Review

Question 1

Specific intent crimes?

Answer 1

Property offenses: burglary, larceny, robbery

Inchoate crimes: conspiracy, attempt, solicitation

1st deg murder

Attempt (spec attempt/ overt act) - answer usually about negating

2 Defenses

(i) Vol intoxication
(ii) ANY mistake of fact (even if unreasonable)

Question 2

Malice crimes?

Answer 2

Arson or murder

Question 3

General intent crimes?

Answer 3

All others

Defense
Reasonable mistakes of fact

Question 4

Commission of a crime?

Answer 4

1) Actus reus
2) Mens rea
3) Concurrence of 1 and 2
4) Causal connection
5) Harm

Question 5

Negating element required?

Answer 5

Better for why defendant NOT guilty than to say defense exists

Question 6

Murder

Answer 6

1) Intentional - sp intent
2) Intent to inflict serious bodily injury
3) Felony murder - BARRK

Burg/ arson/ rape/ robbery/ kidnapping

4) Depraved heart vs. inv manslaughter

DH - Recklessness so high as to be indiff of life (more reckless where more people around)

IM - Negligence

Question 7

What are the 2 elements of attempt?

NOTE: NY Distinction

Answer 7

1) An overt act BEYOND mere preparation;

“Substantial step” test = conduct that constitutes a substantial step towards the completion of the crime is sufficient (provided the conduct strongly corroborates the actor’s criminal purpose)

NY DISTINCTION = “proximity” test = conduct that gets dangerously close to the commission of the crime

2) W/ the specific intent to commit the underlying crime

You CANNOT attempt UNINTENTIONAL crimes, so NO attempt for:

(i) recklessness crimes;
(ii) negligence crimes; OR
(iii) felony murder

NOTE: transferred intent does NOT apply to attempt crimes

Question 8

When is mistake of law a defense to criminal conduct?

Answer 8

Generally NOT a defense

EXCEPTION: if the statute specifically makes knowledge of the law an element of the crime (e.g. “selling a phony Rolex, knowing it is unlawful to do so”)

Question 9

What are the merger rules for inchoate crimes (i.e. solicitation, conspiracy and attempt)?

NOTE: NY Distinction

Answer 9

Solicitation: Merges w/ (i) attempt; (ii) conspiracy;AND (iii) completedtarget crime

NY DISTINCTION: Solicitation does NOT merge (i.e. it stays a sep crime)

Attempt: Merges w/ completed target crime (ONLY)

Conspiracy: DOES NOT merge. Period. (i.e. it stays a sep crime)

Question 10

Is withdrawal/abandonment from an inchoate crime possible?

NOTE: NY Distinction

Answer 10

Common law: withdrawal is NOT a defense to an inchoate defense

EXCEPTION: Once ∆ withdraws (i.e. lets the other co-felons know) from a CONSPIRACY he will no longer be vicariously liable (Pinkerton) for crimes committed by his co-conspirators AFTER he left the conspiracy (BUT is liable for crimes committed prior to withdrawal)

NY DISTINCTION: Withdrawal IS an affirmative defense to solicitation AND conspiracy IF the ∆

(i) voluntarily/completely renounced the act; AND
(ii) prevented the commission of the object crime

Abandonment IS an affirmative defense to attempt IF the ∆

(i) manifests a voluntary/complete renunciation of his actions; AND
(ii) he avoids the commission of the object crime by abandoning the criminal effort

Question 11

Is it possible to have a one-person conspiracy?

NOTE: NY Distinction

Answer 11

Common law rule = NO!

There must be at least 2 guilty minds (bilateral approach)

NOTE: If the other parties to the agmt are ACQUITTED, the last remaining ∆ CANNOT be convicted

NY DISTINCTION = YES!

A ∆ may be guilty of conspiracy EVEN IF the other parties are acquitted or were just pretending to agree (the unilateral approach)

Question 12

What are the 3 elements of CL robbery?

