MBE Criminal Law and Procedure Flashcards

Question 1

Q

Actus Reus

Answer

A

Generally, the actus reus must be a voluntary, physical act^{ i.e. a bodily movement. Thoughts do not suffice.}

^{Examples of INVOLUNTARY, NON Actus Reus:}

^{1. Movement caused by another,}
^{2. Reflexive or convulsive acts,}
^{3. Acts performed while D was unconscious or asleep.}

Question 2

Q

Actus Reus: Omission as Criminal Acts

Answer

A

Omissions are generally NOT Acts

EXCEPTION if D had all three of these elements:

Legal duty to act, created by:
- _{statute ^{(e.g. duty to file income tax return)}}
- _{Contract ^{(e.g. lifeguard or nurse)}}
- _{Special relationship to victim ^{(e.g. parent or spouse, duty to prevent harm, but no duty for other relatives)}}
- _{Voluntary assumption of care, creates duty of reasonable care}
- _{Creation of peril by D (some jurisdictions)}
- _{Landowner liability (some jurisdictions)}
- _{Duty to control (some jurisdictions)}
Knowledge of facts giving rise to duty ^{(may be known or should have known as with lifeguard asleep at post and unaware someone is drowning)}
Reasonably possible to perform ^{(e.g. parent unable to swim is under no duty to rescue drowning child).}

Question 3

Q

Mens Rea: Specific Intent, Purposefully

Answer

A

For specific intent crimes, D must have a specific intent or objective to commit the given crime.

Mens Rea: Specific Intent, Purposefully

Specific intent must always be proven, never inferred.
Mistake of fact and voluntary intoxication are available defenses.

Question 4

Q

Mens Rea: Specific Intent, Knowingly

Answer

A

For specific intent crimes, D must have a specific intent or objective to commit the given crime.

Mens Rea: Specific Intent, KNOWINGLY

Specific intent must always be proven, never inferred.
Mistake of fact and voluntary intoxication are available defenses.

Question 5

Q

Mens Rea: Specific Intent, Purposefully

Answer

A

For specific intent crimes, D must have a specific intent or objective to commit the given crime.

Mens Rea: Specific Intent, Purposefully

Specific intent must always be proven, never inferred.
Mistake of fact and voluntary intoxication are available defenses.

Question 6

Q

Mens Rea: General Intent

Answer

A

D need only be aware that she was committing a crime.

Intent may be inferred from the doing of the act.

Actual intent to commit the act is not required, merely creating a high risk that the act would occur is sufficient.

^{E.g., with rape, the act is intercourse without the woman’s consent.}^{D need not have known the woman did not consent, he may merely have taken an unjustifiably high risk that she had not given her consent.}

Question 7

Q

Mens Rea: Malice Generally

Answer

A

D acts with reckless disregard OR undertakes an _obv_ious risk, from which a harmful result is expected.

Malice crimes include arson and common law murder.

Question 8

Q

Mens Rea: Strict Liability Crimes

Answer

A

No mens rea requirement for strict liability crimes. ^{No intent or awareness is required.}

Usually arises with administrative, regulatory or morality crimes.

Question 9

Q

Model Penal Code (MPC) Mens Rea

Answer

A

MPC Mens Rea Distinctions:

_{if a state of mind is part of the offense, it must apply to all elements of the offense.}
_{if no state of mind is given, then recklessness - as established minimum - is required for each material element of the offense.}
_{Eliminates malice ^anddifference between general and specific intent}

Four levels of culpability for all crimes under MPC:

Purposely _^highest: D’s conscious objective = cause the result;
Knowingly: D knows conduct is likely to cause the result^{(also covers “willful”)}
Recklessly: D consciously disregards a substantial or unjustifiable risk ^{_{which constitutes}} a gross deviation from the standard of reasonable care. ^{(Also covers “wanton.” D must take an unjustifiable risk, and know of and consciously disregard that risk)}
Negligently ^_lowest : when D fails to be aware of a substantial and unjustifiable risk that the result will follow _{^{which constitutes}}a substantial deviation from reasonable care.
- ^{Violation of an ordinance, e.g. a speed limit, may be evidence of negligence.}

Question 10

Q

Concurrence Requirement

Answer

A

D’s criminal act must occur concurrently with the requisite mens rea for the crime ^{_{(i.e. mens rea and acts reus must exist simultaneously)} }

^{E.g. Defendant plans on murdering Victim at her home, Defendant is not guilty of murder if he accidentally runs over Victim with his car before reaching her house}

Question 11

Q

Causation Requirement

Answer

A

Ds conduct must be both the cause-in-fact and the proximate cause of the crime committed.

Cause-in-fact:“But for” Ds conduct, the result would not have occurred.

^{For homicide and manslaughter, any act by D that hastens Victim’s death is a cause-in-fact, even if death is already inevitable}

Proximate Cause: The actual result is the natural and probable consequence of Defendant’s conduct, even if it did not occur exactly as expected.

Superseding factors will breach the chain of causation.
Intervening acts must be entirely unforeseeable to shield the D from liability ^{(e.g. Victim’s refusal of medical treatment, 3P medical negligence, both are foreseeable and Defendant is liable)}

Question 12

Q

Specific Intent Crimes

Answer

A

Solicitation: ^{Intent to have the person solicited commit the crime}

Attempt: ^{Intent to complete the crime}

Conspiracy: ^{Intent to have the crime completed}

First degree premeditated murder (by statute): ^{Premeditated, deliberate intent to kill}

Assault: ^{Intent to commit a battery}

Larceny and Robbery:^{Intent to permanently deprive another of his interest in the property taken}

Burglary:^{Intent at the time of entry to commit a felony in the dwelling of another}

Forgery:^{Intent to defraud}

False pretenses:^{Intent to defraud}

Embezzlement: ^{Intent to defraud}

Question 13

Q

General Intent Crimes

Answer

A

Battery
Rape
Kidnapping
False Imprisonment

Question 14

Q

Malice Crimes and Malice Generally

Answer

A

Common Law Murder (malice aforethought)
Arson Malice is the intent required for common law murder and arson.

_____

_{Malice is not a specific intent.}

_{The defenses of voluntary intoxication and unreasonable mistake are not available for these crimes.}

_{To show malice, the P need only show that D recklessly disregarded an obvious or high risk that the harmful result would occur.}

Question 15

Q

Strict Liability Crimes

Answer

A

Statutory Rape
Regulatory Crimes
Administrative Crimes
Morality Crimes (e.g. bigamy, polygamy)

_{_________________}

_{Strict liability offenses remove the requirement that D be aware of all factors constituting the crime.}

_{Certain defenses, such as mistake of fact, are not available for strict liability offenses.}

Question 16

Q

Transferred Intent Doctrine

Answer

A

D intends the harm caused, but instead harms a different victim or object^{Often applies to homicide, battery, and arson.}

Does NOT apply to attempt
Defenses and mitigating circumstances may also be transferred

Effect of the Transferred Intent Doctrine: A Defendant is usually charged with 2 crimes:

1) Attempt ^{(to commit the originally intended crime)}
2) The actual resulting crime
_{^{E.g. D intends to shoot A, but kills B; D can be charged with the attempted murder of A and the actual murder of B}. ^{NOTE: Merger does not apply because there are different victims}}

Question 17

Q

INCHOATE OFFENSES - Offenses

Question 18

Q

INCHOATE OFFENSES

Generally and Merger Opportunity

Answer

A

Inchoate offenses are ^{_{complete offenses in themselves,}}committed prior to and in preparation for the target offense.

