The Bar--Criminal Law and Criminal Procedure Flashcards
When can an omission be a voluntary act?
You need 3 things: 1. legal duty to act by-- Statute Contract Status Relationship Voluntary assumption of care Creation of the Peril
- knowledge of facts that give rise to duty
- ability to help
Specific Intent
Desire/Intent to achieve a specific result
What are the (11) specific intent crimes
assault 1st degree premeditated murder larceny embezzlement false pretenses robbery forgery burglary solicitation conspiracy attempt
AMBLESCARFF–
Which defenses are available ONLY to specific intent crimes?
Voluntary Intoxication
Mistake of Fact
Malice (and the Malice Crimes)
Acting intentionally or with reckless disregard of an obvious or known risk.
(Murder, Arson)
General Attempt (and the General Attempt Crimes)
The defendant is generally aware of the factors constituting the crime, but need not intend a specific result)
Battery, Forcible Rape, False Imprisonment, Kidnapping
Strict Liability
No mental state needed
Crimes against public welfare, Statutory Rape
MPC Mental States
Purpose, Knowledge, Recklessness, Negligence, SL
Purpose (MPC mens rea)
with conscious desire to achieve a particular result
Knowledge (MPC mens rea)
aware of what he is doing—when D is aware that it is practically certain that his conduct will cause the result
Recklessness (MPC mens rea)
aware of substantial and unjustifiable risk but consciously disregards that risk
Negligence
D should have been aware of substantial and unjustifiable risk
Accelerating Cause
Where one action accelerates the result, that counts as an actual cause even tho but for that action the same result would have occured
Concurrence Principle
D must have the required mental state at the same time in which he engages in the culpable act (see exceptions–larceny)
Battery–elements
the unlawful application of force to another resulting in either bodily injury or offensive touching (general intent)
Assault
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)
Murder (and 4 ways to satisfy mens rea)
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.
deadly weapon rule
intentional use of deadly weapon crates an inference of intent to kill
transferred intent rule
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)
First v. Second Degree Murder
First: any intentional killing committed with premeditation and deliberation (cool collected)
Second: all other, plus depraved heart murder
Felony Murder and its common limitations
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
Proximate Cause Theory of Vicarious Liability for Felony Murder
Co-felons are guilty of felony murder even where killing caused by third party
Agency theory of vicarious liability for felony murder
co-felons guilty of felony murder only where killing is committed a co-felon
Voluntary Manslaughter
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)
Involuntary Manslaughter
A killing committed during commission of crime to which felony murder doctrine does not apply OR unintentional killing committed with criminal negligence or recklessness
False Imprisonment-criminal
the unlawful confinement of a person w/o their consent (general intent)
Kidnapping
False imprisonment that involves moving or concealing the victim in a secret place (general intent)
Forcible rape
sexual intercourse w/o consent accomplished by force, threat of force, or when victim is unconscious (general intent)
Stat Rape
sexual intercourse with someone under age of consent (SL–but MPC reasonable mistake of age defence)
Larceny
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)
Embezzlement
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)
False Pretences
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
Larceny by Trick
where defendant obtains custody (not title) as a result of a false statement
title? false pretences
Robbery
a larceny from someone’s person or presence by force or threat of immediate injury
specific intent to steal
Forgery
making or altering a writing so that it is false (specific intent to defraud)
Burglary
Breaking and entering the dwelling o another at night with intent to commit a felony inside
Arson
malicious burning of the dwelling of another
scorching is not enough but charring is
Jurisdiction
crime may be prosecuted in any state where an act that was party of the crime took place; or the result took place
Burden of Proof
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
When can an omission by the basis for criminal liability?
- Legal Duty to Act—(6 ways)
- Knowledge of Facts giving rise to the duty
- Ability to help
What 6 duties give rise to affirmative need to act such that omission could give rise to criminal liability?
- by statute (tax returns, professionals etc)
- by contract (baby sitter, doctor)
- by status relationship between D and V
- *** Parent/Child, Spouse/Spouse
- By voluntary assumption of care (D starts rescuing)
- by creation of the peril
Possession of Contraband
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
Receipt of Stolen Propery
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
Accomplice
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.
Scope of accomplice liability?
Accomplice is liable for all crimes he aided or encouraged, and all foreseeable crimes committed along with aided crime.
Withdrawal of an Accomplice
for an encourager: repudiating the encouragement before crime is committed
aider: neutralize or prevent (notify authorities)
Corporate Liability
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
solicitation
Asking someone to commit a crime with intent that it be committed. Specific intent. Complete when asked. `o
Conspiracy
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
Wharton Rule
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.
Pinkertron Liability
D will be liable for other crimes committed by his co-conspirators so long as they were
- in furtherance of the conspiracy’s objectives, and were foreseeable.