Answer 12

1) A larceny

REMEMBER: Since larceny is a specific intent crime, so is robbery

2) from another’s person or presence;

“Presence” = some location reasonably close to the victim (e.g. rooms in the house other than the room in which the victim is located)

3) Assault (by force OR threat of immediate injury)

“Force” = ANY amt of force that is sufficient to overcome victim’s resistance (e.g. chain snatching; BUT NOT pick pocketing b/c of no resistance)

Threats need to be of IMMEDIATE injury (e.g. “your money or your life”)

Threats of future harm = extortion/blackmail, NOT robbery

Question 13

When may a ∆ use nondeadly force in self-defense?

Answer 13

A ∆ may use non-deadly force, IF it is:

1) reasonably necessary
2) to protect against an immediate use;
3) of unlawful force against himself

Question 14

When may a ∆ use DEADLY force in self-defense?

NOTE: NY Distinction

Answer 14

IF he is facing an imminent threat of:

(i) death; OR
(ii) serious bodily injury ..

BUT…

1) The “Initial Aggressor”Rule: a ∆ may NOT use deadly force if he is the initial aggressor (i.e. he started the fight)

EXCEPTION: the initial aggressor can “regain” his right to use deadly force IF:

(i) he withdraws from the fight and communicates the withdrawal to the other person; OR
(ii) the victim suddenly escalates a nondeadly fight into a deadly one

NY DISTINCTION: in NY, the initial aggressor must withdraw before using deadly force, EVEN IF the other party suddenly escalates a nondeadly fight into a deadly fight

2) The Retreat Rule: majority rule is that ∆ retreat is NOT required before using deadly force in self-defense

NY DISTINCTION: ∆ must retreat, UNLESS (i) ∆ cannot retreat in complete safety; OR (ii) ∆ is in his home

Question 15

What are 2 elements of CL arson?

Answer 15

1) the malicious burning;

Malice = intentional burning OR reckless disregard of a substantial and unjustifiable harm

“Burning” reqs material wasting (“scorching” is not enough) of the bldg (structure, porch, etc)

2) of a dwelling of another

Most jx have changed dwelling to “bldg”

NY DIST:

Arson 3

(i) Burning a building
(ii) Mental state. Intent

Question 16

How can an accomplice withdraw to avoid criminal liability?

NOTE: NY Distinction

Answer 16

Depends on how the accomplice assisted the principal…

1) Encourager: can withdraw simply by repudiating the encouragement BEFORE the crime is committed
2) Aider: must EITHER neutralize the assistance OR otherwise prevent the crime from happening (e.g. by calling the cops)

NY DISTINCTION: In NY “renunciation” is an affirmative defense (burden is on ∆)

The accomplice MUST make a substantial effort to prevent the commission of the crime

Question 17

Crim Procedure topics

Answer 17

(1) Search and seizure/ 4A

Reasonable expectation of privacy in place/item searched

(2) Confessions/ Miranda/ 5A
(3) Right to Counsel/ 6A

Question 18

What are the 3 elements ofCL embezzlement?

Answer 18

1) the conversion of personal property of another;
2) by a person ALREADY in lawful possession of that property;

Cf. w/ larceny: here the ∆ must ALREADY have lawful possession of the property b4 a taking can be considered embezzlement

Cf. w/ false pretenses: here ∆ already has RIGHTFUL possession (there is no inducement by a false stmt like with false pretenses OR larceny by trick)

“Lower echelon” folks won’t have this access

3) w/ the specificintent to defraud (i.e. req’d mental state)

NOTE: if the ∆ intends to give the EXACT property back in the EXACT form, he does NOT have the intent to defraud

Question 19

Aerial surveillance and rights under each?

Answer 19

(1) Home

Prot: Highest protection

(2) Factory/ business -

Prot: Less privacy

(3) Open fields - any

Prot: No 4A needed

Question 20

What are the 8 exceptions to the warrant requirement of the 4th Am?