Attempt and Solicitation generally merge with the target offense, thus one may not be convicted of either attempt or solicitation and the target offense.

^{Attempt & Solicitation >}^{MERGE into Single Crime}^{< Target Crime}

Conspiracy does not merge, so one may be convicted of conspiracy and the target offense.

^{Conspiracy >}^{X Does not Merge}^{< Target Crime}

Question 19

Q

Inchoate Offense: Solicitation

Answer

A

Inciting, counseling, advising, inducing, urging, or commanding another | to commit a felony | with the specific intent** | that **solicitee commit** the **crime.

Solicitation Complete ⇒ once the request is made.
DOES NOT MATTER if Solicitee:
- Is convicted
- The solicited felony was impossible to commit
- Agreed or disagreed to undertake felony
- Responded at all to the solicitation
- ^{Note: if the person solicited completed the crime, the solicitor would be liable for the crime as an accomplice. If the person solicited attempted the crime, the solicitor would be liable for the attempt as an accomplice.}

DEFENSES: _{^{Very few defenses apply to Solicitation}}

^{Refusal by the solicitee is NOT a defense}
^{Impossibility and Withdrawal are NOT defenses }
MPC allows renunciation as a defense, but CL does not (most jx follow CL)

Question 20

Q

Inchoate Offense: Conspiracy

Answer

A

Elements of conspiracy:

Agreement in actuality
between two or more persons;
Intent to:
- enter into that agreement;
- achieve the criminal objective of that agreement

_______________________

No merger for conspiracy:

Common law merger has been abolished for conspiracy:
One may be convicted of the crime and conspiracy to commit the crime.

Question 21

Q

Inchoate Offense: Conspiracy

Mens Rea

Answer

A

Elements of conspiracy:

Agreement in actuality
between two or more persons;
Intent to:
- enter into that agreement;
- achieve the criminal objective of that agreement

_______________________

No merger for conspiracy:

Common law merger has been abolished for conspiracy:
One may be convicted of the crime and conspiracy to commit the crime.

Question 22

Q

Inchoate Offense: Conspiracy

Overall Scope + Co-Conspirator Liability + Timeframe

Answer

A

Each conspirator is liable for co-conspirator’s crimes that are

foreseeable AND committed in furtherance of the conspiracy

_\_

Withdrawal: Withdrawal is effective when the withdrawing party makes an AFFIRMATIVE ACT that notifies his co-conspirators he is withdrawing.

CANNOT withdrawal from the conspiracy itself.
CAN withdraw from the co-conspirator’s SUBSEQUENT crimes, including the target offense of the conspiracy

Question 23

Q

Inchoate Offense: Conspiracy

Defenses - Co-Conspirator Liability and Withdrawal

Answer

A

Each conspirator is liable for co-conspirator’s crimes that are

foreseeable AND committed in furtherance of the conspiracy

_____________________

Acquittal of Co-Conspirators

^{Co-Conspirators}Acquitted = NO party can be convicted of the conspiracy.
^{Co-Conspirators} Have NOT been Found Guilty or Charged = Can be Convicted

_________________________\_

Withdrawal: Withdrawal is effective when the withdrawing party makes an AFFIRMATIVE ACT that notifies his co-conspirators he is withdrawing.

CANNOT withdrawal from the conspiracy itself.
CAN withdraw from the co-conspirator’s SUBSEQUENT crimes, including the target offense of the conspiracy

Question 24

Q

Inchoate Offense: Attempt

Elements and Defense

Answer

A

Attempt is an act that is performed with the intention of completing a crime, but falls short.

Elements:

Specific intent >> to complete the crime
and
Overt act in furtherance of that intent.

_____________________

Attempt always requires specific intent.^{For instance, attempted murder requires intent to kill, although murder itself allows several other intents.}

^{_____________________________}

Defenses:

LEGAL impossibility^{(not actually a crime)} IS a defense
FACTUAL impossibility ^{(cannot commit crime)}is NOT a defense

Question 25

Q

Accomplice Liability

Answer

A

AIDES, ENCOURAGES, or COUNSELS principals committing a crime, with the intent to encourage its commission.

Mere presence at the crimes not enough; there must be some assistance

__________________________________

An accomplice is liable for

original crime
and*
other foreseeable crimes

committed by the principals in its furtherance

Question 26

Q

Capacity Defense: Insanity (Define 3 Approaches)

Answer

A

Insanity is a defense to ALL crimes, regardless of the intent requirement.

M’Naghten:^{D does not know right from wrong.}

Due to mental disease or defect AT THE TIME of the offense D lacked the ability to know the wrongfulness of his conduct or understand the nature and quality of his act

Irresistible Impulse: ^{D acted due to an irresistible impulse.}

Due to a mental illness D was unable to CONTROL his actions or conform his conduct to the law

MPC: ^{Combines the M’Naghten and Irresistible Impulse tests.}

As a result of Ds mental disease, D lacked the capacity to either
- appreciate the criminality of his conduct or
- conform his conduct to requirements of the law

Question 27

Q

Capacity Defense: Infancy

Answer

A

Common Law: Three presumptions regarding D’s age at the time of commission of the crime:

Under seven: no criminal liability
Under fourteen: rebuttable presumption of no criminal liability
Over fourteen: adult

Question 28

Q

Capacity Defense: Diminished Capacity

Answer

A

Diminished capacity is a defense based on Defendant’s MENTAL DEFECT.

It is available if the D can show that he has some mental defect short of insanity that prevented him from forming the mental state required for the crime

Usually limited to Specific Intent Crimes

Question 29

Q

Capacity Defense: Voluntary Intoxication

Answer

A

Voluntary Intoxication is only used for specific intent crimes, where the intoxication negates the specific mens rea required.

Intoxication may be caused by any substance.

Evidence of intoxication may be raised whenever the intoxication negates the existence of an element of the crime.

Question 30

Q

Capacity Defense: Involuntary Intoxication

Answer

A

Involuntary Intoxication exists if D took an intoxicating substance without

knowledge of its nature,
under duress, or
pursuant to medical advice while unaware of the intoxicating effect.

A person may be said to be involuntarily intoxicated when his intoxication is the result of an unpredictable and grossly excessive reaction to an intoxicating substance.