Attempt
*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
Withdrawal from inchoate defences
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.
Merger Rule
Solicitation and Attempt merge with completed offense–cant be charged with both
Conspiracy does not merge
Defences
Insanity Mistake Infancy Voluntary Intoxication self defense necessity duress entrapment
McNaghten Test (majority) for Insantiy
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
MPC test for Insanity (Minority)
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
Insanity
A defense–2 tests
majority mcNaghten is purely cognitive and minority MPC is cog/volitional.
Relevant point is at time of crime.
Incompetency
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
Voluntary Intoxication
A defense to specific intent crimes only.
remember AMBLESCARFF and that conspiracy and solicitation and attempt are specific intent
infancy
no prosecution under 7,
under 14 rebuttable presumption against prosecution
over 14 prosecution allowed
Mistake of Fact
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
Mistake of Law
generally NOT a defence
Self Defense
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
Initial Aggressor Rule to Self Defence
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
Self Defense–requirement to retreat
Generally no req. to retreat.
Minority rule says you must retreat unless D cannot retreat in complete safety or he is in his home.
Self Defense–Reasonableness and Mistake
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
Use of Force to Prevent a Crime
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.
Use of deadly force by officer?
only where reasonable
Necessity
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
Duress
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
Entrapment
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.
Is a search or seizure covered by the 4th?
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
What items are protected v. not preotected by the 4th?
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
expectation of privacy
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
standing to challenge search and seizure
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
who has standing to search a car?
passengers in cars do not have standing/reasonable expectation of privacy to challenge search of vehicle
When does a search satisfy warrant requirement?
Issued by detached and neutral magistrate?
probable cause/particularity
good faith
properly executed
Probable Cause
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)
effect of officer good faith reliance on a defective warrant
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/
what happens when police encounter people while execute search warrant?
May detain occupants found within or immediateley outside the residence?
Knock and Announce Rule?
must–
UNLESS futile dangerous or it would inhibit the investigation
Exceptions to Warrant Requirement
ESCAPIST
Exigent circumstances search incident to arrest consent automobile plain view inventory special needs Terry (stop and frisk)
Exigent Circ
- evidence could disappear before warrant
- hot pursuit of fleeing felon. (any you can get stuff in plain view while persuit-ing)
- emergency aid exception–>when obj reasonable belief that someone needs help to address/prevent injury
Search incident to arrest
- lawful arrest
- contemoporary with arrest in time and plac
- area under you immediate control
no cell phone data.
may take DNA for serious offence
Automobile Search incident to arrest
- incident to arrest: may search passenger cabin/contianers but not Trunk
- 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
Consent
Voluntary—-need not be told you have right to say no.
In scope–
Apparent authority: police reasonably think you have consent over the area.
Consent to Searches and Shared Premises
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
Automobile Exception to Warrant Req.
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.
What happens when you search incident to arrest after pulling car over, but then see something that gives you r p/ cause?
you may acquire p/ cause after you pull car over
like if you see drugs in plain view
Plain View
lawful access to place from which item is seen
lawful access to the item itself
criminality of the item must be immediately apparent
Inventory Searches
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.
Terry Stops and Frisks
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.
When does Seizure occur
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
Terry Stops in Traffic Stops
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
protective sweeps:
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
Special Needs
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
Admissibility of evidence obtained in violation of 4th
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
Fruit of Poisonous Tree
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
Exceptions to Fruit of Poisonous Tree
Independent Source
Inevitable Discovery
Attenuation
(see other cards)
Independent Source
where there is a source of discovery distinct from original illegaility
Inevitable Disco.
evidence would inevitbly have been discovered by lawful means
Attenuation
so much passage of time and intervening events purge the taint.
When can you arrest someone
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
6th A right to counsel
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.
Custodial Interrogation
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.
Miranda Waiver
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.
Invocation of Miranda Rights
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.
Exlcusion and miranda
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.
Pretrial IDS
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!
`
bail
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
When don’t you need probably cause hearing?
when there was an indictment, or when the arrest was based on a warrant for arrest.
Jury
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.
IAC claims
- Deficiency–D must show that performance fell below an objective standard of reasonableness=serious errors
- Prejudice: D must show that but for the deficiency the result of the trial would have been different.
Pleas!
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
Sentence Enhancment
Any factor that increases state max or mandatory min sentence for crime must be found by JURY not judge.
Double Jeopardy
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?
- hung jury
- mistrial for manifest neccessity
- successful appeal (unless based on insufficience of evidence at trial)
- breach of plea deal.
Taking the 5th
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.
Immunity
P may grant use and derivative immunity. bars govt from using your testimony or anything derived from it to prosecute you.
