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Bar > The Bar--Criminal Law and Criminal Procedure > Flashcards

The Bar--Criminal Law and Criminal Procedure Flashcards

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1
Q

When can an omission be a voluntary act?

A 
You need 3 things:
1. legal duty to act by--
Statute
Contract
Status Relationship
Voluntary assumption of care
Creation of the Peril
  1. knowledge of facts that give rise to duty
  2. ability to help
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2
Q

Specific Intent

A

Desire/Intent to achieve a specific result

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3
Q

What are the (11) specific intent crimes

A 
assault
1st degree premeditated murder
larceny
embezzlement
false pretenses
robbery
forgery
burglary
solicitation
conspiracy
attempt

AMBLESCARFF–

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4
Q

Which defenses are available ONLY to specific intent crimes?

A

Voluntary Intoxication

Mistake of Fact

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5
Q

Malice (and the Malice Crimes)

A

Acting intentionally or with reckless disregard of an obvious or known risk.

(Murder, Arson)

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6
Q

General Attempt (and the General Attempt Crimes)

A

The defendant is generally aware of the factors constituting the crime, but need not intend a specific result)

Battery, Forcible Rape, False Imprisonment, Kidnapping

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7
Q

Strict Liability

A

No mental state needed

Crimes against public welfare, Statutory Rape

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8
Q

MPC Mental States

A

Purpose, Knowledge, Recklessness, Negligence, SL

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9
Q

Purpose (MPC mens rea)

A

with conscious desire to achieve a particular result

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10
Q

Knowledge (MPC mens rea)

A

aware of what he is doing—when D is aware that it is practically certain that his conduct will cause the result

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11
Q

Recklessness (MPC mens rea)

A

aware of substantial and unjustifiable risk but consciously disregards that risk

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12
Q

Negligence

A

D should have been aware of substantial and unjustifiable risk

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13
Q

Accelerating Cause

A

Where one action accelerates the result, that counts as an actual cause even tho but for that action the same result would have occured

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14
Q

Concurrence Principle

A

D must have the required mental state at the same time in which he engages in the culpable act (see exceptions–larceny)

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15
Q

Battery–elements

A

the unlawful application of force to another resulting in either bodily injury or offensive touching (general intent)

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16
Q

Assault

A

attempted battery; or

the intentional creation other than by mere words of a reasonable apprehension in the mind of the victim of imminent bodily harm (specific intent)

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17
Q

Murder (and 4 ways to satisfy mens rea)

A

the unlawful killing of another person with malice aforethought–

mental state satisfied in 4 ways:

Malice Aforethought–with intent to kill or cause serious bodily harm;

depraved heart (extreme reckless indifference to human life)

felony murder–during commission of inherently dangerous felony.

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18
Q

deadly weapon rule

A

intentional use of deadly weapon crates an inference of intent to kill

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19
Q

transferred intent rule

A

intent fulfilled–when D intends to harm one victim but accidentally harms a different one (applies to murder, battery, and arson) (cannot apply to attempts)

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20
Q

First v. Second Degree Murder

A

First: any intentional killing committed with premeditation and deliberation (cool collected)

Second: all other, plus depraved heart murder

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21
Q

Felony Murder and its common limitations

A

any killing caused during commission or attempt to commit a felony

1- D must have committed felony
2-felony is inherently dangerous
3. merger rule
4-killing took place during felony or immediate flight there from
4. foreseeable
5. victim was not a co-felon
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22
Q

Proximate Cause Theory of Vicarious Liability for Felony Murder

A

Co-felons are guilty of felony murder even where killing caused by third party

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23
Q

Agency theory of vicarious liability for felony murder

A

co-felons guilty of felony murder only where killing is committed a co-felon

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24
Q

Voluntary Manslaughter

A

A killing that would otherwise be murder, committed in the heat of passion upon adequate provocation

(needs—obj and subj provication, no time to cool off, no actual cooling off)