Answer 20

“ESCAPIST”

1) Exigent circumstance
2) Search incident to arrest
3) Consent
4) Automobile
5) Plain view
6) Inventory
7) Special needs
8) Terry “stop and frisk”

Question 21

What are 5reqs for the”search incident to arrest”exception to the warrant requirement of the 4th Am?

NOTE: NY Distinction

Answer 21

1) A valid/lawful arrest (“custodial arrest”)
2) Justifications of officer safety; AND the need to preserve evidence
3) The search must be contemporaneous in time AND place w/ the arrest
4) The search must be w/in the “wingspan” (i.e. body, clothing, and containers w/in the arrestee’s immediate cntrl) WITHOUT REGARD TO the offense for which the arrest was made

NY DISTINCTION: to search containers w/in the wingspan, an officer MUST suspect that the arrestee is ARMED

5) To search automobile incident to an arrest, officer MUST

Search w/in a permissible scope, including the interior cabin of the car (and closed containers therein), BUT not the trunk

“Secured” arrestee: once an officer has secured an arrestee (i.e. handcuffed and put in back of squad car), the officer can search the arrestee’s vehicle ONLY if she has reason to believe that the vehicle MAY CONTAIN evidence RELATING TO the crime for which the arrest was made

NY DISTINCTION: once the occupant is out of the car, police CANNOT search containers inside the vehicle to look for weapons or evidence of crime

Question 22

When is a search or seizure governed by the 4th Am?

Answer 22

A search/seizure is governed by the 4th Am when…

1) It’s conducted by a gov’t agent; AND

(i) Publicly paid police officers (on- or off-duty)
(ii) Private citizens ONLY IF they are acting at direction of police
(iii) Private security guards ONLY IF they are deputized by the pwr to arrest
(iv) Public school administration (e.g. principals, etc)

2) The search/seizure was in an area protected by the 4th Am; AND

4th Am protects individuals from unreasonable search/ seizure of…

(i) Persons (i.e. bodies)
(ii) Houses (inc. hotel rooms; “curtilage,” which is an area of domestic use immediately surrounding the house,like the backyard)
(iii) Papers (e.g. personal correspondence) (iv) Effects (i.e. personal belongings)

4th Am does NOT protect objects knowingly exposed to 3d parties, like…

(i) Paint scrappings on the outside of a car (ii) Account records at a bank (iii) Anything that can be seen from airspace (iv) Garbage left on the curb (v) Voice
(vi) Odors (including odors emanating from car or luggage) (vii) Handwriting styles
(viii) Anything that can be seen IN or ACROSS the “open field”

3) The gov’t agent EITHER:
(i) PHYSICALLY INTRUDED on a protected area/item to obtain information (e.g. GPS tracking device on a car); OR
(ii) VIOLATED an individual’s reasonable expectation of privacy in a protected area/item

To meet this std, an individual must show

(a) an ACTUAL or SUBJECTIVE expectation or privacy; AND(b) the privacy expectation is “one that society recognizes as reasonable”

A police search is presumptively unreasonable WHEN it they use a device that is NOT in the public use to explore the details of a home that officers could NOT have known w/o physical intrusion

Question 23

When does 4A Miranda right attach and when does 6A Massiah right attache?

Answer 23

4A/ Miranda - pre-charge

6A/ Masshiah - post-charge (after judicial proceedings begin)

Question 24

What is the procedure for a suspect to invoke his Miranda rights?

