Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
524 Cards in this Set
- Front
- Back
- 3rd side (hint)
|
Larceny consists of:
|
* [1] A Taking; [2] And carrying away; [3] Of tangible personal property; [4] Of another; [5] By trespass; [6] With intent to permanently deprive
|
[1] A taking of (obtaining control); [2] And carrying away (asportation – slight movement enough); [3] Of tangible personal property (excluding realty, services, and intangibles, but including written instruments embodying intangible rights such as stock certificates); [4] Of another with possession; [5] By trespass (without consent or by consent induced by fraud); [6] With intent to permanently deprive that person of her interest in the property (must exist at time of taking or it’s not larceny).
|
|
|
What elements does arson contain?
|
* [1] Malicious; [2] Burning; [3] of the dwelling; [4] of another
|
[1] Malicious = intentional or with reckless disregard of an obvious risk; [2] Burning = requiring some damage to the structure caused by fire. No water damage, no smoke damage, and no explosions (unless it causes the fire). [3] No barns, no discos. BUT, MBE questions may assume that it can apply to structures other than dwellings; [4] You can’t own it
|
|
|
What is embezzlement?
|
* [1] the fraudulent; [2] Conversion; [3] of Personal Property; [4] of another; [5] By a person in lawful possession of that property
|
[1] the fraudulent; [2] Conversion (i.e., dealing w/ the property in a manner inconsistent w/ the arrangement by which Δ has possession); [3] of Personal Property; [4] of another; [5] By a person in lawful possession of that property
|
|
|
What are exclusions from accomplice liability?
|
[1] members of a protected class; [2] necessary parties not provided for*; [3] withdrawal
|
[2] e.g., statute making sale of heroin illegal but doesn’t provide punishment for purchaser. No liability for purchaser.
|
|
|
What is the standard for M’Naghten Rule?
|
* Δ is entitled to acquittal only if he had a mental defect that caused him to either: [1] not know that his act would be wrong; or [2] not understand the nature and quality of his actions. Loss of control b/c of mental illness is not a defense.
|
At the time of his conduct, the Δ lacked the ability to know wrongfulness or understand quality of his actions.
|
|
|
Robbery consists of:
|
* [1] A taking; [2] of personal property of another; [3] from the other’s person or presence (including anywhere in his vicinity); [4] By force or threats of immediate death or physical injury to the victim, a member of his family or some person in victim’s presence; [5] with the intent to permanently deprive him of it. (3, 4, 5 are assault)
|
Robbery = Larceny + Assault
|
|
|
What are the elements of false pretenses?
|
* [1] Obtaining title; [2] to personal property of another; [3] By an intentional false statement of past or existing fact (false promise to do something in future will not ground liability); [4] with intent to defraud the other.
|
Victim must actually be deceived by, or act in reliance on, the misrepresentation
|
|
|
What is the standard for ALI or MPC Test?
|
* (modern trend). A Δ is entitled to acquittal if he had a mental disease or defect, and as a result, he lacked the substantial capacity to either: [1] appreciate the criminality of his conduct; or [2] conform his conduct to the requirements of law.
|
Δ lacked ability to conform his conduct to requirements of law.
|
|
|
What is the standard for Irresistible Impulse Test?
|
* Δ is entitled to acquittal only if, b/c of a mental illness, he was unable to control his actions or conform his conduct to the law.
|
Δ lacked capacity for self-control or free choice
|
|
|
What is the standard for Durham (or New Hampshire) Test
|
* Δ is entitled to acquittal if the crime was the product of his mental illness. Broader than M’Naghten or Irresistible Impulse tests.
|
Δ’s conduct was product of a mental illness.
|
|
|
What crimes merge?
|
Solicitation & attempt
|
|
|
|
What crime does not merge?
|
Conspiracy
|
|
|
|
What are the elements of a crime?
|
Physical act, mental act, and concurrence of act and mental state. Might also require proof of result and causation
|
|
|
|
What is a physical act?
|
Bodily movement.
|
|
|
|
What are bodily movements that do not count as a physical act?
|
[1] Conduct which is not product of your own volition; [2] reflexive or compulsive act – epilepsy; [3] conscious or sleep-walking (but does not include falling asleep at wheel)
|
|
|
|
Failure to act gives rise to liability only if:
|
[1] specific duty to act; [2] Δ has knowledge of facts giving rise to duty to act; and [3] it is reasonably possible to perform the duty
|
|
|
|
A legal duty to act can arise from:
|
[1] statute (tax); [2] contract (lifeguard); [3] relationship between Δ and victim (parent/child and spouses); [4] voluntary assumption of care by Δ for victim; [5] creation of peril for victim by Δ
|
|
|
|
What is the law concerning Good Samaritan?
|
There is no general Good Samaritan law.
|
|
|
|
What are the major Specific Intent crimes?
|
Inchoate: [1] Solicitation; [2] Attempt; [3] Conspiracy… [4] 1st Degree premeditated murder; [5] Assault; [6] Larceny & robbery; [7] Burglary… Defraud: [8] Forgery; [9] False Pretenses; [10] Embezzlement
|
|
|
|
What is the intent required for Solicitation?
|
Intent to have the person solicited commit the crime
|
|
|
|
What is the intent required for Attempt?
|
Intent to complete the crime
|
|
|
|
What is the intent required for Conspiracy?
|
Intent to have the crime completed?
|
|
|
|
What is the intent required for 1st Degree Premeditated Murder?
|
Premeditation
|
|
|
|
What is the intent required for Assault?
|
Intent to commit a battery
|
|
|
|
What is the intent required for Larceny & Robbery?
|
Intent to permanently deprive the other of his interest in the property taken.
|
|
|
|
What is the intent required for Burglary?
|
Intent to commit a felony in the dwelling.
|
|
|
|
What is the intent required for Forgery?
|
Intent to defraud
|
|
|
|
What is the intent required for False Pretenses?
|
Intent to defraud
|
|
|
|
What is the intent required for Embezzlement?
|
Intent to defraud
|
|
|
|
Attempt is a ______ crime even when the crime attempted _______
|
Specific intent. Is NOT.
|
|
|
|
What crimes require Malice? What is the standard?
|
Common law murder and Arson. A reckless disregard of an obvious or high risk that the particular harmful result will occur.
|
|
|
|
Do defenses (give an example) to specific intent crimes apply to malice crimes?
|
No. e.g., voluntary intoxication.
|
|
|
|
What is the catch-all mental state? What is its definition?
|
General Intent. It requires an awareness of all factors constituting the crime. The Δ just needs to be aware of a high likelihood that the circumstances will occur.
|
|
|
|
What can the jury use to infer the required general intent?
|
The doing of the act.
|
|
|
|
What crimes does transferred intent apply to? What crimes doesn’t it apply to?
|
Applies to homicide, battery, and arson. Does not apply to attempt.
|
|
|
|
How many crimes are involved in cases relating to transferred intent?
|
Two. E.g., Murder for the person you killed and attempted murder for the person you tried to kill.
|
|
|
|
Can you transfer defenses?
|
Yes.
|
|
|
|
Can you transfer mitigating circumstances?
|
Yes
|
|
|
|
What is a hint for analyzing strict liability criminal cases?
|
If the crime is an administrative, regulatory, or morality area, and you read the statute and don’t see any adverbs (e.g., knowingly, recklessly) assume they want it to be strict liability.
|
|
|
|
Under the MPC, if the intent is _____ or higher, it’s murder.
|
Reckless.
|
|
|
|
When a statute requires that the Δ act _________, __________, or ________, a subjective standard is used.
|
Purposely, knowingly, or recklessly.
|
|
|
|
Define purposely
|
When a person’s conscious object is to engage in certain conduct or cause a certain result.
|
|
|
|
Define knowingly
|
When a person is aware that his conduct is of a particular nature or knows that his conduct will necessarily or very likely cause a particular result.
|
|
|
|
Define recklessly
|
When a person knows of a substantial and unjustifiable risk and consciously disregards it.
|
|
|
|
Is negligence an objective or subjective standard?
