Midterm

Question 1

In the criminal adjustication process,

when is probable cause an appropriate burden of proof?

Answer 1

Arrest/booking, charging decision, and pretrial proceedings.

Question 2

Regarding burdens of proof,

where does probable cause lie in reference to the other burdens of proof?

Answer 2

Below the 50% threshold

Question 3

In reference to the adjudication process,

when is proof required beyond a reasonable doubt?

Answer 3

Trial

Question 4

Regarding burdens of proof,

what is the definition of beyond a reasonable doubt?

Answer 4

There is no definition. The Supreme Court only requires that the courts instruct the jury correctly. Courts will often impress upon the jury the gravity of a decision and compare it to other common sense benchmarks like major life events. Courts will typically avoid putting a percentage on it and do not compare it to other burdens of proof.

Question 5

In reference to the criminal adjudication process,

what is used to determine sentencing?

Answer 5

Federal guidelines and theories of punishment.

Question 6

In reference to sentencing,

are the federal guidelines mandatory? What must courts consider in addition to the guidelines?

Answer 6

No, they are not mandatory. District courts must sufficiently consider the guidelines along with four other factors:
1. the nature and circumstances of the offense;
2. The history and characteristics of the defendant;
3. The need for the sentence to provide any of the theories of punishment; and
4. The kinds of sentences available.

Question 7

What two categories of theories of punishment exist? What are their purposes?

Answer 7

1. Utilitarian theories of punishment focus on balance or benefit to society and look to the future.
2. Retributive sentences focus on the fact and the fact thtat the criminal deserves a punishment becasue the crime created an imbalance and punishment rectifies that.

Question 8

What are the four prongs of utilitarian theories of punishment?

Answer 8

1. Incapacitation
2. Specific Deterrence
3. General Deterrence
4. Rehabilitation

Question 9

In reference to sentencing,

what are collateral consequences?

Answer 9

Societal punishment after a sentence ends.

Question 10

In reference to sentencing,

what is proportionality?

Answer 10

An idea based on the Eighth Amendment ban on cruel and unusual punishment that states that not all crimes deserve the same punishment and not all people who commit crimes deserve the same punishment.

Question 11

With whom does the burden of proof rest at trial and what must be proven?

Answer 11

The prosecution must prove beyond a reasonable doubt that all elements of the crime occurred at or near the same time.

Question 12

What protections are provided to the defendant by the Due Process Clause of the Fifth Amendment?

Answer 12

That the defendant is presumed innocent and does not have to do anything at trial, and that the prosecution cannot call the defendant as a witness or otherwise lead the jury to believe that the defendant not testifying is presumed guilt.

Question 13

Who may use evidence presented by the prosecution in trial?

Answer 13

Either side may use evidence produced by either side.

Question 14

In reference to the adjudication process,

what do courts use to determine the validity of a lower court’s ruling?

Answer 14

At appeal, the appellate court employs a standard of review: trial error, sufficiency of the evidence, or sentencing decisions.

Question 15

In reference to the appellate standards of review,

what is trial error?

Answer 15

The lower court admitted evidence when it shouldn’t have. The appellate court may or may not be differential to trial court. It is more likely for an appellate court to find error. The harmless error doctrince could prevent reversal. If error is found, the defendant is granted retrial, not an acquittal.

Question 16

In reference to the appellate standards of review,

what is sufficiency of the evidence?

Answer 16

Whether a rational trier of fact could have found all of the elements beyond a reasonable doubt. Evidence is viewed in light most favorable to the prosecution. All inferences are made in favor of a guilty verdict. Low chances of success but if reversed is treated like an acquittal.

Question 17

In reference to the appellate standards of review,

what is sentencing decision?

Answer 17

Reviewed under abuse of discretion: unreasonable application of the law or facts. Some jurisdictions provide a presumption of reasonableness to in-range sentences. Low chance of success, reversal grants a new sentence, but doesn’t reverse the conviction.

Question 18

What are jurisdiction and venue? Who proves it?