Answer 24

1) Right to remain silent: a suspect must UNAMBIGUOUSLY invoke her right to remain silent

Once a suspect invokes the right to remain silent, police must “scrupulously honor” the invocation (i.e. they can’t badger the suspect)

Police detectives MUST wait a sig. pd of time before re-initiating questioning AND must first obtain a valid waiver

2) Right to counsel: a suspect must make a request that’s SUFFICIENTLY clear that a reasonable officer would understand the stmt as a request for counsel Once a suspect “lawyer’s up”, ALL interrogation must cease UNLESS initiated by the suspect

Unlike the 6th Am, the 5th Am right to counsel is NOT offense-specific; THUS, interrogation must stop for ALL TOPICS (oustide presence of atty) once right to counsel is invoked

Request for counsel expires 14 days after suspect is RELEASED from custody

Waiver of the Miranda right to counsel after this pd is VALID, provided it’s knowing, intelligent and voluntary

Question 25

What isthe 6th Am’s Right to Counsel AND when does it attach?

Answer 25

Express const. g’tee that attaches ONLY WHEN ∆ is formally charged (NOT upon arrest!)

Applies at “all critical stages” of the prosecution that take place after formal charges (arraignment, probable cause hearings, police interrogation, etc)

The g’tee is “offense specific”: applies ONLY to the offense with which the ∆ has been FORMALLY charged (i.e. provides NO protection for uncounseled interrogation for other uncharged criminal activity)

Incriminating stmts obtained from the ∆ by law enforcement abt charged offenses violate the 6th Am IF those stmts are deliberately elicited AND ∆ did not knowingly, intelligently, and voluntarily waive his right to have his atty present

**NOTE: a stmt obtained in violation of a ∆’s 6th Am Right to Counsel MAY be used to (only) IMPEACH the ∆’s contrary trial testimony

NOTE: Right to counsel is available in MISDEMEANOR cases ONLY IF imprisonment is ACTUALLY imposed

Thus, for misdemeanor crimes w/o IMPRISONMENT, a criminal ∆ CAN BE DENIED COUNSEL

Question 26

Under what 3 circumstances does double jeopardy attach?

Answer 26

1) Jury trial: when the jury is SWORN

NOTE: the state MAY retry a ∆ EVEN IF DJ attaches when a jury trial ends in a hung jury

2) Bench tiral: when the first witness is SWORN
3) Guilty plea: when the ct accepts the ∆’s plea UNCONDITIONALLY

Question 27

What is double jeopardy?

NOTE: NY Distinction

Answer 27

DJ = “…nor shall any person be subject for the SAME OFFENSE to be twice put in jeopardy of life or limb by the SAME SOVEREIGN”

1) Same offense req:

Federal rule: 2 offenses are NOT the “same” if EACH contains an element THAT THE OTHER DOES NOT Greater and “lesser-incl’d” offenses:2 offenses ARE the “same” offense if only ONE has an element not in the other

THUS, trial for greater offense bars retrial for lesser offense and vice versa

NY DISTINCTION: NY uses the “trxn test,” which reqs that a ∆ be charged w/ all offenses arising from a SINGLE TRXN UNLESS…

(i) the offenses have subt. different elements; (ii) ea. offense contains an element NOT in the other AND prevents different harms;
(iii) one is for criminal possession and the other is for criminal USE; OR
(iv) ea. offense involves harm to a different victim

2) Same sovereign req: DJ bars retrial for the same offense by the SAME sovereign ONLY

NOT same sovereigns (i) State and federal gov’ts
(ii) Different states

SAME sovereign
State and municipalities w/in that state

3) More serious offense

Can’t be charged a second time for a more serious offense, even if the second trial results in conviction of equal or lesser offense.

Question 28

When must jury verdicts in criminal trials be unanimous? NOTE: NY Distinction

Answer 28

Jury trials MUST be UNANIMOUSONLY IF 6 jurors are used

Verdicts in 12-person juries need NOT be unanimous

NY DISTINCTION: jury verdicts MUST be unianimous

Question 29

*When can deadly force be used in defense of property?

Answer 29

General rule: deadly force may NOT be used to defend property

EXCEPTION: an OCCUPANT may use deadly force inside her DWELLING when:

(i) an intruder has gained entry in a tumultuous manner; AND
(ii) the occupant reasonably believes that the use of deadly force is NECESSARY to prevent a personal attack on herself or someone else in the dwelling

Question 30

What are the 3 vicarious liability theories under CL felony murder?