|
Objective
|
|
|
|
[1] State of mind required and [2] objective or subjective test: for Specific Intent
|
[1] Intent to engage in proscribed conduct; [2] subjective
|
|
|
|
[1] State of mind required and [2] objective or subjective test: for General Intent
|
[1] Awareness of acting in proscribed manner; [2] subjective
|
|
|
|
[1] State of mind required and [2] objective or subjective test: for malice
|
[1] Reckless disregard of known risk; [2] subjective
|
|
|
|
[1] State of mind required and [2] objective or subjective test: for Strict Liability
|
[1] Conscious commission of proscribed act; [2] Objective test
|
|
|
|
[1] State of mind required and [2] objective or subjective test: for Purposely
|
[1] Conscious object to engage in proscribed conduct; [2] Subjective
|
|
|
|
[1] State of mind required and [2] objective or subjective test: for Knowingly
|
[1] Awareness that conduct is of a particular nature or will cause a particular result; [2] subjective
|
|
|
|
[1] State of mind required and [2] objective or subjective test: for Recklessly
|
[1] Consciously disregarding a substantial known risk; [2] Subjective
|
|
|
|
[1] State of mind required and [2] objective or subjective test: for Negligently
|
[1] Failure to be aware of a substantial risk; [2] Objective
|
|
|
|
Modern Accomplice Liability – Principal: [1] Conduct; [2] Liability
|
[1] Person who commits the illegal act or who causes an innocent agent to do so; [2] Liable for principal crime
|
|
|
|
Modern Accomplice Liability – Accomplice (includes _____): [1] Conduct; [2] Liability
|
(Includes CL accessory before the fact) [1] Person who aids or encourages principal to commit the illegal conduct; [2] Liable for principal crime if accomplice intended to aid or encourage crime
|
|
|
|
Modern Accomplice Liability – Accessory after the Fact: [1] Conduct; [2] Liability
|
[1] Person who aids another to escape knowing that he has committed a felony; [2] Liable for separate, less serious crime of being an accessory after the fact
|
|
|
|
What mental state is required to be an accomplice?
|
Intent to encourage the crime. Mere knowing of the crime isn’t enough.
|
|
|
|
What’s the scope of liability for accomplices?
|
For the crimes he did or counseled and any other crimes committed in course of crime as long as they were probable or foreseeable.
|
|
|
|
What’s the rule for withdrawal by an accomplice?
|
A person who effectively withdraws before the crime is committed cannot be held guilty as an accomplice. Withdrawal must occur before the crime becomes unstoppable.
|
|
|
|
Withdrawal from accomplice liability – is repudiation enough? Is attempt to neutralize enough?
|
Repudiation is sufficient withdrawal for mere encouragement. Attempt to neutralize assistance is required if participation went beyond mere encouragement. Notifying the police is sufficient.
|
|
|
|
Culpable Conduct for [1] Solicitation; [2] Conspiracy; [3] Attempt
|
[1] Solicitation of another to commit a felony; [2] Agreement between two or more people to commit a crime; [3] Performance of an act would be a crime if successful.
|
|
|
|
Mental State for [1] Solicitation; [2] Conspiracy; [3] Attempt
|
[1] Specific intent that person solicited commit the crime; [2] Specific intent to: (a) enter into agreement and (b) achieve objective; [3] Specific intent to commit the particular crime attempted
|
|
|
|
Overt Act for [1] Solicitation; [2] Conspiracy; [3] Attempt
|
[1] no act (other than solicitation); [2] act in furtherance of the conspiracy; [3] act dangerously close to success (MPC – substantial step test)
|
|
|
|
Merger into completed crime for [1] Solicitation; [2] Conspiracy; [3] Attempt?
|
[1] Yes; [2] No; [3] Yes
|
|
|
|
Is withdrawal a defense for [1] Solicitation; [2] Conspiracy; [3] Attempt?
|
[1] Generally No; [2] No, except for further crimes of co-conspirators; [3] Generally No
|
|
|
|
Is it a defense to withdraw from an inchoate crime?
|
No
|
|
|
|
What are the elements for solicitation?
|
Inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime.
|
|
|
|
For solicitation, does the person solicited have to respond affirmatively?
|
No. But, if the person says “yes” it becomes conspiracy and solicitation merges and you’re left w/ conspiracy.
|
|
|
|
What are the elements of conspiracy?
|
It requires [1] an agreement between two or more persons; [2] an intent to enter into the agreement; and [3] an intent by at least two persons to achieve the objective of the agreement. A majority of states now require an overt act, but an act of mere preparation is enough.
|
|
|
|
Important tip to remember for conspiracy
|
It takes two guilty minds – two people who intend to agree and intend that the crime be committed.
|
|
|
|
Does the agreement for conspiracy have to be express?
|
No. It can be inferred from joint activity.
|
|
|
|
What is the Wharton Rule and how does it apply to Conspiracy? What are the exceptions?
|
Where two or more people are necessary for the commission of the substantive offense (adultery, dueling) there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime. Exceptions – does not apply to agreements w/ necessary parties not provided for by the substantive offense.
|
|
|
|
What’s the effect of acquittal of all the other members of a conspiracy?
|
It precludes conviction of the remaining Δ. “Acquittal” is key. If Δ is the only one tried, then he can be convicted. But, UPC allows unilateral conviction even if others were acquitted.
|
|
|
|
What’s the intent for conspiracy?
|
Specific intent – parties must have [1] intent to agree; [2] intent to achieve the objective of the conspiracy.
|
|
|
|
What is the liability for other co-conspirators’ crimes?
|
Liability if crimes: [1] were committed in furtherance of the objectives of conspiracy and [2] were foreseeable.
|
|
|
|
How do you terminate a conspiracy?
|
Upon completion of the wrongful objective. Government’s defeat of conspiracy does not automatically terminate.
|
|
|
|
What effect are defenses to a conspiracy?
|
[1] Impossibility is not a defense; [2] withdrawal is not a defense. (Conspiracy is complete when agreement is made and an act in furtherance is completed). But withdrawal can be defense for subsequent crimes committed in furtherance.
|
|
|
|
How does one withdraw from a conspiracy?
|
Perform an affirmative act that notifies all members of conspiracy of withdrawal. Notice must be given in time for other members to abandon. If assistance was given, must try to neutralize.
|
|
|
|
What are the elements of attempt?
|
Intent to commit a crime that falls short of completing the crime.
|
|
|
|
What is the mental state for attempt?
|
Must intend to perform an act and obtain a result that, if achieved, would constitute a crime. Attempt always a specific intent! Something like negligent homicide can never happen.
|
|
|
|
What is the overt act for attempt?
|
Must commit an act beyond mere preparation. Proximity test requires that the act be dangerously close to successful completion of crime (old standard). MPC requires that the act constitutes a substantial step in a course of conduct planned to culminate in the commission of a crime.
|
|
|
|
What is the substantial step requirement for Attempt?
|
The act or omission must constitute a substantial step in a course of conduct planned to culminate in the commission of the crime.
|
|
|
|
Which act is more substantial – the one for attempt or the one for conspiracy?
|
Attempt
|
|
|
|
Is factual impossibility a defense to attempt?
|
No. Ex: attempted robbery of a broke person. Receipt of stolen goods that aren’t stolen
|
|
|
|
Is legal impossibility a defense to attempt?
|
Yes.
|
|
|
|
MBE hint regarding defenses to attempt
|
Usually going to be factual and thus no defense to attempt. If in doubt, assume that there will be no defense.
|
|
|
|
Is abandonment a defense to attempt?
|
No. Completion is not required – just intent and an overt act.
|
|
|
|
Is there merger for attempt?
|
No
|
|
|
|
Shorthand ways to remember the Four insanity tests
|
[1] M’Naghten - Δ does not know right from wrong; [2] Irresistible Impulse – an impulse that Δ cannot resist; [3] Durham – but for mental illness, Δ would not have done the act; [4] ALI or MPC – combination of M’Naghten and irresistible impulse.
|
|
|
|
Who has the burden of proof in insanity cases?
|
Δs are presumed sane, so Δ must raise insanity issue.