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25
Q

Involuntary Manslaughter

A

A killing committed during commission of crime to which felony murder doctrine does not apply OR unintentional killing committed with criminal negligence or recklessness

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26
Q

False Imprisonment-criminal

A

the unlawful confinement of a person w/o their consent (general intent)

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27
Q

Kidnapping

A

False imprisonment that involves moving or concealing the victim in a secret place (general intent)

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28
Q

Forcible rape

A

sexual intercourse w/o consent accomplished by force, threat of force, or when victim is unconscious (general intent)

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29
Q

Stat Rape

A

sexual intercourse with someone under age of consent (SL–but MPC reasonable mistake of age defence)

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30
Q

Larceny

A

A trespassatory taking and carrying away the person property of another with the intent to permanently retain the property.

(erroneous takings rule–a taking under claim of right is never larceny even if D is erroneous in belief that it is his)

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31
Q

Embezzlement

A

conversion of the personal property of another by a person already in a lawful possession of that property with the intent to defraud (specific intent to defraud)

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32
Q

False Pretences

A

obtaining title (not just custody) to the personally property of another by a false statement made knowingly with the intent to defraud

just custody–larceny by trick

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33
Q

Larceny by Trick

A

where defendant obtains custody (not title) as a result of a false statement

title? false pretences

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34
Q

Robbery

A

a larceny from someone’s person or presence by force or threat of immediate injury

specific intent to steal

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35
Q

Forgery

A

making or altering a writing so that it is false (specific intent to defraud)

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36
Q

Burglary

A

Breaking and entering the dwelling o another at night with intent to commit a felony inside

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37
Q

Arson

A

malicious burning of the dwelling of another

scorching is not enough but charring is

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38
Q

Jurisdiction

A

crime may be prosecuted in any state where an act that was party of the crime took place; or the result took place

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39
Q

Burden of Proof

A

In criminal cases–P must prove Every element BRD—so you CANNOT instruct the jury to presume that the required mental state exists if D committed act

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40
Q

When can an omission by the basis for criminal liability?

A
  1. Legal Duty to Act—(6 ways)
  2. Knowledge of Facts giving rise to the duty
  3. Ability to help
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41
Q

What 6 duties give rise to affirmative need to act such that omission could give rise to criminal liability?

A
  1. by statute (tax returns, professionals etc)
  2. by contract (baby sitter, doctor)
  3. by status relationship between D and V
  4. *** Parent/Child, Spouse/Spouse
  5. By voluntary assumption of care (D starts rescuing)
  6. by creation of the peril
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42
Q

Possession of Contraband

A

Possession= control for a period of time long enough to have opportunity to terminate possession

(need not be in actual possession–constructive is OK)

with knowledge of the possession and character of item

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43
Q

Receipt of Stolen Propery

A

Act: Receiving possession and control of stolen personal property. (if it was stolen and recovered from police in sting, it is not stolen for the purposes of this crime)

mens rea: Knowing that property has been obtained criminally by another party and with intent to permantnetly deprive the owner’s interest in property

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44
Q

Accomplice

A

The person who helps principal is an accomplice:

Act: aids or encourages principal

Mens rea: intent to assist the principal and with the intent that the underlying crime be committed.

** if the principal’s crime requires a mental state of recklessness or criminal (gross negligence) most jurisdictions hold an accomplice liable for intentional conduct that aids the principal and manifests the required recklessness or negligence.

**mere presence at scene is not enough. mere knowledge of crime is not enough.

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45
Q

Scope of accomplice liability?

A

Accomplice is liable for all crimes he aided or encouraged, and all foreseeable crimes committed along with aided crime.

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46
Q

Withdrawal of an Accomplice

A

for an encourager: repudiating the encouragement before crime is committed

aider: neutralize or prevent (notify authorities)

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47
Q

Corporate Liability

A

Corp agent engages in criminal conduct, corp and agent may be held liable where agent acted on behalf of corp and w/in scope of his office

when corp is liable for regulation offense–agents can be liable where they stand in responsible relation to situation causing danger

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48
Q

solicitation

A

Asking someone to commit a crime with intent that it be committed. Specific intent. Complete when asked. `o

49
Q

Conspiracy

A

An agreement between 2 or more people to commit a crime plus an overt act—mens rea= specific intent to enter into agreement and accomplish the objectives of the conspiracy.