Involuntary intoxication is treated as a mental illness, and the jurisdiction will apply whichever test it uses for insanity.

NOTE: Long-term drug use may create “fixed” brain damage, in which case the insanity defense may be used.

Question 31

Q

Due Process and Defendant’s Mental Condition DURING TRIAL

Answer

A

Due Process Clause prohibits a D from being tried, convicted, or sentenced if, as a result of his mental disease or defect, D is unable to either:

Understand the nature of the proceeding brought against him,

OR

Assist his lawyer in the preparation of his defense

Question 32

Q

Capital Punishment and Defendant’s Mental State

Answer

A

A Defendant cannot be executed if he is

incapable of understanding the

nature and purpose >>>> of the punishment

at the time of execution

Question 33

Q

Justification Defense: Self-Defense Deadly and Non Deadly Force

Answer

A

Self-defense may be used in response to imminent threats of unlawful force.

______________________

NDF: D may use non-deadly force if he:

Is not at fault ^i.e. ^{not the initial aggressor}

AND

Reasonably believes it necessary to protect himself from imminent unlawful force
No duty to retreat

NOTE: The amount of force permitted depends on the nature of the provoking offense; generally, it must be proportionate

____________________________

DF: D may use deadly force if he:

Is not at fault;

AND

Reasonably believes he is confronted with unlawful force that threatens imminent death or great bodily harm
No duty to retreat

Question 34

Q

Justification Defense: Use of Force to Effectuate Arrest and Crime Prevention Deadly and Non Deadly Force

Police to Effectuate Arrest

Citizen to Effectuate Arrest

Crime Prevention

Answer

A

Police Use of Force to Effectuate Arrest

NDF is permissible to reasonably effectuate an arrest

DF is permissible to

prevent the escape
of a fleeing felon
who poses a threat of death or serious bodily harm

____________________

Citizen Use of Force to Effectuate Arrest

NDF

crime was actually committed and
theres is reasonable belief that the person arrested was the perpetrator

DF

to prevent escape of a person
who actually committed a felony and
threatens human life

__________________

Crime Prevention

NDF is permissible to prevent

a serious breach of the peace

DF is permissible to terminate or prevent

dangerous felony
involving a serious risk of human life

Question 35

Q

Justification Defense:

Defense of Dwelling or Other Property

Deadly and Non Deadly Force

Answer

A

Defense of Dwelling

NDF is allowed to prevent or terminate an unlawful entry to attack on one’s dwelling

DF MAY be used if the person reasonably believes:

Force is necessary to prevent attack on oneself or others by a person who made an attempted violent entry;

OR

Force is necessary to prevent entry by a person who intends to commit a felony in the dwelling

______________\_

Defense of Property Non-Dwelling

DF = NOT allowed

NDF MAY be used if

reasonably necessary to defend against
- unlawful interference with possessions or
- trespass on property

Question 36

Q

Misc Defense: Necessity

Answer

A

Necessity is a valid defense if:

D believed his conduct was reasonably necessary to avoid an imminent and greater injury to society.

This is an objective test, Ds commission of the crime must be reasonably necessary; good faith alone is insufficient.

EXCEPTIONS:

Necessity is NOT available if:

The crime committed results in death of another, OR
D caused the events giving rise to the necessity

Question 37

Q

Misc Defense: Duress

Answer

A

Duress is valid defense if

D committed the crime under
reasonable belief that the crime was
necessary to prevent >>> death or serious bodily harm
to Defendant or member of Defendant’s family

^{E.g. Someone points a gun at D and threatens to kill him if he does not rob a bank}

EXCEPTION: Duress is NOT a defense to homicide crimes

Question 38

Q

Misc Defense: Consent

Answer

A

Consent of a Victim >> Generally NOT a defense

Consent of a Victim >> MAY be available if it negates an element of the offense (intent)

Consent is NEVER available for certain offenses (e.g. statutory rape)

In order to for consent to apply it must be established that:

Consent was voluntarily and freely given
Party was legally capable of consenting; AND
No fraud was involved in obtaining consent

Question 39

Q

Misc Defense: Entrapment

Answer

A

Entrapment is an available defense to criminal liability if a law enforcement agent has induced Defendant to commit a crime.

ELEMENTS:

Criminal design (idea or plan for the crime) originated with LAW ENFORCEMENT
AND
D was not otherwise PREDISPOSED to commit the crime prior to his contact with law enforcement

___________________

Law enforcement providing opportunity for a person to commit a crime is not, by itself entrapment.

^{E.g. Undercover officer buying drugs from dealer; officer merely provided opportunity for Defendant to make a sale}

NOTE: A very narrow defense; rarely effective because it is negated by any predisposition on Defendant’s part.

Question 40

Q

Misc Defense: Mistake of Law

Answer

A

NOT A DEFENSE

EXCEPTIONS: Very rare

Reasonable reliance on an invalid statute

The crime itself requires knowledge of the law

Question 41

Q

Misc Defense: Mistake of Fact

Answer

A

A mistake of FACT is an available defense ONLY if it negates a requisite intent element (i.e. mens rea) for the crime

Specific Intent Crimes: Any mistake of fact is a defense

Malice or General Intent Crimes: Only reasonable mistake of fact is a defense

Strict Liability Crimes: Never a defense

NOTE: Mistake includes IGNORANCE

Question 42

Q

Crimes Against Person: Assault

Answer

A

CrimesAgainstPerson:Assault: There are two theories of assault under CL:

Assault as a THREAT = General Intent crime.
- This is the intentional creation
- of a Victim’s reasonable apprehension
- of imminent bodily harm.
- Words alone are usually insufficient
Assault as an attempted BATTERY = Specific Intent crime.

NOTE: May have an “aggravated” counterpart which usually arises when carried out with the use of a weapon

Question 43

Q

Crimes Against Person: Battery

Answer

A

Battery is an

unlawful application of force

to the person of another

resulting in bodily injury or offensive touching.

Battery is a general intent crime

NOTE: May have an “aggravated” counterpart which usually arises when carried out with the use of a weapon

Question 44

Q

Crimes Against Person: Rape

Answer

A

CrimesAgainst Person: Rape

CL: Rape is the unlawful carnal knowledge of a woman by a man other than her husband, without effective consent

Modern Law:

Sexual intercourse ^{slightest penetration is sufficient to complete the crime.}
by force or threat of force
No Consent
- Penetration is accomplished by force or threat of immediate bodily injury
  - Victim is:
    - incapable of consenting due to lack of capacity ^{i.e. unconsciousness, intoxication, etc.;}
    - OR
    - Fraudulently caused to believe that act is not intercourse

NOTE:

Marital status is insignificant.

Fraud or trickery alone does NOT constitute rape. There must be penetration without contemporaneous consent or capacity to consent.