|
|
|
|
When can an insanity defense be raised?
|
At arraignment or later. A “not guilty” plea at arraignment will not waive the right to raise insanity defense later.
|
|
|
|
What’s the pretrial psychiatric examination policy for insanity claims?
|
Δ can refuse if he hasn’t raised insanity defense. If he has, he may not refuse to be examined.
|
|
|
|
What is a diminished capacity defense used for?
|
Specific intent crimes (a few states allow for general intent). Note – this is a standard short of insanity but will still show that as a result of mental defect short of insanity, Δ did not have the required mental state to commit the crime.
|
|
|
|
When can voluntary intoxication be used as a defense?
|
Specific intent crimes. Only if the crime requires purpose (intent) or knowledge and the intoxication prevented the Δ from formulating the purpose or obtaining the knowledge.
|
|
|
|
Limitations on using voluntary intoxication as a defense to specific intent crimes
|
If person became intoxicated to establish the defense. Also, it cannot reduce homicide from 2nd degree murder to manslaughter.
|
|
|
|
Voluntary intoxication is not a defense to what types of crimes?
|
Crimes involving malice, recklessness, negligence, or strict liability.
|
|
|
|
What’s the standard for involuntary intoxication?
|
If it results from the taking of an intoxicating substance w/o knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice while unaware of substance’s intoxicating effect. Treated like a mental illness – Δ is entitled to acquittal if she meets the jdxn’s insanity test.
|
|
|
|
Can drinking/drug abuse lead to insanity?
|
Yes. It can eventually lead to situations where a Δ can use intoxication and insanity defenses.
|
|
|
|
What’s the general rules for children?
|
Under 7 no criminal liability; Under 14 Rebuttable presumption of no criminal liability
|
|
|
|
Can self-defense be used for a threat of future harm?
|
No
|
|
|
|
When can you use nondeadly force?
|
Where it reasonably appears necessary to avoid imminent injury or to retain property. No duty to retreat!
|
|
|
|
When can you use deadly force?
|
Only to prevent death or serious bodily injury
|
|
|
|
What are the elements of when deadly force is acceptable?
|
If [1] he is without fault; [2] he is confronted with unlawful force; and [3] he is threatened with imminent death or great bodily harm. If any of these are missing, it can result in an imperfect self-defense doctrine which would lead to manslaughter rather than murder.
|
|
|
|
What is the imperfect self-defense doctrine?
|
When one of the elements of justified deadly force is missing ([1] w/o fault; [2] confronted with unlawful force; [3] threatened w/ imminent death or great bodily harm). It can reduce murder to manslaughter.
|
|
|
|
When is retreat required regarding deadly force? (majority and minority)
|
Majority – no duty to retreat before using deadly force. Minority – must retreat before using deadly force if Δ can do so, unless: [1] attack occurs in victim’s house; [2] attack occurs while the victim is making lawful arrest; or [3] assailant is in process of robbing the victim. Note: no duty to retreat for police officers
|
|
|
|
When can an aggressor use self-defense?
|
Only if [1] he effectively withdraws form the altercation and communicates to the other his desire to do so, or [2] the victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw.
|
|
|
|
What kind of force can you use to protect your dwelling?
|
Nondeadly force may be used to prevent or terminate an unlawful entry. Deadly force can be used only to prevent a violent entry made w/ the intent to commit a personal attack on an inhabitant or to prevent an entry to commit a felony in the dwelling. Protect the inhabitants not the property.
|
|
|
|
What kind of force can you use to protect possessions?
|
Never deadly force. Nondeadly force can be used to defend property but not be used if a request to desist or refrain form the activity would suffice. Force is only allowed in regaining possessions if the person is in immediate pursuit of the taker.
|
|
|
|
What kind of force can you use to prevent a crime?
|
Nondeadly force to prevent a felony or serious breach of peace. Deadly force can be used to terminate a dangerous felony involving risk to human life.
|
|
|
|
What kind of force can you use to effectuate arrest?
|
Nondeadly – may be used by police officers if it reasonably appears necessary to effectuate an arrest. Deadly – only if necessary to prevent a felon’s escape and the felon threatens death or serious bodily harm
|
|
|
|
When can a private person use force to effectuate an arrest?
|
Nondeadly – if a crime was in fact committed and the private person has reasonable grounds to believe the person arrested has in fact committed the crime. Deadly – ONLY IF the person harmed was actually guilty of the offense for which the arrest was made.
|
|
|
|
What kind of force can be used on someone resisting arrest?
|
Nondeadly – may be used to resist an improper arrest even if a known officer is making arrest. Deadly – only if the person does NOT know the person arresting him is a police officer.
|
|
|
|
When is the necessity for using force?
|
It is a defense to a crime that the person reasonably believed that commission o f the crime was necessary to avoid an imminent and greater injury to society. Test is objective; good faith belief is NOT sufficient
|
|
|
|
What limitations are there on using force to avoid an imminent harm and greater injury to society?
|
Causing death to protect property is NOT cool. The defense of necessity is NOT available if Δ caused the situation where one of two evils had to be chosen.
|
|
|
|
Self-Defense – (Justification Defense) – when is it ok to use [1] Nondeadly Force; [2] Deadly Force
|
[1] If reasonably necessary to protect self; [2] Only if threatened with death or great bodily harm
|
|
|
|
Defense of others – (Justification Defense) – when is it ok to use [1] Nondeadly Force; [2] Deadly Force
|
[1] if reasonably necessary to protect person; [2] only if threatened with death or great bodily harm
|
|
|
|
Defense of Dwelling – (Justification Defense) – when is it ok to use [1] Nondeadly Force; [2] Deadly Force
|
[1] If reasonably necessary to prevent or end unlawful entry; [2] Only if person inside is threatened or to prevent felony inside.
|
|
|
|
Defense of Other Property – (Justification Defense) – when is it ok to use [1] Nondeadly Force; [2] Deadly Force
|
[1] If reasonably necessary to defend property in one’s possession (but if request to desist would suffice, force NOT allowed); [2] Never
|
|
|
|
Crime Prevention – (Justification Defense) – when is it ok to use [1] Nondeadly Force; [2] Deadly Force
|
[1] If reasonably necessary to prevent felony or serious breach of peace; [2] Only to prevent or end felony risking human life
|
|
|
|
Effectuate Arrest by Police – (Justification Defense) – when is it ok to use [1] Nondeadly Force; [2] Deadly Force
|
[1] If reasonably necessary to arrest; [2] Only to prevent escape of felon who threatens human life
|
|
|
|
Effectuate Arrest by Private Person – (Justification Defense) – when is it ok to use [1] Nondeadly Force; [2] Deadly Force
|
[1] If crime in fact committed and reasonable belief that this person committed it; [2] Only to prevent escape of person who actually committed felony and who threatens human life
|
|
|
|
Resisting Arrest – (Justification Defense) – when is it ok to use [1] Nondeadly Force; [2] Deadly Force
|
[1] If improper arrest; [2] Only if improper arrest and Δ does not know arrester is a police officer.
|
|
|
|
Necessity – (Justification Defense) – when is it ok to use [1] Nondeadly Force; [2] Deadly Force
|
[1] If reasonably necessary to avoid greater harm; [2] Never
|
|
|
|
When is the excuse of duress allowed?
|
It’s a defense to a crime other than homicide that the Δ reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family if he didn’t commit the crime.
|
|
|
|
A mistake or ignorance of fact is relevant to criminal liability only if it shows that …
|
The Δ lacked the state of mind required for the crime; thus it is irrelevant if the crime imposes strict liability.
|
|
|
|
If a mistake of fact if offered to disprove a specific intent, what kind of mistake does it have to be?
|
Any mistake – doesn’t have to be reasonable.
|
|
|
|
If a mistake of fact is offered to prove any state of mind other than specific intent, what kind of mistake is needed?
|
It must have been reasonable
|
|
|
|
Compare when mistake of fact and when impossibility are raised?
|
Mistake is usually raised as a defense to a crime that has been completed; mistake of fact may negate the intent required for the crime. Impossibility arises only when Δ has failed to complete the crime b/c of his mistaken belief about the facts, and is being charged w/ an attempt to commit the crime; factual impossibility is not a defense to attempt.