*agreement can be express or implied.

**overt act = even mere preparation from Either co-conspirator

  • ** at common law you cant have 1 person conspiracy.–so if all others are acquitted, no crime
  • ***MPC: unilateral approach allows liability even where others acquitted or just pretending to agree
  • impossibility is NOT a defence to conspiracy
50
Q

Wharton Rule

A

When two or more people are necessary for commission for the substantive offense, no conspiracy unless more parties participate in the agreement than are neccessary for crime.

51
Q

Pinkertron Liability

A

D will be liable for other crimes committed by his co-conspirators so long as they were

  1. in furtherance of the conspiracy’s objectives, and were foreseeable.
52
Q

Attempt

A

*specific intent

Attempt requires an overt act that goes beyond mere preparation.

Common law test= the defendant must engage in conduct that gets dangerously close to the commission of a crime

MPC–substantial step–D must engage in conduct that constitutes a substantial step towards commission of crime, provided that conduct strongly corroborates actor’s criminal purpose

**you cannot attempt unintentional crimes that require recklessness, negligence, or felony murder

53
Q

Withdrawal from inchoate defences

A

Withdrawal generally is not a defense–>but a D who withdraws from a conspiracy will no longer be vicariously liable fro crimes committed by his co-conspirators prior to withdrawal.

54
Q

Merger Rule

A

Solicitation and Attempt merge with completed offense–cant be charged with both

Conspiracy does not merge

55
Q

Defences

A 
Insanity
Mistake
Infancy
Voluntary Intoxication
self defense
necessity
duress
entrapment
56
Q

McNaghten Test (majority) for Insantiy

A

The defendant must prove that he either
a. did not know that his conduct was wrong or, (b) did not understand the nature of his conduct.

**purely cognitive

57
Q

MPC test for Insanity (Minority)

A

D must establish that he lack the substantial capacity to either a) appreciate the criminality of his conduct or conform the conduct to the requirements of law.

*cognitive or volitional

58
Q

Insanity

A

A defense–2 tests
majority mcNaghten is purely cognitive and minority MPC is cog/volitional.

Relevant point is at time of crime.

59
Q

Incompetency

A

If AT trial D cannot understand the nature of the proceedings against him or assist his lawyer in preparation of defense, trial must be postponed until he regains competency

60
Q

Voluntary Intoxication

A

A defense to specific intent crimes only.

remember AMBLESCARFF and that conspiracy and solicitation and attempt are specific intent

61
Q

infancy

A

no prosecution under 7,

under 14 rebuttable presumption against prosecution

over 14 prosecution allowed

62
Q

Mistake of Fact

A

depends on mental state req of crime.

For Specific Intent–any mistake of fact, even an unreasonable one, will be a defense.

For Malice/General Intent–only reasonable mistake of law is defense/

SL–mistake of law is never a defense

63
Q

Mistake of Law

A

generally NOT a defence

64
Q

Self Defense

A

an individual may use non deadly force in self defense if he is without fault and reasonably believes that doing so is necessary to protect himself from the imminent use of unlawful force against himself.

an individual may use deadly force only if he is confronted with unlawful force is without fault and reasonable believes he is facing an imminent thrat of DEATH or SERIOUS Boldly injury

65
Q

Initial Aggressor Rule to Self Defence

A

D cannot use self defense if he is initial regressor–but may regain right to use force if he withdraws and communicates withdrawal to other person, or victim suddenly escalates a non deadly fight into a deadly one

66
Q

Self Defense–requirement to retreat

A

Generally no req. to retreat.

Minority rule says you must retreat unless D cannot retreat in complete safety or he is in his home.