^{E.g. Convincing someone you plan on marrying them in order to have intercourse is NOT rape}

Question 45

Q

Crimes Against Person: False Imprisonment

Answer

A

False imprisonment is the unlawful confinement of a person without their consent ^{cannot be obtained through coercion/threat/deception}

NOTE: False imprisonment can become kidnapping if the victim is moved and/or concealed

Question 46

Q

Crimes Against Person: Kidnapping

Answer

A

Kidnapping is the unlawful confinement of a person that involves either:

1) Some movement of the victim;

OR

2) Concealment of the victim in an unknown, hidden or secret location

Question 47

Q

Crimes Against Person: Homicide/Murder

Answer

A

Murder is the unlawful killing of another human with malice aforethought

Malice aforethought arises when no mitigating facts reduce the killing to a lesser crime and D commits the killing with one of the following mental states:

Intent to Kill
Intent to Inflict Great Bodily Injury
Depraved/Malignant Heart
- A killing committed with reckless indifference to an unjustifiable risk of human life ^{(i.e. Russian Roulette Hypo)}
Felony Murder–A killing caused during the attempt or commission of an inherently dangerous or statutorily enumerated felony.
- The intent required is the intent to commit the underlying felony.
- Statute dictates that a killing resulting from the crime constitutes felony murder

Causation:

Ds act must be both
- the actual and proximate cause of the Victim’s death.
- Any act by Defendant hastening the Victim’s death, even if already inevitable, is considered a cause

Question 48

Q

Crimes Against Person: Statutory Murder

Answer

A

First-Degree Murder: Arises if the killing is either

Deliberate & Premeditated: D must have killed in a

dispassionate manner
and
must have considered or reflected on his killing, ^{even if only momentarily}

>> Specific Intent Crime: Voluntary Intoxication and Mistake of Fact are Valid defenses

________________

Felony Murder: Killing during an enumerated felony

( BARK: Burglary, Arson, Rape, Kidnapping )

_________________

Second-Degree Murder: A homicide not arising to first-degree murder

^{NOTE: If first-degree murder is not mentioned as a possibility in the MBE question or answer choices, assume the question involves second-degree murder, which is often he “default murder” on the MBE}

Question 49

Q

Crimes Against Person: Felony Murder

Answer

A

Crimes Against Person: Felony Murder: Felony murder is a killing that occurs during the attempt or commission of an enumerated felony. The intent necessary is to commit the underlying felony.

Felonies allowing for felony murder include

(1) inherently dangerous felonies
and
(2) statutorily enumerated felonies

Question 50

Q

Crimes Against Person: Felony Murder

Co-Conspiratory Liability for Felony Murder

Answer

A

Crimes Against Person: Felony Murder: Co-Conspiratory Liability for Felony Murder

Traditional Common Law, Proximate Cause Theory: Co-felon is guilty of all crimes committed during commission of the felony

Modern “Agency Theory”: Co-felon guilty only where killing is caused by one of the co-felons/participants in the crime

Question 51

Q

Crimes Against Person: Felony Murder

Defenses to Felony Murder

Answer

A

Limitations on Liability for Felony Murder:

D must be guilty of the underlying felony

>> Valid defense to the underlying felony are also defenses to felony murder

Underlying felony CANNOT be a killing itself (like manslaughter)
Victim’s death = FORESEEABLE result of the felony
Victim must Die Before D reaches place of temporary safety
Dis NOT liable for the death of a co-felon killed by police or the original Victim

Question 52

Q

Crimes Against Person: Voluntary Manslaughter

Answer

A

^{Crimes Against Person: Voluntary Manslaughter: }

Adequate provocation (heat of passion)

Provocation:
- Provocation would cause sudden and intense passion in an ordinary person >>> causing him to lose self-control
- D actually provoked ^{i.e. Defendant actually lost control}
Cooling Off:
- Insufficient Time for an ordinary person to cool off between the provocation and the killing^{>> Very subjective, fact based}
- D actually did not cool off

NOTE: Adequate provocation is NOT a defense to murder, but it can be a mitigating factor that reduces a murder charge to voluntary manslaughter

_____________________________

Imperfect Self-Defense:

D murders while acting in self-defense >> his criminal liability can be reduced to voluntary manslaughter if either:

D initiated the altercation that required self-defense,

OR

D unreasonably believed deadly force was necessary

Question 53

Q

Crimes Against Person: Involuntary Manslaughter

Answer

A

^{Crimes Against Person: Involuntary Manslaughter}

________________

A Killing

committed with

criminal negligence ^{D must be grossly negligent - _ie. }^{texting while driving and hits and kills a pedestrian in a crosswalk}

or

during the commission of an unlawful act

not constituting felony murder

_______________

Commission of an Unlawful Act: The requisite unlawful act is any felony or misdemeanor not given rise to liability for felony murder

NOTE: If MBE questions simply state “manslaughter” without distinguishing between voluntary and involuntary manslaughter, both types must be considered

Question 54

Q

Crimes Against Property: Larceny

Answer

A

Larceny: IS A CRIME AGAINST POSSESSION

Taking: Obtaining control or possession.
- NO Larceny ⇒ If D has LAWFUL POSSESSION when he decides to steal.^{(but may give rise to embezzlement)}
^Intent to Permanently Dispossess^: Intent to Take must be simultaneous with the Act of Taking
- Permanently deprive means for an unreasonable period of time.
- When one borrows property with the intent to return it, but later keeps it; larceny arises at the moment D decides not to return the property
Carrying Away: The slightest movement will suffice
Without Consent: No Consent of ANY KIND
- Consent by fraud or duress negates consent^{**Note: This element distinguishes larceny from larceny by trick**}

Specific Intent Crime: It is NOT larceny if D takes property as security for a for a debt owed or believing it belongs to Defendant

Finding a Lost Item: Larceny can arise if the true owner is known or ascertainable and D decides to keep the property ^{(must be lost or misplaced; larceny cannot arise for abandoned property)}

Question 55

Q

Crimes Against Property: Robbery

Answer

A

Wrongful Taking ^{(Force⇔Taking)}

by Force or Threat of Injury ^{(Force⇔Taking)}

of another’s personal property

^{fromhis} person or presence

with Intent** to **Permanently Deprive

Threat of Force:

Small Force or Small Threat are Sufficient
Threat of injury must be to victim, a member of her family, or a person in her presence.
Victim must give up the property because she feels threatened or harmed.
Threats of future harm are insufficient

Robbery = Assault or Battery + Larceny

Question 56

Q

Crimes Against Property: Embezzlement

Answer

A

Embezzlement is the fraudulent conversion another’s personal property by D in LAWFUL possession

Fraudulent conversion: D uses another’s property beyond the scope of or inconsistent with Ds possessor rights
Lawful possession: D must have lawful possession at the time of conversion

Special Issues Refuting Embezzlement:

* Intent to Restore: If D takes property with the intent to restore the exact property, NO embezzlement has occurred
* Claim of Right: Like larceny, embezzlement will not arise if the misappropriate is made under belief that D owns the property

Question 57

Q

Crimes Against Property: False Pretenses

Answer

A

Obtaining Title: Obtaining ownership, NOT mere possession

By False Statements: Must be an intentional false statement

Of Facts, not in the Future: Misrepresentation regarding a future event is NOT sufficient

Intent to Defraud: Victim must be deceived or act in reliance on the false statement in passing title to Defendant

Question 58

Q

Crimes Against Property: Larceny by Trick vs Larceny by False Pretenses

Answer

A

Larceny by TRICK = obtaining POSSESSION of another’s personal property using false statements of Facts not in the future

Larceny by FALSE PRETENSES = obtaining TITLE of another’s personal property using false statements of Facts not in the future

Question 59

Q

Crimes Against Property: Receipt of Stolen Property

Answer

A

^{Crimes Against Property: Receipt of Stolen Property: Receiving possession and control of personal property KNOWN to have been illegally obtained, with the intent to permanently deprive the owner of her interest in it}

Receipt of Stole Property requires:

Receipt of Possession and Control: Physical possession is not required, D can have possession or control by designating the property’s location or arranging to sell it for the original thief
Of Stolen Personal Property: Property must have been stolen when D receives it
Known by D to be Stolen: D must know or have reason to know property is stolen
Intent to Permanently Deprive the Owner of his Interest

NOTE:

Beware of “sting” situations: If police and the true property owner know of or arranged Defendant’s receipt of property, it is not truly stolen ^{i.e. there can be no receipt of stolen property.}
Defendant can be convicted of attempted receipt of stolen property if she intended to receive property, believing it was stolen

Question 60

Q

Crimes Against Property: Forgery

Answer

A

Crimes Against Property: Forgery: Forgery is the creating or altering of a written document with purported legal significant to be false, with the intent to defraud

Creating or Altering: ^{Drafting, adding, or deleting from a document’s contents}
Document with Purported Legal Significance: A document that carries legal value ^{e.g. a check or contract, but not a painting}
To be False: Modifying the document into something it is not; changing its legal significance, not just changing it to be inaccurate
With Intent to Defraud: Specific Intent Crime

NOTE: Actually defrauding somebody is NOT required, the mere intent to defraud is sufficient

Question 61

Q

Crimes Against Property: Extortion

Answer

A

Extortion is

obtaining property

through threats

of FUTURE >>> harm or exposing information

Question 62

Q

Crimes Against the Dwelling: Arson

Answer

A

Arson: Arson is the malicious burning of a dwelling house of another.

Malicious: With intent or extreme recklessness
Burning: Requires some damage to structure caused by fire.
- Insufficient: Damage from smoke, water, or explosions
Dwelling House: Structure where someone lives (CL requirement) NOTE: On the MBE it can be a non-residential structure
Of Another: Another person’s house. At CL, there can be no arson if you own the dwelling but do not reside there
Damages: There must be charring or something more.
- Insufficient - Discoloration, blackening, or other lesser damage

Question 63

Q

Crimes Against the Dwelling: Burglary

Answer

A

Burglary: Burglary is the breaking and entering into the dwelling house of another at nighttime with the intent to commit a felony therein

Breaking: Can be actual (opening or enlarging) or constructive (entry by threat, force, fraud or duress).
- Insufficient: Entering with consent or through a wide open door is NOT breaking
Entering: Placing any portion of the body or the instrument used for the breaking inside the dwelling
Of Another: Ownership is irrelevant; occupancy will suffice
At Nighttime: CL requirement. Not required element under modern statutes
With Intent to Commit a Felony Therein:
- Modern statutes include misdemeanors. Felony need not be completed;
- D must merely intend to commit a crime at the time of the breaking and entering.
  - Insufficient: Intent acquired after entering is insufficient

NOTE: On MBE, apply modern rules unless otherwise instructed

Question 64

Q

Exclusionary Rule

Generally*
Exceptions*
Remedy at for Violation*

Answer

A

Fruit of the Poisonous Tree Doctrine: Evidence derived or obtained from illegal govt conduct is excludable against Defendant. Arises when illegal police action leads to evidence

________________

Exclusionary Rule Exceptions: How law enforcement can get Poisonous evidence Admitted:

Independent Source: Govt had an independent source for obtaining the evidence i.e. independent from the original illegality
Inevitable Discovery: Govt would have discovered illegally derived evidence even without illegal conduct
Intervening Acts of Free Will by Defendant: After initial illegality, Defendant led police to the evidence by his own free will
Attenuation: Evidence challenged is too remote and attenuated from unlawful search or seizure

_________________________

Remedy for Exclusionary Rule Violation: Harmless error review.

For admission of illegally-seized evidence to be upheld on appeal, the govt must show that it was harmless beyond a reasonable doubt

Answer 64

A

Limitations on Exclusionary Rule: The Exclusionary Rule applies only to SEARCHES in violation of a federal statue or the U.S. Constitution.

Exclusionary Rules does NOT apply to

Grand jury proceedings
Civil proceedings
Parole hearings
Administrative cases
Violations of the “knock and announce” rule in executing search warrants
Evidence seized as a result of Miranda violations

Excluded Evidence and Impeachment: Confessions resulting from Miranda violations or illegally obtained evidence may be used to impeach Ds testimony at trial (but only Defendant’s testimony, not all testimony)

Govt. Good Faith Defenses to Exclusionary Rule: Illegally obtained evidence will NOT be excluded if the govt demonstrates that it relied in good faith on either:

defective search warrant
judicial opinion or statute that was later changed or declared invalid

Answer 65

A

An arrest occurs when police take an individual into custody for purposes of criminal prosecution or interrogation.

Probable cause is always required for any valid arrest.

Probable cause is trustworthy facts or knowledge sufficient for a reasonable person to believe the suspect has committed or planning to commit a crime

Warrants - Required for home arrests

Unless an arrest occurs in the arrestee’s own home, the govt does not need a warrant to make an arrest.
A warrant is not required for an emergency arrest occurring in the arrestee’s home

Answer 66

A

Detentions: A detention is a governmental seizure of a person that is lesser than an arrest. Common govt detentions include:

Stop & Frisk (“Terry Stop”): Requires reasonable suspicion
Automobile Stop: Requires reasonable suspicion
Stationhouse Detention: Probable cause required to compel a person to enter a govt. location for fingerprinting, questioning, etc.
Detention to Obtain a Search Warrant: Requires probable cause. If police have probable cause to believe a suspect has contraband hidden in her home, they may prevent her from entering her home for a reasonable time while they obtain a search warrant. Purpose must be to prevent destruction of evidence
Detention of Occupants of a Premises: If police have a valid warrant to search premises, they may detain occupants for duration of the proper search

Answer 67

A

Valid Search or Seizure: Govt. searches and seizures of evidence must be reasonable under the 4th A, which requires a valid search warrant unless one of the 6 exceptions applies.