|
|
|
|
Is mistake of law or ignorance of law a defense?
|
Generally, no. Even if that belief was reasonable and based on advice of attorney. BUT if reliance on att’y negates necessary mental state element, such reliance can demonstrate that government hasn’t proved its case beyond reasonable doubt.
|
|
|
|
What are exceptions to the general rule that mistake of law is no defense?
|
[1] Statute proscribing her conduct was not published or made reasonably available prior to conduct; [2] reasonable reliance on statute or judicial decision; or [3] reasonable reliance on official interpretation or advice. Also, ignorance of law pertaining to specific elements rather than the existence of the statute making the acts illegal can be used.
|
|
|
|
When can consent be used as a defense and what must be established?
|
Unless the crime requires the lack of consent (rape), consent is usually not a defense. Defense to minor assaults or batteries. Must be established that: [1] consent was voluntarily and freely given; [2] party was legally capable of consenting; [3] no fraud was involved in obtaining the consent.
|
|
|
|
Justification (Exculpatory Defense) – [1] Applicable to; [2] When Available
|
Justification includes self-defense, defense of others, defense of property, necessity, etc.). [1] Usually crimes of force (e.g., battery, homicide); [2] Nondeadly force may usually be used if reasonably necessary to avoid imminent injury or to retain property; deadly force may be used only to prevent serious bodily harm.
|
|
|
|
Duress (Exculpatory Defense) – [1] Applicable to; [2] When Available
|
[1] All crimes except homicide; [2] Δ reasonably believed that another would imminently harm him or a family member if he didn’t commit the crime.
|
|
|
|
Mistake of Fact (Exculpatory Defense) – [1] Applicable to; [2] When Available
|
[1] Crimes w/ a mental state element (i.e., all crimes except strict liability); [2] For specific intent crimes, any mistake that negates intent; for other crimes, only reasonable mistakes.
|
|
|
|
Mistake of Law (Exculpatory Defense) – [1] Applicable to; [2] When Available
|
[1] Crimes w/ mental state element and statutory crimes; [2] Mistake must negate awareness of some aspect of law regarding the elements of the crime or must be due to: statute not being reasonably available, reasonable reliance on statute or judicial interpretation, or (in some states) reasonable reliance on official advice.
|
|
|
|
Consent (Exculpatory Defense) – [1] Applicable to; [2] When Available
|
[1] Crimes requiring lack of consent (e.g., rape) and minor assaults and batteries; [2] Applicable only if: consent is freely given, the party is capable of consenting, and no fraud was used to obtain consent.
|
|
|
|
Entrapment (Exculpatory Defense) – [1] Applicable to; [2] When Available
|
[1] Most crimes, but not available if the police merely provide the opportunity to commit the crime. [2] Criminal design originated with the police and the Δ was not predisposed to commit the crime before the contact w/ police.
|
|
|
|
Is forgiveness of a crime a defense?
|
No
|
|
|
|
Entrapment exists only if:
|
[1] The criminal design originated w/ law enforcement officers and [2] the Δ was not predisposed to commit the crime prior to contact by the government. But merely providing the opportunity for a predisposed person to commit the crime is not entrapment. VERY NARROW
|
|
|
|
Can you be entrapped by a private person?
|
No
|
|
|
|
MBE hint about entrapment
|
Δ is usually predisposed to commit the crime and thus entrapment usually is the wrong choice.
|
|
|
|
What is battery?
|
The unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. A Completed Assault!
|
|
|
|
Simple battery is a _____
|
Misdemeanor
|
|
|
|
Does a battery have to be intention?
|
No. And the force need not be applied directly.
|
|
|
|
What are aggravated batteries?
|
[1] battery w/ a deadly weapon; [2] battery resulting in serious bodily harm; [3] battery of a child, woman, or police officer
|
|
|
|
What is assault?
|
Either: [1] an attempt (specific intent) to commit a battery or [2] the intentional creation – other than mere words – of a reasonable apprehension in the mid of the victim of imminent bodily harm. If there is actual touching, it is battery. Touching = NO assault
|
|
|
|
What is aggravated assault?
|
Assault w/ deadly weapon or intent to main or rape. Treated more severely than simple assault.
|
|
|
|
Think of assault as ….
|
Two separate crime: [1] attempted battery assault – a specific intent crime (Δ must intend to commit crime) and [2] creation of reasonable apprehension assault.
|
|
|
|
At CL, criminal homicide is divided into ___ categories
|
3
|
|
|
|
CL – What is murder?
|
The unlawful killing of a human being w/ malice aforethought.
|
|
|
|
CL – when does malice aforethought exist?
|
If there are no facts reducing the killing to voluntary manslaughter or excusing (i.e., giving rise to defense) and it was committed w/ one of the following states of mind: [1] Intent to kill; [2] intent to inflict great bodily injury; [3] reckless indifference to an unjustifiably high risk of human life (abandoned/malignant/depraved heart); or [4] intent to commit a felony (felony murder)
|
|
|
|
Intentional use of a deadly weapon authorizes a _____
|
Permissive inference of intent to kill.
|
|
|
|
Does mercy killing mean that a Δ is guilty of murder?
|
Yes
|
|
|
|
CL – What is voluntary manslaughter?
|
A killing that would be murder but for the existence of adequate provocation.
|
|
|
|
When is provocation adequate for voluntary manslaughter?
|
Only If: [1] (Reasonable) it was a provocation that would arouse sudden and intense passion in mind of ordinary person, causing him to lose self-control (e.g., exposure to a threat of deadly force of finding wife screwing neighbor); [2] (Personal) Δ was in fact provoked; [3] (Reasonable) Not sufficient time between provocation and killing for passions of reasonable person to cool; and [4] (Personal) Δ in fact did not cool off between the provocation and the killing
|
|
|
|
Exam tip for Voluntary Manslaughter
|
Note the interplay between reasonable person and Δ: [1] Sudden and intense passion that would cause reasonable person to lose control; [2] Δ lost control; [3] not enough time for reasonable person to cool off; [4] Δ did not cool off.
|
|
|
|
Is heat of passion a defense to killing?
|
No. But it may reduce killing from murder to manslaughter. Don’t be fooled by answer choice “Not guilty b/c Δ acted in heat of passion”
|
|
|
|
What is imperfect self-defense and what does it do?
|
Murder may be reduced to manslaughter even though: [1] Δ was at fault in starting altercation; or [2] Δ unreasonably but honestly believed in necessity of responding w/ deadly force; [3]
|
|
|
|
When is a killing considered as involuntary manslaughter?
|
If it was committed with criminal negligence (grossly negligent) or during the commission of an unlawful act (misdemeanor or felony not included w/in the felony murder rule)
|
|
|
|
On the MBE, if it just says “manslaughter” what should you assume?
|
Voluntary
|
|
|
|
Statutory Modification of CL Classification of Murder – A murder will be 2nd degree murder unless it comes under the following circumstances which would make it 1st Degree Murder:
|
[1] Deliberate and Premeditated; [2] Felony murder – if murder is committed during perpetration of enumerated felony (usually arson, robbery, burglary, rape, mayhem, & kidnapping) – other than these, it will be 2nd; [3] Others – killings performed in other ways like torture.
|
|
|
|
Does voluntary intoxication apply to 1st degree murder?
|
Yes, b/c it’s based on premeditation which is specific intent. If Δ was so intoxicated that he was unable to premeditate, he can be convicted only of 2nd degree murder, which requires only reckless indifference to human life (and for which voluntary intoxication is NOT a defense)
|
|
|
|
What is felony murder and what is implied?
|
Any death caused in the commission of, or in an attempt to commit, a felony is murder. Malice is implied from the intent to commit the underlying felony.
|
|
|
|
Felony murder is limited to felonies that are ______
|
Inherently dangerous.
|
|
|
|
What are limitations on liability for the felony murder rule?