67
Q

Self Defense–Reasonableness and Mistake

A

Where d makes a mistake about need to use self defense–>

reasonable mistake is complete defense

unreasonable mistake–majority–no defense, minority –mitigates but does not exonerate

68
Q

Use of Force to Prevent a Crime

A

non deadly force may be used if reasonable necessary to prevent any serious breach of peace

Deadly force can only be used to prevent a felony risking human life.

69
Q

Use of deadly force by officer?

A

only where reasonable

70
Q

Necessity

A

Conduct that is otherwise criminal is justifiable if D reasonably believed that conduct was neccessary to prevent a greater harm–>will never be available if D causes death to protect property, or where D creates the choice of evils

71
Q

Duress

A

it is a defense to criminal conduct if the D was coerced to commit a crime because of a threat from another person or imminent death of SBI to himself or close family member

**never a defenece to homicide–choice of human life

72
Q

Entrapment

A

Majority—D must prove the criminal design originated with the government, and he was not predisposed to commit the crime

Minority–subj–D must show that police activity was reasonably likely to cause innocent person to commit the crime in Q, predisposition irrelevant.

73
Q

Is a search or seizure covered by the 4th?

A

Was search by govt agent?

Was search or seizure of an area/item protected by the Fourth?

Did govt agent physically intrude or violate reasonable expectation of privacy?>

Does individual have standing

74
Q

What items are protected v. not preotected by the 4th?

A

Persons houses papers effects (curtilage0

Not: Public Observation Generally Obliterates Forth Amendment Protection.

Physical characteristics

Odors

Garbage

Open Fields

Financial Records

Air Space

Pen Registers

75
Q

expectation of privacy

A

must be subj and obj

actual or subj expectation of privacy, one that society recognizes as reasonable.

sensory enhancing device not in public use presumptively unreasonable

76
Q

standing to challenge search and seizure

A

own or reside in premises

overnight guests–for common areas or where they are staying–not hosts’s bedroom

NOT if they are there solely for business purposes

77
Q

who has standing to search a car?

A

passengers in cars do not have standing/reasonable expectation of privacy to challenge search of vehicle

78
Q

When does a search satisfy warrant requirement?

A

Issued by detached and neutral magistrate?
probable cause/particularity
good faith
properly executed

79
Q

Probable Cause

A

requires proof of a fair probability that contraband or evidence will be found in the area

(can use hearsay)

(can use informant’s tips—as long as based on totality of circ. police have confirmed sufficient to make common sense determination of pC)

80
Q

effect of officer good faith reliance on a defective warrant

A

Will save the deficiencies in probably cause or particularity

UNLESS- so not particular that officers could not reasonably have presumed it valid.

Unless–affidavit contains knowing or reckless falsehoods neccessary to p cuase finding

Unless magistrate was biased in favor of the P/

81
Q

what happens when police encounter people while execute search warrant?

A

May detain occupants found within or immediateley outside the residence?

82
Q

Knock and Announce Rule?

A

must–

UNLESS futile dangerous or it would inhibit the investigation

83
Q

Exceptions to Warrant Requirement

A

ESCAPIST

Exigent circumstances
search incident to arrest
consent
automobile
plain view
inventory
special needs
Terry (stop and frisk)
84
Q

Exigent Circ

A
  1. evidence could disappear before warrant
  2. hot pursuit of fleeing felon. (any you can get stuff in plain view while persuit-ing)
  3. emergency aid exception–>when obj reasonable belief that someone needs help to address/prevent injury
85
Q

Search incident to arrest

A
  1. lawful arrest
  2. contemoporary with arrest in time and plac
  3. area under you immediate control

no cell phone data.
may take DNA for serious offence

86
Q

Automobile Search incident to arrest

A
  1. incident to arrest: may search passenger cabin/contianers but not Trunk
  2. once detainee has been secured (handcuff in car) officer can search vehicle only if she has reason to believe the car contaons evidence pertaining to the reason for arrest
87
Q

Consent

A

Voluntary—-need not be told you have right to say no.