NOTE: NY Distinctiona

Answer 30

1) “Proximate cause” theory (majority rule) = if one of the co-felons proximately causes the victim’s death, then ALL of the other co-felons will be guilty of felony murder, EVEN IF the actual killing is committed by a 3d party (e.g. a bystander, a police officer, etc)

NY DISTINCTION: this is the approach followed in NY

2) “Agency” theory = felony murder doctrine applies ONLY IF the killing is committed by one of the co-felons

3*) Redline case - criminal liability for felony murder cannot attach when the person killed is one of the co-felons

Question 31

What is “Fruit of the Poisonous Tree” evidence AND how can “tainted fruit” be admitted?

Answer 31

Derivative evidence (or secondary evidence) obtained by exploiting PRIOR unconst conduct

NOTE: Like direct evidence, FOTPS evidence is INADMISSIBLE in the prosecution’s case-in-chief

To admit “tainted fruit”, prosecutors MUST show a break in the causal link b/t the original illegality and the criminal evidence that is LATER discovered, which can be done by…

1) “Independent Source” doctrine: applies where there is a source for the discovery and seizure of the evidence that is DISTINCT from the original illegality
2) “Inevitable Discovery” doctrine: applies where the evidence would NECESSARILY have been discovered thru lawful means
3) “Attenuation” doctrine: admits derivative evidence where the PASSAGE of time and INTERVENING events “purge the taint” of the original illegality and RESTORE the ∆’s free will (e.g. ∆ is illegally arrested on Fri and let go, then returns the NEXT WEEK to make a confession)

Question 32

What factors do judges consider in admin of a speedy trial? What is remedy?

Answer 32

Factors

(i) Length of the delay;
(ii) Reason for the delay;
(iii) Whether the defendant asserted his right; and
(iv) Prejudice to the defendant.

Remedy: Dismissal with prejudice.

Question 33

What’s the purpose of a prelim hearing?

Answer 33

To determine whether probable cause for detention exists.

Question 34

What are the 3 elements of CL burglary?

Answer 34

1) Breaking and entering;
“Breaking” = creating/enlarging an opening by at least minimal force (e.g. opening a window/door; NOT entering an already open window)

Constructive “breaking” = when entry is gained thru fraud, threats OR intimidation

“Entry” = means SOME part of the ∆’s body must enter the bldg

2) into the dwelling of another at night; “Dwelling” = structure where someone regularly sleeps
3) with the specific intent to commit a felony inside Intent to rob, steal, rape, assault, kill, etc

NOTE: doesn’t matter if you ULTIMATELY complete the offense (forming intent alone is enough)

Question 35

What are the 3 elements of CL larceny?

Answer 35

1) Trespassory taking and carrying away;

The property must be wrongfully/unlawfully MOVED (i.e. “asportation”)

NOTE: Counts even if movement is slight

2) Personal property of another;

Turns on who had lawful custody If ∆ has lawful custody of the property, then he CANNOT be guilty of larceny; BUT ∆ CAN be guilty of larceny, EVEN IF he owns the property, if someone else had lawful custody

3) with the specificintent to permanently retain the property (steal)

If ∆ intends to give the property BACK, then it’s not larceny

The Erroneous Takings Rule: A taking under a claim of right is NEVER larceny, EVEN IF the ∆ erroneously believes the property is his

NOTE: if a ∆ wrongfully takes property, but w/o the intent to steal, he will NOT be guilty of larceny; BUT, if the ∆ LATER forms the intent to steal, the initial trespassory taking is considered to have “continued” and he WILL be guilty of larceny (i.e. an

EXCEPTION to the concurrence principle)

Question 36

What does guilty plea not stop?

Answer 36

(1) Civil action claim

(2) Challenge of a search