In determining the reasonableness of a search or seizure:

Is there govt. conduct constituting a search or seizure?
>> 4th A only applies to govt. conduct (direct or authorized); does not protect against private conduct
Does the Defendant have Standing? Defendant must have a reasonable expectation of privacy in the thing or placed being searched
Is there a valid search warrant?
- If there is NO valid search warrant >>> Was there a valid exception to the search warrant requirement?
  - ^{Search Incident to Arrest}
  - ^{Plain View Search}
  - ^{Automobile Search}
  - ^{Valid Consent to Search}
  - ^{Exigent Circumstances}
  - ^{Stop & Frisk}

Answer 68

A

Reasonable Expectation of Privacy: 4th A only applies if a person has a reasonable expectation of privacy (REP) regarding the thing or place searched and/or items seized. Standing to challenge a govt. search requires REP.

REP is determined by the totality of the circumstances.

NO REP for Inherently public things ^{e.g. handwriting, voice, location, odors, public records, things viewable from public space, garbage placed outside}

REP ALWAYS exists if Defendant either:

Owns, has a right to possess, or lives in the premises to be searched
Is an overnight guest of the premises being searched

Answer 69

A

Requirements for a Valid Search Warrant

Based on Probable Cause: Usually a police affidavit demonstrating PC that the search or seizure will produce evidence.
- Affidavits must contain:
  - Facts showing PC
  - May include information from anonymous sources i.e. informants
- If based on false information, warrant is invalid
Precise on its Face: Warrant must describe with reasonable precisions the place to be searched and/or items to be seized
Issued by a Neutral and Detached Magistrate
- Note: If Violated, evidence seized cannot be admitted under the good faith reliance exception

^{Almost anywhere may be searched pursuant to a valid warrant.}

^{Warrants can be issued for any location where the govt. has probable cause to believe there is evidence to be seized}

Answer 70

A

Execution ofSearch Warrants:

Timing: A search warrant must be executed without unreasonable delay after it is issued
Knock and Announce Requirement: Police must knock and announce their purpose, then wait a reasonable time for admittance before entering on their own accord.
- >> EXCEPTION: K&A is not required if officers have RS that announcing their presence would be dangerous, futile, or would inhibit the investigation
Scope of Search: Police can seize evidence of criminal activity they discover, even if not included in the warrant.
- Basis is Plain View exception to search warrants.
- Police CAN detain people found on the search premises
- Police CANNOT search detained persons unless their are specifically named in the warrant or a valid warrantless exception exists
  - ^{_{Search Incident to Lawful Arrest (SILA)}}
  - ^{_{Plain View Searches}}
  - ^{_{Consent to Search}}
  - ^{_{Automobile Search Exception}}
  - ^{_{Automobile Stops & Police Checkpoints}}
  - ^{_{Stop & Frisk}}
  - ^{_{Exigent Circumstances: Hot Pursuit, Emergency & Evanescent Evidence}}

Answer 71

A

Search Incident to Lawful Arrest (SILA): Police MAY search a lawfully arrested person and his immediate surrounding area without a warrant.

A search incident to arrest requires:

Lawful Arrest
Search is Contemporaneous with the Arrest
Search limited to area within suspect’s immediate reach or movement ^{i.e. where he could obtain weapons or destroy evidence}

Protective Sweeps: Police MAY sweep an area for officer safety or with reasonable belief that accomplices may be present

Automobiles: After arresting occupant, police MAY search the vehicle’s interior^{including glove box}. IF at the time of the search:

The Occupant is Under Arrest

AND

Arrested Occupant is unsecured and may access the vehicle’s interior; OR
Police reasonably believe evidence of the crime f^{or which the arrest was made} is in vehicle
NOTE: Police CANNOT search trunk without probable cause or consent

Cell Phones: Policy CANNOT search digital information on a phone seized during an arrest without a warrant

Answer 72

A

Plain View Searches: Police MAY search from any place where they are legitimately present when viewing^{i.e when conducting the search}

Seizure Based on Plain View Without Warrant:

Police are legitimately on the premises from which they viewed the evidence to be seized
Criminal activity or contraband is immediately apparent; AND
Police have probable cause to believe that plainly viewed evidence is contraband or relates to a crime

Scope & Limitation of Plain View Searches: Plain view includes anything viewable from land or public property, even if only viewable through binoculars.

Non-Public Technology: Police cannot use technology not generally available to the public to view evidence the may constitute a plain view search (e.g. infrared scanners)

NOTE: Use of drones for plain view searches is unsettled law

Plain smell is included within plain view. If a smell gives rise to probable cause from a place of legitimate police presence, they can search that item

Answer 73

A

Consent to Search: With valid consent, police may search anything.

Voluntarily and Intelligently Made:
- Police CANNOT lie or decide to obtain consent.
- Police have NO obligation to inform suspects that they have a right to refuse consent
Person Giving Consent has Authority to Consent: Authority to consent must be reasonably apparent

Scope of Consent: Consent can be LIMITED by consenting party. Violation of scope of consent renders the entire search non- consenting

Third-Party Consent: allowed if there is authority to consent. Where multiple people have property rights ^{(e.g. ownership, authorized use, occupancy)} any single one can consent to the search of any area where they have authority to consent.

Scope of consent is dictated by the person present with highest authority to consent.
A resident’s right to consent trumps a non-resident ^{(e.g. if both tenant and landlord are present, the tenant’s refusal trumps the landlord’s consent).}

Refusal trumps consent, there is no consent if two persons with equal right to possession disagree on consent

Answer 74

A

Automobile Search Exception: If probable cause exists, police may search an entire vehicle (including the trunk) and containers or compartments inside that may contain the evidence they are searching for.

Automobile Search Exception requires:

Probable Cause to search the vehicle
PC that ^Arises BEFORE the search begins ^{i.e. PC must arise based on something between the vehicle stop and the search}

Scope of Permissible Search:

Passengers and their belongings
Packages and Containers in Vehicle:
- ^{Police MAY open packages, containers, or luggage that might contain evidence relating to the reason they searched the vehicle.}
Trunk
Police may also tow the vehicle and search such containers at a later time

Answer 75

A

Automobile Stops: To stop or pull over a vehicle, police must have reasonable suspicion that the law has been violated.

Pretexutal stops, stops with an ulterior motive, are OK if police have reasonable suspicion of any legal violation

Accompanying Searches: During an automobile stop, police may search:

If Reasonable Belief of Weapon >> Passengers and passenger compartments (but not the trunk)
- >> Police CAN order passengers out of the vehicle
Any open containers that could reasonably contain evidence ^{supporting the reasonable suspicion for the stop}
- >> Does NOT include closed, locked containers

Entire car MAY be searched if probable cause arises pursuant to the automobile search exception

Answer 76

A

Police checkpoints must relate to a vehicle-specific purpose.