Answer 18

Jurisdiction is whether the court has the authority to hear the case. Venue is whether the case is being heard in the right place. Proving venue is part of the prosecutor’s requirement to prove jurisdiction. There is no uniform burden of proof for venue. It varies by jurisdiction.

Question 19

In reference to statutory analysis,

what is the hierarchy of sources?

Answer 19

Constitution, Statutes, Regulations, Court and Procedural Rules, Common Law

Question 20

In reference to the canons of construction,

what is step 1?

Answer 20

Start with the text of the statute. Give effect to plain, unambiguous language. Look for red flag words (may/shall, and/or, etc.)

Question 21

In reference to the canons of construction,

what if the text is ambiguous?

Answer 21

Amiguous modifiers apply only to the last antecedent in a list. Look at lists of things and in pari materia.

Question 22

In reference to the canons of construction,

what are the rules governing ambiguous texts and lists of things?

Answer 22

• Noscitur a sociis: company they keep
• Ejusdem generis: general terms at the end of a list means the same thing as others in the list
• Expressio unius: if it’s not in the list, it’s not meant to be in the list

Question 23

In reference to the canons of construction,

what is in pari materia?

Answer 23

The idea that to find the meaning of ambiguous words, to read statutes with the same purpose together. That is, look for definitions in the criminal code, not in other sections of the code.

Question 24

In references to the canons of construction,

what is the next step if ambiguous words are still ambiguous after looking within the text?

Answer 24

Turn to non-textual canons.
1. Statutes in derogation of common law and narrowling construed
2. Statutes are to be read in light favorable of the common law
3. Rule of lenit: Ambiguity is interpreted in favor of the defendant after all other options are exhausted.

Question 25

In reference to statutory analysis,

what are constitutional limits on statutes?

Answer 25

Vagueness, federalism, due process right to privacy, first amendment, ex post facto, bill of attainder

Question 26

What are the components of a statute?

Answer 26

Actus reus (bad act)
Mens rea (bad thought)
Attendant circumstances
Causation (specific result)

Question 27

What is required of an actus reus?

Answer 27

An act must be voluntary

Question 28

In reference to the actus reus,

what are examples of involuntary acts?

Answer 28

• Reflexes or convulsions
• A bodily movement during unconsciousness (not self-induced) or sleep
• A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual

Question 29

When is an ommission an act?

Answer 29

When there is a legal duty imposed on someone to act:
1. Imposed by statute
2. In a certain status relationship
3. asumed contractual duty to care for another
4. voluntarily assumed the care of another and isolated that person so others cannot render aid

Question 30

When is possession an act?

Answer 30

Possession is a voluntary act in and of itself. Other circumstances like how a person got to a location are irrelevant.

Question 31

What are the two types of possession?

Answer 31

1. Actual possession
2. Constructive possession: the ability to exercise dominion or control over the item)

Question 32

How is mens rea treated under common law?

Answer 32

It is split into two categories: specific intent and general intent.

Question 33

Under common law,

what is specific intent?

Answer 33

The higher of the two levels of intent under common law and requires proof that the defendant committed the act with the purpose of producing the illegal result. It is harder to prove and has more defenses. It is signified in statutes by words such as willfully, knowingly, or intentionally.

Question 34

Under common law,

what is general intent?

Answer 34

It is the lower of the two levels of intent and only requires proof that the defendant intended to commit the crime.

Question 35

What is presumption in favor of scienter?

Answer 35

An idea that runs through common law that all criminal statutes must have some type of mental state requirement and that mental state applies to all elements if not otherwise stated.

Question 36

How is mens rea treated under Model Penal Code?

Answer 36

It is divided into four categories:
1. Purposely
2. Knowingly
3. Recklessly
4. Negligently

Purposely can only be proven by purposely. K = P,K. R = P, K, R. N = P,

Question 37

How is mens rea proved?

Answer 37

Usually by circumstantial evidence, which can be the sole basis for conviction.