|
[1] Δ must be guilty of underlying felony (if he has Δ to underlying felony, he has Δ to felony murder rule); [2] felony must be distinct form killing itself; [3] Death must have been a foreseeable result of the felony; [4] Death must have been caused before the Δ’s immediate flight from the felony –once Δ reaches temporary safety, subsequent deaths are not felony murder; [5] Δ is not liable for felony murder when a co-felon is killed; [6] under agency theory, Δ is not liable when an innocent party is killed unless the death is caused by Δ or his agent (accomplice).
|
|
|
|
When can you have misdemeanor manslaughter?
|
The misdemeanor must be “malum in se” (inherently wrong conduct), or, the death must have been a foreseeable result of the commission of the misdemeanor.
|
|
|
|
What is the causation necessary for homicide?
|
Δ’s conduct must be both the cause-in-fact and the proximate cause of the victim’s death.
|
|
|
|
Homicide – what is cause-in-fact?
|
If the result would not have occurred but for the Δ’s conduct
|
|
|
|
Homicide – What is proximate causation?
|
If the result is a natural and probable consequence of the conduct, even if the Δ did not anticipate the precise manner in which the result occurred. Superseding factors break the chain of proximate causation.
|
|
|
|
Homicide – Rules of causation
|
An act that hastens an inevitable result is still the legal cause of that result. Also, simultaneous acts of two or more persons may be independently sufficient causes of a single result. A victim’s preexisting weakness or fragility, even if unforeseeable, does not break the proximate causation.
|
|
|
|
Homicide – Limitations of Causation
|
[1] Year and a Day rule – death of victim must occur w/in one year and one day from infliction of injury or rule (mostly abolished); [2] Intervening Acts – shields Δ from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the Δ. BUT – 3rd party’s negligent medical care and victim’s refusal of medical treatment for religious reasons are Foreseeable, so there is Δ liability!
|
|
|
|
What is false imprisonment?
|
Unlawful confinement of a person without his valid consent. It’s not confinement to simply prevent a person from going where she desires to go, as long as alternative routes are available to her.
|
|
|
|
How is false imprisonment consent invalidated?
|
By coercion, threats, deception, or incapacity due to mental illness, retardation, or youth.
|
|
|
|
What is kidnapping?
|
Unlawful confinement of a person that involves either [1] some movement of the victim; or [2] concealment of the victim in a secret place.
|
|
|
|
What are types of aggravated kidnapping?
|
Kidnapping for: ransom, purpose of committing other crimes, for offensive purposes. Also child stealing (child’s consent is invalid)
|
|
|
|
What is rape?
|
Unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent. Slightest penetration is sufficient.
|
|
|
|
Can a husband rape his wife?
|
In most states this can happen
|
|
|
|
In rape cases, lack of effective consent exists where:
|
[1] Intercourse is accomplished by actual force; [2] intercourse is accomplished by threats of great and immediate bodily harm; [3] victim is incapable of consenting due to unconsciousness, intoxication, or mental condition; or [4] victim is fraudulently caused to believe that the act is not intercourse.
|
|
|
|
Is consent due to other types of fraud effective against rape?
|
Yes – ex: perpetrator persuades victim that he is her husband or that he will marry her.
|
|
|
|
What is irrelevant in statutory rape cases?
|
Showing of reasonable mistake or voluntary consent.
|
|
|
|
If Δ has possession of the property at the time of the taking, the crime is not __________, but may be _______
|
Not larceny, but may be embezzlement.
|
|
|
|
What’s the difference between custody and possession?
|
Possession involves a greater scope of authority to deal w/ the property than does custody. Low level employees have only custody of an employer’s property and so are guilty of larceny for taking it. A bailee, on the other hand, has a greater scope of authority over an owner’s property and so is not guilty of larceny for taking it, but may be guilty of embezzlement.
|
|
|
|
Is taking property in the belief that it’s yours considered to be CL larceny?
|
No
|
|
|
|
What is sufficient intent for larceny?
|
Intent to substantial risk of lass, or an intent to sell or pledge the goods to the owner
|
|
|
|
When is the intent analyzed for larceny?
|
At time of taking
|
|
|
|
What is insufficient intent for larceny?
|
When Δ believes the property is hers or where she intends to borrow or keep it as repayment of debt
|
|
|
|
What is possibly sufficient intent for larceny?
|
Where Δ intends to pay for goods (if goods were not for sale) or intends to collect a reward from the owner (if there is no intent to return the goods absent a reward)
|
|
|
|
Larceny – rules for abandoned, lost or mislaid property
|
May be committed with lost or mislaid property or property delivered by mistake, but NOT with abandoned property
|
|
|
|
What is a continuing trespass situation in terms of larceny?
|
If Δ wrongfully takes property w/o intent to permanently deprive (w/o permission borrows an umbrella), and later decides to keep property, she is guilty of larceny when she decides to keep it. But if original taking was not wrongful (mistakenly took someone else’s umbrella) and she later decides to keep it, it’s not larceny.
|
|
|
|
How is embezzlement different from larceny?
|
In embezzlement, misappropriates property while it is in his rightful possession; while in larceny the Δ misappropriates property that is not in his possession. Key Question – Was there possession?
|
|
|
|
Can you get title from embezzlement?
|
No
|
|
|
|
Do you need to carry away in embezzlement?
|
No
|
|
|
|
What is the intent necessary for embezzlement?
|
Fraudulent Intent – Δ must intend to defraud
|
|
|
|
Is it embezzlement when Δ intends to restore the exact property taken?
|
No. BUT… if Δ intends to restore similar or substantially identical property, it is embezzlement, even if it was $ that was initially taken and other $ - of identical value – that he intended to return (“borrowing” for the time being).
|
|
|
|
Is there embezzlement or larceny when there is conversion pursuant to a claim of right to the property?
|
No. Whether Δ took the property openly is an important factor.
|
|
|
|
How is false pretenses different from larceny by trick?
|
Larceny by trick – victim is tricked into giving up mere possession of property. False pretenses – victim is tricked into giving up title to property
|
|
|
|
What is pick pocketing?
|
Larceny
|
|
|
|
What is yanking off someone’s necklace?
|
Robbery
|
|
|
|
What will work and what will not work for robbery?
|
Giving up property b/c she feels Threatened – robbery. Giving up property b/c she feels sorry for Δ or wants him to go away – not robbery. (maybe attempted robbery)
|
|
|
|
Robbery vs. Larceny
|
Robbery requires force or threats to obtain property.
|
|
|
|
Larceny (Property Crime) – [1] Activity; [2] Method; [3] Intent; [4] Title
|
[1] Taking and asportation of property from possession of another person; [2] Without consent or with consent obtained by fraud; [3] With intent to steal; [4] Title does not pass
|
|
|
|
Embezzlement (Property Crime) – [1] Activity; [2] Method; [3] Intent; [4] Title
|
[1] Conversion of property held pursuant to a trust agreement; [2] Use of property in a way inconsistent with terms of trust; [3] with intent to defraud; [4] Title does not pass
|
|
|
|
False Pretenses (Property Crime) – [1] Activity; [2] Method; [3] Intent; [4] Title
|
[1] Obtaining title to property; [2] By consent induced by fraudulent misrepresentation; [3] With intent to defraud; [4] Title passes
|
|
|
|
Robbery (Property Crime) – [1] Activity; [2] Method; [3] Intent; [4] Title
|
[1] Taking of property from another’s presence; [2] By force or threat of force; [3] with intent to steal; [4] title does not pass
|
|
|
|
What is extortion?
|
Corrupt collection of an unlawful fee by an officer under color of office. It often will consist of obtaining property by means of threats to do harm or to expose information.
|
|
|
|
Extortion vs. Robbery
|
Extortion – the threats may be of future harm and the taking does not have to be in the presence of the victim
|
|
|
|
What are the elements of Receipt of Stolen Property?
|
[1] Receiving possession and control; [2] of “stolen” personal property; [3] Known to have been obtained in a manner constituting a criminal offense; [4] by another person; [5] with the intent to permanently deprive the owner of his interest in it.
|
|
|
|
What is necessary for possession of stolen property?