In scope–

Apparent authority: police reasonably think you have consent over the area.

88
Q

Consent to Searches and Shared Premises

A

Adults who share resident==anyone can consent to search of common areas

co-tenants both present: if one objects–they prevail
–but if objecting co-tenant is removed, police may rely on remaining one

89
Q

Automobile Exception to Warrant Req.

A

Police need p cause to believe contraband or evidence of crime will be found in vehicle.

may search entire vehicle–any package that may reasonably contain the item.

90
Q

What happens when you search incident to arrest after pulling car over, but then see something that gives you r p/ cause?

A

you may acquire p/ cause after you pull car over

like if you see drugs in plain view

91
Q

Plain View

A

lawful access to place from which item is seen

lawful access to the item itself

criminality of the item must be immediately apparent

92
Q

Inventory Searches

A

after booking of arrestees, or impounding of vehicles

constitutional provided they are regulations are reasonable in scope, comply with regulations, search conducting in good faith.

93
Q

Terry Stops and Frisks

A

Brief detention or seizure (see defn) for purpose of investigating suspicious conduct:

Frisk: bat down of body for weapons, justifed by officer’s believe you are armed and dangerous.

–may seize a weapon—only other if plain feel w/o manipulating.

need reasonable suspicion—specific and articulable facts that inform belief that criminal activity is present; and
–that armed and dangerous.

94
Q

When does Seizure occur

A

an individual is seized for 4th A purposes when based on totality of circ. he would not feel free to leave or decline Q.

Ask:

weapon?
tone and demeanor?
told she had right to refuse

if a police is chasing you you are only seized one you submit to authority by stopping or if officer physically restrains you

95
Q

Terry Stops in Traffic Stops

A

can make both driver and passenger leave car

either can challenge

dog sniffs are OK if they do not unreasonable prolong encounter.

may search passenger area limited to areas that could hide a weapon

96
Q

protective sweeps:

A

may search residence of in home arrest for criminal confederates whose presence may threaten officer safety

no need for p. cause or reasonable suspicion for places adjoining place of arrest from which attack could be immediately launced

more remote area: need additional facts to show that officer’s threatened

97
Q

Special Needs

A

drug testing of RR Employee after accident, by customs officers, public school children in extra school activities

Parolees

School searches–where reaosnable and not overly intrusive in light of age/sex/etc

govt employees desk and files if reasonable

border searches—(no rights)

where law enforcement is not primary purpose–may set u check point to check for drunk drivers

98
Q

Admissibility of evidence obtained in violation of 4th

A

Cannot use unlawfully obtained evidence in case in chefi–only to impeach on cross

knock and announce violations dont result in supporession

police error must be deliberate, reckless, or gross negligence

reasonably mistakes in search warrant dont result in suppressiokn

99
Q

Fruit of Poisonous Tree

A

Physical and testimonial evidence obtained by exploiting a prior unconstituional conduct is fruit of the poisonous tree and is not admissible in case-in-cheif

100
Q

Exceptions to Fruit of Poisonous Tree

A

Independent Source
Inevitable Discovery
Attenuation

(see other cards)

101
Q

Independent Source

A

where there is a source of discovery distinct from original illegaility

102
Q

Inevitable Disco.

A

evidence would inevitbly have been discovered by lawful means

103
Q

Attenuation

A

so much passage of time and intervening events purge the taint.

104
Q

When can you arrest someone

A

When you ave probably cause that they committed ANY offence.

No warrant in public place

need warrant in their home.

Need warrant and search warrant for arrest in someone else’s home

105
Q

6th A right to counsel

A

Attaches when D is formally charged (this is AFTER arrest)

applies at all critical stages–arraignment, hearings, police interrogation plea bargain

Offence Specific–applies only to crimes with which D is formally charged–not for uncharged activities.

106
Q

Custodial Interrogation

A

Custody:

a reasonable person would have felt she was not at liberty to end the interrogation and leave and;

environment was inherently coercive (like station house

age is relevant.