Checkpoint/roadblock that stops cars without individualized suspicion (e.g. DUI checkpoint) must:

Stop cars using neutral, articulable standards (e.g. every fourth car)
Serve purposes related to automobiles and their mobility
- E.g. DUI checks relate to road safety, but drug checkpoints are insufficiently related to driving, and are thus unconstitutional

Answer 77

A

Stop & Frisk aka “Terry Stop”: Police may detain a person for an INVESTIGATIVE purpose if they have reasonable suspicion of criminal activity

Allowable Scope of Stop & Frisk:

Length: Detention must be NO longer than necessary to verify the suspicion
Frisk: If police have reasonable suspicion the person is armed or dangerous, they may frisk for weapons.
- >> Plain Feel: If police have reasonable BELIEF during the frisk that what they feel is a weapon or contraband they may seize the suspected item.
  - Officers cannot manipulate the item to develop reasonable belief, it must be plain touch only.
  - Evidence validly seized is admissible

Stop vs. Arrest: A stop is a brief detention, not an arrest. But police may develop probable cause to arrest based on anything occurring or discovered during the stop and/or frisk

Answer 78

A

While actively pursuing a fleeing felon, police can search for anything relating to the pursuit or can search for their own protection

Answer 79

A

Police can search or seize evidence if justified by emergency circumstances (e.g. a bomb threat or act of terrorism) without a warrant

Answer 80

A

Police can search or seize evidence that could disappear if police were required to secure a warrant

E.g. drugs the may be discarded, DNA evidence that may not last

Answer 81

A

Govt. agencies MAY conduct routine searches or inspections of highly-regulated business or industries. e.g. building code inspection, inspections for food safety, airline passenger searches

A warrant is required for inspections of private residences or commercial buildings. T

he warrant requires less particularity than standard warrants.
A general and neutral enforcement plan of the searches will suffice to validate the warrant

Answer 82

A

School officials must have reasonable grounds the search is necessary (less burdensome than PC).

A school search is reasonable if:

1) Search offers a moderate chance of finding evidence of wrongdoing;
2) Procedure for searching is reasonably related to objectives of the search;

AND

3) Search is not excessively intrusive

Drug Tests: Random urine tests are permitted for public school students participating in extracurricular activities

Answer 83

A

At borders, officials may conduct routine searches of persons and their effects (including vehicles) without a warrant, probable cause, or reasonable suspicion.

The border includes any place where one can arrive in the U.S. for a foreign country ^{(e.g. there is a “border” at Denver International Airport)}

Detentions: Officials MAY detain a traveler at the border if they have reasonable suspicion she is smuggling contraband

International Mail: Officials can open and inspect international mail if they have reasonable suspicion it contains contraband

Answer 84

A

Officials may raid a business to determine citizenship status of its employees

Answer 85

A

Electronic Surveillance: Wiretapping and Eavesdropping: Electronic surveillance (e.g. wiretapping and eavesdropping) that violates a reasonable expectation of privacy constitutes a search under the 4th A and requires a warrant

A valid electronic surveillance warrant requires:

Probable cause that a specific crime is being or has been committed
must name suspects subject to surveillance
must describe with particularity the subject of conversations that can be surveilled
Surveillance must be limited to short periods of time
Terminate when desired information is obtained and must be turned over to the court

NOTE: All speakers assume the risk that the person to whom they are speaking is wired and/or recording the conversation. Therefore, police do not need a warrant if they get someone to wear a wire and talk to a suspect.

A speaker who makes no attempt to keep a conversation private has no reasonable expectation or privacy
Police DO need a warrant to tap the suspect’s phone

Answer 86

A

A Privilege Against Self-Incrimination: Any person in any proceeding (civil or criminal) may refuse to answer a question if her response might incriminate herself

The privilege is ONLY available for compelled testimonial or communicative evidence.

Compelled means elicited or induced.

Evidence produced from Defendant’s free will is not compelled (e.g. D’s diary).
Lie detector tests custodial interrogations, etc. are compelled and 5th A privilege will apply.

________________

Communicative Evidence: Testimonial evidence is verbal or otherwise communicative evidence (lineups and physical evidence is not testimonial).

Privilege does not apply if:

Grant of Immunity: Govt. CAN grant immunity from prosecution for self-incriminating testimony
Incrimination Is Not Possible: e.g. SOL has run
Extinguished by Waiver: Defendant waiver privilege

NOTE: At trial, prosecution CANNOT comment on Defendant’s silence or failure to testify

Answer 87

A

Miranda Rights: Miranda only applies when the accused is in (1) custody and (2) interrogated.

Custody meaning the accused is not free to leave.

Interrogation is statements by the police likely to elicit an incriminating response(s). Unsolicited statements are NOT protected

>>NOTE: Routine questioning (e.g. during booking or a probation interview) is NOT considered interrogation
>>Public Safety Exception: Police my interrogate suspects without giving Miranda warnings IF necessary for public safety (e.g. D has info about a boom that could go off in public)

Miranda Warnings: Police must inform the accused that he has:

The right to remain silent
Anything said can be used against him
He has a right to the presence of an attorney, and
One will be appointed if he cannot afford one

Substantial compliance in reading warnings is sufficient Failure to give warnings implicates 5th A, not 6th A

Answer 88

A

Invoking Miranda Rights: An accused may terminate an interrogation at any time by invoking (1) his right to remain silent or (2) requesting counsel

Invoking Right to Silence: Police must cease all questions.

Only the accused can re-inititate dialogue.
Police may later question accused about unrelated crimes

Invoking 5th A Right to Counsel: Police must cease all questions on ANY topic until counsel is provided and present.

If accused initiates communication, interrogation is allowed
>> NOTE: This is different from 6th A Right to Counsel, which is offense-specific and does not attach until charges have been filed

Answer 89

A

In order to waive Miranda rights, waiver must be:

Knowing
Voluntary: Must be clear verbal waiver

AND

Intelligently Made

Burden is on the prosecution to prove waiver was valid

Answer 90

A

Double Jeopardy: D CANNOT be retried for the same offense once jeopardy has attached; arises when D charged with one crime is charged with another crime based on the same offense

Same Offense: Offenses are different if conviction for one offense requires proof of an element not included in the other offense

>> Different Offense: First offense requires proof of A & B; second offense requires proof of A, C, & D
>> Same Offense: First offense requires proof of A, B, & C; second offense requires proof of A & B
E.g. D cannot be charged for larceny after his trial begins for robbery from the same incident

EXCEPTIONS:

New evidence for greater offense becomes available
D can be tried for battery and subsequently tried for homicide if the victim later dies from the battery

When Jeopardy ATTACHES:

Jury Trial: Once jury is impanelled and sworn in
Bench Trial: Once first witness sworn in
Civil Trial: Jeopardy is NOT applicable

Answer 91

A

^{Double Jeopardy Exceptions Permitting Re-Trial:}

Once jeopardy is attached retrial PERMITTED if:

Hung Jury
Mistrial due to Manifest Necessity:
- Occurs when D’s original trial is aborted for some reason (e.g. D too ill to continue)
Retrial after Successful Appeal by D:
- D can be retried unless the basis for reversal was insufficient evidence to support a guilty verdict
D Breaches a Plea Bargain Agreement
Separate Sovereigns:
- ^{D CAN be tried for the same crime in different STATES}
- ^{D CAN be tried for the same crime in FEDERAL and STATE court}

Answer 92

A

6th Amendment Right to Counsel: Once the 6th A right to counsel attaches, police *may not elicit* incriminating statements outside the presence of D’s counsel.