|
Manual possession is not necessary. Δ possesses property when it is put in a location designed by her or she arranges a sale to a third person (fencing)
|
|
|
|
What is necessary for property to be “stolen” for receipt of stolen property?
|
Must be stolen property at time Δ receives it. So if police have already recovered property and use it w/ owner’s permission, then Δ can’t be convicted. BUT, he could be convicted of Attempted receipt of stolen property if he intended to receive the property believing it to be stolen.
|
|
|
|
What are the elements of forgery?
|
[1] Making or altering (by drafting, adding, or deleting); [2] A writing w/ apparent legal significance (e.g., a K not a painting); [3] So that it is false; i.e., representing that it is something that it is not, not merely containing a misrepresentation (e.g., a fake warehouse receipt, but not an inaccurate real warehouse receipt); [4] with intent to defraud (although no one need actually have been defrauded)
|
|
|
|
Under forgery, what does it mean to fraudulently obtain the signature of another?
|
If Δ fraudulently causes a 3rd person to sign a document that the 3rd person does not realize he is signing. But it’s not forgery if he knows he’s signing the document (even if he was induced by fraud to sign it)
|
|
|
|
What are the elements of Uttering a Forged Document?
|
[1] The malicious; [2] Destruction of or damage to; [3] the property of another. Malice requires no ill will or hatred. But it does require that the damage or destruction have been intended or contemplated by the Δ.
|
|
|
|
What are the elements of burglary?
|
[1] Breaking; [2] and Entry; [3] of a dwelling; [4] Of Another; [5] At nighttime; [6] With the intent to commit a felony in the structure
|
|
|
|
Burglary – What is Breaking?
|
Creating or enlarging an opening by at least minimal force, fraud, or intimidation; if the Δ had the resident’s consent to enter, the entry is not a breaking. The breaking can be actual or constructive. If a door is open, then there is no breaking. But look for an interior door to be opened.
|
|
|
|
Burglary – What is Entry?
|
Placing any portion of the body or any instrument used to commit the crime into the structure
|
|
|
|
Burglary – What is Of a Dwelling?
|
A structure used with regularity for sleeping purposes, even if used for other purposes such as conducting a business
|
|
|
|
Burglary – What is Of Another?
|
Ownership is irrelevant; occupancy by someone other than Δ is all that is required
|
|
|
|
Burglary – What is Nighttime
|
Look for “when the sun went down”. But many statutes will eliminate the nighttime requirement.
|
|
|
|
Burglary – What is With the Intent to Commit a Felony in the Structure?
|
The felony need not be carried out to constitute burglary. It must exist at time of b&e or it isn’t CL burglary.
|
|
|
|
What’s an exam tip regarding burglary?
|
The intent to commit a felony within must be present at the time of entry; a later-acquired intent is not sufficient.
|
|
|
|
What is the damage required for arson?
|
Charring is sufficient. But blackening by smoke or discoloration by heat (scorching) is NOT sufficient.
|
|
|
|
What is house-burning?
|
CL misdemeanor that consisted of: [1] a malicious; [2] burning; [3] of one’s own dwelling; [4] if the structure is situated either in a city or town, or so near to other houses to create a danger to them.
|
|
|
|
What is perjury?
|
Intentional taking of a false oath (lying) in regard to a material matter in a judicial proceeding
|
|
|
|
What is subordination of perjury?
|
Procuring or inducing another to commit perjury
|
|
|
|
What is bribery?
|
Corrupt payment or receipt of anything of value for official or non-official action. It can also include the offering of a bribe or taking of a bribe.
|
|
|
|
What is Compounding a crime?
|
Agreeing, for valuable consideration, not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon. It can refer to any crime.
|
|
|
|
What is misprision of a felony?
|
Failure to disclose knowledge of the commission of a felony or to prevent the commission of a felony. It’s no longer a crime in most jdxns. And if it is, it requires some affirmative action in aid of the felon.
|
|
|
|
Binding on the states – 5th privilege against compulsory self-incrimination?
|
Yes
|
|
|
|
Binding on the states – 4th prohibition against unreasonable searches & seizures?
|
Yes
|
|
|
|
Binding on the states – 4th exclusionary rule?
|
Yes
|
|
|
|
Binding on the states – 5th prohibition against DJ?
|
Yes
|
|
|
|
Binding on the states – 6th public trial?
|
Yes
|
|
|
|
Binding on the states – 6th trial by jury?
|
Yes
|
|
|
|
Binding on the states – 6th confront witnesses?
|
Yes
|
|
|
|
Binding on the states – 6th compulsory process for obtaining witnesses?
|
Yes
|
|
|
|
Binding on the states – 6th assistance to counsel in felony cases and in misdemeanor cases in which imprisonment is imposed?
|
Yes
|
|
|
|
Binding on the states – 8th prohibition against cruel & unusual punishment?
|
Yes
|
|
|
|
Binding on the states – Right to indictment by grand jury for capital and infamous crimes?
|
No
|
|
|
|
Binding on the states – 8th prohibition against excessive bail (thus creating a right to bail)?
|
Undetermined, but most states provide for it.
|
|
|
|
What is the exclusionary rule?
|
Judge-made doctrine that prohibits the introduction of E obtained in violation of a Δ’s 4th, 5th, or 6th rights. Illegally obtained E is not admissible at trial and all fruits of the poisonous tree must also be excluded.
|
|
|
|
What are exceptions to the fruits of poisonous tree doctrine?
|
[1] statements obtained in violation of Miranda; [2] Δ’s intervening act of free will; [3] inevitable discovery; [4] violations of knock & announce rule
|
|
|
|
Exclusionary rule is inapplicable to:
|
[1] grand juries (unless E was obtained in violation of fed. wiretapping statute); [2] Civil Proceedings; [3] Internal Agency Rules; [4] Parole Revocation Proceedings
|
|
|
|
Exclusionary rule does not apply when police act in good faith based on:
|
[1] case law; [2] facially valid statute or ordinance; [3] computer report containing error not made by police
|
|
|
|
The exclusionary rule doe not apply when the police act in good faith reliance on a defective search warrant unless:
|
[1] underlying affidavit was so lacking in PC that it could not reasonably be relied on; [2] warrant was defective on its face; [3] affiant lied to or misled the magistrate; or [4] the magistrate wholly abandoned his judicial role.
|
|
|
|
Is a voluntary confession taken in violation of Miranda requirements admissible for impeachment purposes?
|
Yes.
|
|
|
|
Is E obtained from an illegal search usable by the prosecution to impeach Δ’s statements? Others’ statements?
|
Δ’s – yes. Others’ – no.
|
|
|
|
If illegal E is admitted, a resulting conviction should be ________, unless _______
|
Overturned on appeal unless the government can show beyond reasonable doubt that error was harmless.
|
|
|
|
In a habeas corpus proceeding where the petitioner claims constitutional error, he should be released if …
|
He can show that the error had a substantial and injurious effect or influence in determining the jury’s verdict.
|
|
|
|
Can the denial of the right to counsel at trial be a harmless error?
|
No. Never harmless
|
|
|
|
Who bears the burden of establishing the admissibility of E under the exclusionary rule?
|
The government must establish admissibility by a preponderance of the E.
|
|
|
|
What does the 4th provide?
|
That people should be free from unreasonable searches and seizures
|
|
|
|
What are included in the scope of 4th seizures?
|
Governmental seizures of person, including arrests – must be reasonable.
|
|
|
|
What constitutes a seizure?
|
When a reasonable person would believe that she is not free to leave or terminate an encounter with the government
|
|
|
|
An arrest occurs when …
|
The police take a person into custody against her will for purposes of criminal prosecution or interrogation.
|
|
|
|
An arrest must be based on ….
|
PC – i.e., trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime.
|
|
|
|
Is a warrant required for arrests?
|
Not if in a public place. But a warrant is needed to effect a nonemergency arrest of a person in his home.
|
|
|
|
Besides an arrest, what are the other types of detentions?
|
[1] Investigatory Detentions (Stop & Frisk); [2] Automobile stops; [3] Detention to obtain a warrant; [4] Occupants of the premises; [5] station house detentions
|
|
|
|
When can the police Stop & Frisk?