Interrogation:

any conduct police knew or should have known was likely to elicit an incriminating responce.

not just a spontanous statement from the D.

107
Q

Miranda Waiver

A

Must be knowing and intelligent: must understand the nature of rights and consequences of abandonment.

must be voluntary–not product of police coercion

Waiver does not have to be express–can be epxressed by course of conduct that indicates desire to speak (such as speaking)

P bears burden of proof to show wiaver by proponderance of evidence.

108
Q

Invocation of Miranda Rights

A

Silence:

unamibuous
must be scrupulously honored. *no badgering and must wait before reinitating)

Counsel:
sufficiently clear that reasonable officer would understand it—once invoked ALL q must stup unless initiated by suspect.
NOT OFFENCE SPECIFIC> NO Q for ALL TOPICS.

request expires 14 days later and then they can try again.

109
Q

Exlcusion and miranda

A

Statements may not be used in case-in-chief,
only for impeachment

no need to suppress PHYSICAL fruits of poisonous miranda violation. (ie gun found due to statement)

where statements were improperly admitted: verdict will stand IF error was harmless BRD, bc D could have been convicted w/o the evidence.

110
Q

Pretrial IDS

A

line ups
show ups
photo array

no 5th amendment right to counsel
Yes 6th amendment if it is after charging (but not for a photo array)

may violate DP if unneccesarily suggesting and creates substntial liklihood of misID.

remedy: exclusion of in court ID. unless ID has independent source. like it was her cousin!

`

111
Q

bail

A

set at first appearance:

no greater that neccessary to ensure accused’s presence at trial; but bail may be denied and the accused detained pending trial based on proof of danger to the community

112
Q

When don’t you need probably cause hearing?

A

when there was an indictment, or when the arrest was based on a warrant for arrest.

113
Q

Jury

A

Criminal D have right to jury when maximum authorized sentence exceeds 6 months

Cant have fewer than 6 jurors.

Where 6, must be unanimous.

Where>6 need not be unanimous.

must represent fair cross section of the community

cannot challenge for gender and race.

114
Q

IAC claims

A
  1. Deficiency–D must show that performance fell below an objective standard of reasonableness=serious errors
  2. Prejudice: D must show that but for the deficiency the result of the trial would have been different.
115
Q

Pleas!

A

Must be voluntary and intelligent:

Judge must do a plea taking colloquy.–in open court, on the record, which address 1. the nature of the charges including elements, and 2: the consequences of plea (waiving right to trial)

withdrawal of the plea: involuntary, based on IAC that he WON, or where lawyer failed to tell client that plea ran risk of deporation ,and had he known rejecting plea

116
Q

Sentence Enhancment

A

Any factor that increases state max or mandatory min sentence for crime must be found by JURY not judge.

117
Q

Double Jeopardy

A

Attach?

for jury trial when jury is sworn.
For bench trial when first W is sowrn.
For guilty plea when court accepts unconditionaly

NOT IN CIVIL CASES.

Attaches for same offence–2 offences are not same when each contains elemnt the other doesnot.
(are same if one includes ALL of the other)

Prosecution of Greater precludes later prosecution of lesser included. And Prosecution for lesser included also precludes prosecution for greater.

What courts?
–only bars re litigation in same soverign—state/fed? no. different states? no. States and municipalities==Yes.

When CAN you permit a new trial?

  1. hung jury
  2. mistrial for manifest neccessity
  3. successful appeal (unless based on insufficience of evidence at trial)
  4. breach of plea deal.
118
Q

Taking the 5th

A

Anyone can plead the 5th.

asserted in any proceeding where someone testifies under oath.

P cannot comment negatively on someone’s failure to testify
–except: P may comment on noncustodial silence during interrogation of someone who has not invoked Miranda.

once you testify you cannot take the 5th for matters in the scope on cross.

119
Q

Immunity

A

P may grant use and derivative immunity. bars govt from using your testimony or anything derived from it to prosecute you.

Bar (14 decks)

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