Question 38

What is circumstantial evidence?

Answer 38

Anything that allows a jury to infer a fact that is relevant to the case and consists of proof of other events or circumstances that would infer the fact existed.

Question 39

How may trial courts instruct juries regarding circumstantial evidence?

Answer 39

A jury may infer that a person intends the natural and probable causes of his actions, but a trial court cannot instruct a jury to infer or presume as such.

Question 40

What is the willful blindness instruction?

Answer 40

Permits a finding of knowledge even when there is no evidence that the defendant actually possessed the knowledge. There must be a subjective belief by the defendant that there was a high probability a fact existed AND deliberate action to avoid learning the fact. Trial courts cannot instruct the jury to infer or presume as such.

Question 41

What is strict liability?

Answer 41

With these crimes, there is no mental state elemnt. Due process limits what states can make srtict liability. It is an exception, not the rule. If a statute lacks a mental state and criminalizes passive or non-conduct, it can be found unconstitutional. Sometimes individual elements can be strict liability (statutory rape: age of victim).

Question 42

What are the factors to consider in determining if a crime is strict liability?

Answer 42

1. No mens rea term in the statute
2. Not derived from common law or malum prohibitum crimes (as opposed to malum in se)
3. Legislative polict would be undermined by a mens rea requirement
4. Is a public wellfare offense
5. Has a small penalty
6. Has little stigma to the individual involved

The MPC does not like strict liability (violations, fines)

Question 43

When is mistake of fact a defense?

Answer 43

• Specific intent: If defendant had a good faith belief, regardless of whether that belief was reasonable.
• General intent: If defendant had a good faith belief AND the belief was reasonable.
• Strict liability: never
• MPC: If the mistake would negate an element of the offense (mental state).

Question 44

When is mistake of law a defense?

Answer 44

• Specific intent: Only if the defendant’s good-faith mistake negates the mens rea element.
• General intent: Only if there is a fair notice of violation of due process.
• Strict liability: never
• MPC: Only if the statute was not available OR reasonable reliance on an official statement of the law.

Question 45

How does intoxication operate as a defense?

Answer 45

Like mistake in that the defense negates the mental state requirement of an element. Both voluntary and involuntary intoxication (forced, by mistake, pathological, or unexpected results) are not defenses to strict liability crimes.

Question 46

How does intoxication operate under common law?

Answer 46

• Voluntary intoxication is a defense to specific intent crimes, but not to general intent crimes.
• Involuntary intoxication is a complete defense to both specific intent and general intent crimes.

Question 47

How does intoxication operate under MPC?

Answer 47

• Voluntary intoxication (self-induced) is a defense if it negates an element of the offense but does not apply to recklessness or negligence.
• Involuntary intoxication is a defense if it causes the defendant to lack the substantial capacity to appreciate the wrongfulness of their conduct or to conform their conduct to the law.

Question 48

What are the two prongs of causation?

Answer 48

Cause-in-fact and proximate cause. Both are required to prove causation.

Question 49

What is cause-in-fact?

Answer 49

It is necessary to a result but does not have to be the largest contributing factor. It is the minimum requirement and analysis stops without it.

AKA but-for, factual, and actual causation

Question 50

What is proximate cause?

Answer 50

When the harm caused is foreseeable and naturally occurring and does not disrupt the chain of causation. It sets a limit for imposing culpability and narrows the range.

Question 51

How is proximate cause treated under common law and MPC?

Answer 51

• Common law, traditionally, uses the year and a day rule.
• MPC holds that a result cannot be too remote or accidental in its occurrence to have a just bearing on defendant’s liability or on the gravity of the offense.

Question 52

What is an intervening cause? What are the prongs?

Answer 52

An intervening cause is an event which comes between the initial event and the result.
* Independent intervening causes are the acts of an independent person or entity that breaks the chain of causation and relieves the defendant of liability
* Dependent intervening causes do not relieve the defendant of laibility and are normal and foreseeable results of the defendant’s original act.