

60
Q

Will there be a violation if police proceed with an in person lineup in good faith after Def’s aty doesn’t show up due to his own negligence

A

Yes

61
Q

What are the two remedies when a post-charge, in-person lineup occurs without counsel present?

A
  1. Identification is inadmissible at trial;
  2. Witness will be prohibited from making a subsequent in-court identification of D unless the prosecution can prove that the witness has an independent source of identification
62
Q

Conviction overturned on appeal- retrial okay?

A

Generally yes (unless reversal was due to insufficiency of evi or the retrial would be on the greater offense after Def convicted of lesser offense)

63
Q

Standard to challenge a false statement in an warrant affidavit (2)

A

Preponderance that the affidavit contains a false statement (knowingly/recklessly) AND that it was used to find PC

64
Q

May police lie about having a warrant?

A

No (no consent)

65
Q

3 considerations when determining if “special needs testing” is okay (ex. Drug tests at work or school)

A

Actual state issue is at hand
Will search effectuate that issue
Consider privacy

66
Q

Excessive bail / refusal for bail = immediately appealable?

A

Yes ✅

67
Q

Judge acting in good faith erroneously denies peremptory challenge. Two possibilities for remedy are?

A

Automatic reversal or harmless error

68
Q

May a death sentence be imposed for felony murder?

A

No
(unless accomplice significantly participated with reckless disregard)

69
Q

Difference btwn the 5th A right to counsel and 6th A right to counsel

A

5th- applies to pretrial interrogation without Miranda
6th- automatic upon critical states after charges attach

70
Q

Does a college student have a rsb expectation of privacy in a dorm room against wiretapping?

A

Yes ✅

71
Q

Define SILA

A

Incident to a lawful arrest, police may search the PERSON & AREAS that could be reached to obtain weapons or destroy evi
**so finding a bag in a pocket after a DUI = no violation (since it’s on their person)

72
Q

Define arson

A

The malicious burning of the dwelling of another

73
Q

prosecution may introduce a voluntary confession after an unlawful arrest if

A

If truly voluntary

*and court may consider it as a factor to suppress if TOO CLOSELY TIED with the unlawful arrest

UBE Priority (10 decks)

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