MBE CRIM / CRIM PRO Flashcards by Crystal Ione

A def will be an accessory after the fact if…

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

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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Define accessory before the fact

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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What is compounding a crime?

Receiving valuable consideration to not prosecute

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

Are statements made during a court ordered psych exam protected?

Yes

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

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

Nope none

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The difference btwn transactional immunity and use & derivative use immunity

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

CONVICTION AUTOMATICALLY REVERSED
*for both situations

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

AUTOMATICALLY REVERSED

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

Showing ACTUAL COI

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

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

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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?

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

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

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2 elements to bar evidence of an identification of the Def

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

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

Yes

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

Prosecution chooses btwn harmless error review or automatic reversal

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

NEW TRIAL

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Double jeopardy attaches once ______________ or if bench trial then ________________

Once jury is empaneled or 1st Witness sworn in

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

Yes ✅

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

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

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

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

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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?

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

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

Yes ✅ (DJ inapplicable)

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

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

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

Yep

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

Yes

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

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

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

Yes Ex. Failure for Def to get a speedy trial

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

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

Yes

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

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

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

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

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

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

Yes (otherwise no)

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

Yes, if new sentence can be imposed

Accomplice withdrawal requires (3)

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

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

Yes Ex. Principal granted immunity

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

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

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

Yes

Will the underlying felony merge into felony murder?

Yes (due to DJ)

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

Voluntary manslaughter (since heat of passion)

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

Vol man ***also includes starting the altercation

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

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

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

Someone else is in lawful possession Ex. Bailor Ex. Low level employees

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

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

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

No (insufficient intent)

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

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

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

Yes (sufficient intent)

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

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

Scorching the walls of a house = sufficient for arson?

2 elements for receiving stolen property

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

What is subordination of perjury?

When one convinced another to commit perjury

Does bribery require a public official?

CL- yes Modern- no

Solicitation renunciation CL vs modern

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

Conspiracy - overt act- CL vs MPC

MPC- Overt act in furtherance nec CL- none

Kidnapping is (3)

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

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

In person and post charge

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

Yes

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

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

Conviction overturned on appeal- retrial okay?

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)

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

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

May police lie about having a warrant?

No (no consent)

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

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

Excessive bail / refusal for bail = immediately appealable?

Yes ✅

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

Automatic reversal or harmless error

May a death sentence be imposed for felony murder?

No (unless accomplice significantly participated with reckless disregard)

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

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

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

Yes ✅

Define SILA

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)

Define arson

The malicious burning of the dwelling of another

prosecution may introduce a voluntary confession after an unlawful arrest if

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