The right attaches >>> once charges filed >>> then applies to all subsequent stages of the proceeding

The right is OFFENSE-SPECIFIC.

Police CAN question D about any other crime without violating D’s 6th A rights

Answer 93

A

^{Pre-Trial Line-Ups & Showups}

Suspect has a right to counsel in any

post-charge in-personlineup or showup

^{Lineup: Witness is shown several possible suspects}

^{Showup: Witness asked to identify a single suspect}

This does NOT apply to non-live identification procedures (e.g. photo lineups, fingerprinting)

Due Process Considerations: D can attack pretrial identification procedures as denial of due process rights if:

Identification is unnecessarily suggestive;
AND
substantial likelihood of misidentification.

This is determined under the totality of the circumstances.

Remedy for Violation: D may move to suppress any subsequent in-trial identifications made by the witness

NOTE: Remedy for a violation is rare because govt. can often prove the identifying witness has an independent source of identification to overcome exclusionary rule

Answer 94

A

Pretrial Hearings & Bail:

Pretrial (preliminary) Hearing: May be required to determine whether probable cause to detain the suspect.

Must occur within 48 hours of detention, if required.
Required if:
- D is incarcerated or released upon posting bail ^{i.e. does NOT apply if D released on sole condition she appear for trail}
- There has not been a grand jury or other judicial determination of probable cause ^{e.g. not required if arrest was made with warrant}

Bail: Must be set no higher than necessary to ensure D will appear at trial.

Detention without bail is constitutional, but any decision to refuse bail is immediately appealable.
- Arbitrary denial of bail violates due process
- For denial of bail, govt. must show EITHER:
  - D poses a FLIGHT risk; OR
  - D poses a DANGER to the community

Answer 95

A

Grand Jury Proceedings:

Used to determine whether there is sufficient probable cause to bring charges against a suspect.
Prosecutors present their cases to the grand jury, which vote to issue an indictment if they find probable cause

Grand Jury Proceedings

Conducted in PRIVATE
Suspect has NO right to confront witnesses or attend proceedings
Witnesses are not entitled to Miranda warnings
Witnesses may not challenge a subpoena, but they may refuse to testify under the 5th A
Exclusionary rule does NOT apply ^{i.e. an indictment can be based on evidence that would be inadmissible at trial}

Answer 96

A

Right to Speedy Trial: The 6th A guarantees D the right to a speedy trial. It protects D from unreasonable delay between the time charges are filed and the beginning of trial.

Timing: The right attaches once D has been arrested or charged

Analysis:Violations are determined under a totality of the circumstances. Courts look at the following factors:

(1) length of delay,
(2) reason for delay (did D contribute to delay),
(3) whether D asserted his right to speedy trial, and
(4) whether the delay has prejudiced D

Remedy for violation is dismissal of the case WITH prejudice

Answer 97

A

Jury Size and Selection Requirements:

Jury Size and Unanimity:
- A jury MUST contain at least 6 jurors.
- There is NO constitutional right to a unanimous verdict.
  - However, a 6-member jury verdict must be unanimous. 11-1, 10-2, and 9-3 jury verdicts have been upheld
Juror Composition Requirements: must be a representative cross-section of the community. The actual jury does NOT have to be representative
Right to an Impartial Jury:
- D can question potential jurors on possible prejudices if relevant to the case (e.g. racial biases, feelings on the death penalty).
- D can challenge for cause based on prejudices and has unlimited challenges for cause if relevant to the case
Peremptory Challenges: Cannot be used to exclude jurors on account of race and gender (violates EPC)

Answer 98

A

Right to Confront Witnesses: The 6th A gives D the right to confront adverse witnesses. D has a right to have adverse witnesses testify in-person and subject to cross-examination. ^{D can be removed from court for disruptive behavior}

In-person testimony is NOT required if:

Exclusion is necessary for public policy, and
Reliability of the testimony is otherwise assured

Co-D Confessions: A co-Defendan’ts confession implicating D is INADMISSIBLE against D at a JOINT jury trial (ok at bench trial), EXCEPT when:

Confessing co-D testifies subject to cross-examination; OR
D’s have separate trials; OR
Confession is edited so that all portions referring to the co-D are eliminated; OR
Co-D’s confession is used to rebut D’s claim that his confession was obtained coercively

Hearsay: Prior testimonial statements of UNAVAILABLE witnesses are ONLY admissible if D had the opportunity to cross- examine the declarant when the statement was made

Answer 99

A

8th Amendment: Death Penalty: The death penalty MAY ONLY be used at sentencing if the victim DIES as a result of D’s crime.

In order tobe valid:

The statute allowing death penalty must not be unconstitutionally vague; AND
Jury must be allowed to consider mitigating circumstances ^{e.g. D’s abusive childhood, mental impairments, etc.}; AND
There must be at least one “aggravating circumstance” ^{(e.g. prior convictions)} support the sentence

The death penalty CANNOT be imposed if:

D was under 18 when the crime was committed;
D is mentally disabled i.e. has mental retardation;
D is insane at the time of execution; OR
The conviction was for felony murder, and:
- D was not a major participant, OR
- D did not act with depraved indifference to human life

Answer 100

A

For a pleabargainto bevalid:

Judge must determine plea is voluntarily and intelligently made
Judge must ensure the D understands:
The nature of the charge and its critical elements
Maximum authorized penalty and any mandatory sentence
That D has right to plead not guilty
That D is waiving his right to a jury trial

Appellate Courts will NOT disturb a valid plea UNLESS:

Plea was made involuntarily (e.g. due to a misunderstanding)
The court that took the plea lacked jurisdiction
D had ineffective assistance of counsel
The Prosecutor failed to honor the plea

Contract Theory of Plea Bargaining

Pleas will be enforce against both parties, but the judge is not required to accept or adhere to the agreement
The Prosecutor CAN threaten D with a more serous crime than he was initially charge with and even follow through on such threats if D does not accept plea

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MBE Criminal Law and Procedure Flashcards

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