|
When they have a reasonable suspicion of criminal activity or involvement of a crime, supported by articulable facts. If they have reasonable suspicion that detainee is armed & dangerous, they may frisk for weapons.
|
|
|
|
What is the duration & scope of a stop & frisk?
|
No longer than necessary to conduct a limited investigation to verify the suspicion. May ask for name and arrest upon refusal. Can arrest if PC for arrest arises. Property seizures are valid if based on reasonable suspicion.
|
|
|
|
What threshold is needed to stop a car?
|
Reasonable suspicion to believe a law has been violated.
|
|
|
|
To be valid, a roadblock must:
|
[1] Stop cars on basis of some neutral, articulable standard; [2] be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.
|
|
|
|
An automobile stop constitutes a seizure of …
|
Driver and passengers.
|
|
|
|
Do passengers have standing to raise a wrongful stop as a reason to exclude E found during the stop?
|
Yes
|
|
|
|
Can an officer order occupants of vehicle out of the car?
|
Yes.
|
|
|
|
Can an officer frisk occupants and search car for weapons after auto stop?
|
Yes. If he has reasonable suspicion.
|
|
|
|
Are pretextual stops allowed?
|
Yes, as long as they reasonably believe that passenger violated traffic law
|
|
|
|
Can an officer prevent someone from going into house while waiting for search warrant to look for drugs?
|
Yes, as long as PC that suspect has hidden drugs and would destroy them if he went back in.
|
|
|
|
Does a valid search warrant to search for contraband allow the police to detain occupants of premises during a proper search?
|
Yes
|
|
|
|
What suspicion is needed to bring suspect to station for questioning or fingerprinting?
|
PC
|
|
|
|
Does the 4th protect a person from seizure by subpoena for a GJ appearance?
|
No
|
|
|
|
Which constitutional provision is touched upon by deadly force? What’s the standard?
|
4th Seizure. Officer may not do so unless it’s reasonable to do so under the circumstances (danger to his life or others)
|
|
|
|
Questions to ask in search & seizure situations
|
[1] Does Δ have a 4th right (seizure by government concerning a place or thing in which the Δ had a reasonable expectation of privacy)? [2] Did gov have a valid warrant (issued by a neutral and detached magistrate on a showing of PC and reasonably precise as to the place to be searched and items to be seized)? [3] If the police did not have a valid warrant, did they make a valid warrantless search and seizure?
|
|
|
|
What are the warrantless search exceptions?
|
PI CHASE – [1] Plain View; [2] Incident to Lawful Arrest: [3] Consent; [4] Hot Pursuit; [5] Auto Search; [6] Stop & Frisk; [6] Evanescent Evidence (Exigent Circumstances)
|
|
|
|
What is protected and what isn’t regarding governmental conduct in searches?
|
Governmental conduct (including governmental agents) but NOT against private person (including security guards)
|
|
|
|
To have a 4th right, a person must have …
|
His own reasonable expectation of privacy wrt the place searched or item seized. Determination made on totality of circumstances
|
|
|
|
A person has a legitimate expectation of privacy any time:
|
[1] he owned or had a right to possession of the place searched; [2] place searched was his home, whether or not he owned or a had a right to possession of it; or [3] he was an overnight guest of owner of place searched
|
|
|
|
Do overnight guests have standing?
|
Yes
|
|
|
|
Do passengers in cars w/o ownership of property taken have standing?
|
No
|
|
|
|
Does drug dealer briefly on premises of someone else briefly for purpose of cutting up drugs have standing?
|
No
|
|
|
|
There is no reasonable expectation of privacy in:
|
Very Gross Dog Vapors Harass So Brody Can’t Learn; [1] Voice; [2]Garbage; [3] Driveway; [4] Vehicle; [5] Handwriting; [6] Smell; [7] Bank records; [8] Curtilage; [9] Land visible from public place
|
|
|
|
Can you use sense enhancing technology not in public use to intrude on privacy?
|
No
|
|
|
|
A warrant will be issued only if…
|
There is PC to believe that seizable E will be found on person or premises at time warrant is executed. Officers must submit to magistrate an affidavit setting forth circumstances to allow mag to make independent determination of PC
|
|
|
|
What’s test for informers?
|
Totality of circumstances. Anonymous informer is ok
|
|
|
|
A search warrant based on affidavit will be held invalid if all three are met:
|
[1] False statement was included in affidavit by affiant; [2] affiant intentionally or recklessly included the false statement; and [3] false statement was material to finding of PC. Δs are rarely successful in this challenge.
|
|
|
|
Can police rely on validity of warrant?
|
E obtained by police in reasonable reliance on facially valid warrant may be used by Ø, despite an ultimate finding that the warrant was not supported by PC
|
|
|
|
How precise does a warrant have to be?
|
Precise on its face – describe place to be searched and items to be seized. If not, it’s unC, even if underlying affidavit gives such detail.
|
|
|
|
Non-neutral are those who…
|
Wholly abandoned the judicial role. Can’t save the E w/ good faith defense.
|
|
|
|
Can you search 3rd party suspects’ premises?
|
As long as there is PC that E will be found there.
|
|
|
|
What happens to E in situations where knock & announce rule was violated?
|
It will not result in suppression of E otherwise properly obtained – exclusionary rule does not apply here.
|
|
|
|
Can private citizens execute a warrant?
|
No
|
|
|
|
Once police have entered on a valid search warrant, can they take stuff?
|
Yes. They can seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in warrant.
|
|
|
|
Under a valid warrant, can police search people on premises not named in warrant?
|
No
|
|
|
|
Incident to a lawful arrest, the police may…
|
Search the person and areas into which he might reach to obtain weapons or destroy E (including entire passenger area of car). They can also make a protective sweep of area if they believe accomplices are present.
|
|
|
|
What’s the relation to a search and the lawful arrest?
|
They must be contemporaneous in time and place w/ the arrest. But with autos, the contemporaneous doesn’t mean simultaneous. (police can search interior of car after securing suspect in back of police car)
|
|
|
|
If an arrest is unlawful, any search incident to that arrest is …
|
Also unlawful
|
|
|
|
What can police search after suspect has been arrested?
|
Inventory search of belongings and impounded vehicle.
|
|
|
|
What is needed for the auto exception to warrant?
|
PC that vehicle contains fruits, instrumentalities, or E of a crime. They may search whole vehicle and any container that might reasonably contain item which they had PC to search. They can also tow auto to station and search later.
|
|
|
|
What if police believe that auto is contraband?
|
They may seize it from public place w/o a warrant.
|
|
|
|
Search Incident to Lawful Arrest (Valid Warrantless Search) – [1] Need PC? [2] Contemporaneous Requirement? [3] Other Limitations?
|
[1] Yes (for arrest); [2] Yes; [3] Lawful Arrest
|
|
|
|
Search Incident to Incarceration a/k/a Inventory Search (Valid Warrantless Search) – [1] Need PC? [2] Contemporaneous Requirement? [3] Other Limitations?
|
[1] No; [2] No; [3] Established Routine
|
|
|
|
Auto Exception (Valid Warrantless Search) – [1] Need PC? [2] Contemporaneous Requirement? [3] Other Limitations?
|
[1] Yes; [2] No; [3] Containers – limited to those that could contain E sought
|
|
|
|
Plain View (Valid Warrantless Search) – [1] Need PC? [2] Contemporaneous Requirement? [3] Other Limitations?
|
[1] Yes (to believe item is E, contraband, etc.); [2] yes; [3] Lawfully on premises; E in plain view
|
|
|
|
Consent (Valid Warrantless Search) – [1] Need PC? [2] Contemporaneous Requirement? [3] Other Limitations?
|
[1] No; [2] Yes; [3] Voluntary and intelligent consent; apparent authority to consent; cannot be against wishes of a co-occupant who is present and objecting to search.
|
|
|
|
Stop & Frisk – Stop component (Valid Warrantless Search) – [1] Need PC? [2] Contemporaneous Requirement? [3] Other Limitations?
|
[1] No; [2] Yes [3] Reasonable and articulable suspicion of criminal activity
|
|
|
|
Stop & Frisk – Frisk component (Valid Warrantless Search) – [1] Need PC? [2] Contemporaneous Requirement? [3] Other Limitations?
|
[1] no; [2] yes; [3] reasonable belief that person is armed; limited to patdown of outer clothing;
|
|
|
|
Stop & Frisk – Hot Pursuit, Emergencies (Valid Warrantless Search) – [1] Need PC? [2] Contemporaneous Requirement? [3] Other Limitations?
|
[1] No; [2] Yes; [3] Emergency situation – no time to get a warrant
|
|
|
|
Exam tip for Auto searches
|
Police have broad authority. If PC to search vehicle, police can search entire car and anything in it that might contain the E.
|
|
|
|
Can auto search extend to passenger’s belongings?
|
No. but it may extend to the passenger, just not the belongings
|
|
|
|
Can auto search extend to containers placed in vehicle?
|
If police have PC to search a container in vehicle, they may search only the container, not the car.
|
|
|
|
Plain View doctrine – police may make a warrantless seizure when they:
|
[1] are legitimately on premises; [2] discover E, fruits or instrumentalities of crime, or contraband; [3] see such E in plain view; and [4] have PC to believe that item is E, contraband, or fruit or instrumentality of crime. Ex: If police is looking for handgun in drawer, if he finds coke, that’s considered plain view.
|
|
|
|
A warrantless search is valid if the police have ___________ consent
|
Voluntary & intelligent
|
|
|
|
Is knowledge of ability to withhold consent necessary?
|
Not a prerequisite. but if they lie about having a warrant, that negates consent
|
|
|
|
What negates consent to a search?
|
Lying about warrant
|
|
|
|
Who can consent to a search?
|
Any person w/ apparent equal right to use or occupy the property may consent. But a co-tenant can’t give consent over other tenant’s objections
|
|
|
|
In a reasonable stop, are weapons found admissible?
|
Yes. Weapons always admissible as long as stop was reasonable.
|
|
|
|
What’s the standard for stop & frisk?
|
Articulable and reasonable suspicion.
|
|
|
|
A stop is not an arrest, and thus an officer need not have _____
|
PC
|
|
|
|
A frisk will be justified only if …
|
The officer reasonably thinks that suspect has a weapon.
|
|
|
|
What is the scope of a frisk limited to?
|
Patdown of outer closing, unless officer has specific info that weapons is hidden in particular area of clothing.
|
|
|
|
What can an officer do if he thinks the occupants of a vehicle are dangerous?
|
Order them out of vehicle, frisk them, and search passenger compartment of vehicle.
|
|
|
|
What’s the admissibility of E from a plain feel frisk?
|
An officer may reach into suspect’s clothing and seize any item that officer reasonably believes, based on plain feel, is a weapon or contraband and such items are admissible as E.
|
|
|
|
Describe hot pursuit, Evanescent E and other emergencies and the need for warrants
|
Police in hot pursuit of a fleeing felon may make warrantless search and seizure and may even pursues the suspect into private dwelling; police may seize w/o a warrant E likely to disappear before warrant can be obtained; and contaminate food or drugs, persons injured or threatened w/ injury, and burning fires justify warrantless searches & seizures.
|
|
|
|
How can you get a warrant for administrative inspections and searches?
|
More lenient than for other searches. You need a showing of general and neutral enforcement plan
|
|
|
|
What are the exceptions permitting warrantless searches?
|
The following warrantless searches have been upheld: [1] seize spoiled or contaminated food; [2] admin search of biz w/in highly regulated industry; [3] inventory searches of arrestees; [4] airline passengers; [5] searches of parolees and their homes; [6] government employees’ desks and file cabinets; [7] Drug tests of railroad employees involved in accident; [8] drug tests of persons seeking customs employment in positions connected to drug interdiction; [9] drug tests of public school students who participate in extracurricular activities
|
|
|
|
Can you search in other countries?
|
4th does not apply to searches and seizures by US in foreign countries and involving an alien, at least where alien doesn’t have substantial connection to US.
|
|
|
|
Do you need a =warrant for border searches?
|
No.
|
|
|
|
What standard to search autos at border?
|
Reasonable suspicion that auto contains aliens.
|
|
|
|
Can you open international mail?
|
Yes, when there is reasonable cause to believe that mail contains contraband
|
|
|
|
Can you use illegally obtained evidence in a factory survey when determining citizenship of each worker?
|
Yes, in a civil deportation hearing.
|
|
|
|
Can you detain someone you think has dope in her belly?
|
Yes, if you have reasonable suspicion
|
|
|
|
Is wiretapping a search?
|
yes
|
|
|
|
A valid warrant authorizing a wiretap may be issued if:
|
[1] there is showing of PC; [2] suspected persons involved in the conversations to be overheard are name; [3] warrant describes w/ particularity the conversations that can be overheard; [4] wiretap is limited to a short period of time; [5] wiretap is terminated when desired info has been obtained; [6] return is made to court, showing what conversations have been intercepted.
|
|
|
|
Wiretapping/eavesdropping – a speaker assumes the risk that …
|
The person he’s talking to is an informer
|
|
|
|
Do pen registers fall under 4th?
|
No
|
|
|
|
Confessions fall under which amendments?
|
4th, 5th, 6th, 14th
|
|
|
|
Will the taking of a blood sample be upheld?
|
Yes, but surgery to remove bullet might not be (shocks conscience)
|
|
|
|
Under 14th, for self-incriminating statement to be admissible under DPC, it must be _____ as determined by _____
|
Voluntary; totality of circumstances
|
|
|
|
Under 14th, a statement will be involuntary only if …
|
There is some official compulsion (so a mental illness will not necessarily make a statement involuntary)
|
|
|
|
If an involuntary confession is admitted into E, what test applies?
|
Harmless error.
|
|
|
|
6th Am guarantees …
|
The right to the assistance of counsel in criminal proceedings
|
|
|
|
The 6th guarantees the right to the assistance of counsel in all criminal proceedings, which include ….
|
All critical stages of a prosecution after judicial proceedings have begun (formal charges have begun)
|
|
|
|
What does the 6th prevent police from doing?
|
Deliberately eliciting an incriminating statement from a Δ outside the presence of counsel after the Δ has been charged unless he has waived his right to counsel.
|
|
|
|
There can be no 6th violation before …
|
Formal proceedings have begun.
|
|
|
|
A Δ who is arrested but not yet charged has what kind of right and doesn’t have what kind of right?
|
has a 5th right to counsel under Miranda but does not have 6th right to counsel
|
|
|
|
Is the 6th offense specific?
|
Yes.
|
|
|
|
Even if a Δ’s 6th rights have attached regarding the charge for which he is being held, he may be questioned regarding ______ without violating the 6th right to counsel.
|
Unrelated, uncharged offenses
|
|
|
|
Under the 6th, two offenses will be considered different if ….
|
Each requires proof of an additional element that the other crimes does not require.
|
|
|
|
What does the 5th protect against?
|
Compelled self-incrimination
|
|
|
|
A person in custody must, prior to interrogation, be informed, in substance, that:
|
[1] he has the right to remain silent; [2] anything he says can be used against him in court; [3] he has the right to the presence of an attorney; [4] if he cannot afford an attorney, one will be appointed for him if he so desires; [4.5] you can terminate interrogation at any time
|
|
|
|
Does a failure to give Miranda warnings violate the 6th?
|
No, it doesn’t violate the 6th’s right to counsel
|
|
|
|
Does a failure to give Miranda warnings violate the 5th?
|
Yes - violates the 5th’s right to be free from compelled self-incrimination
|
|
|
|
When is Miranda required?
|
Anyone in custody before interrogation
|
|
|
|
Miranda warnings are necessary only if Δ knows that he is being interrogated by _____
|
A government agent
|
|
|
|
Is Miranda’s custody requirement based on subjective or objective standards?
|
Objective circumstances
|
|
|
|
What does interrogation include?
|
Any words or conduct by police that they should know would likely elicit a response from the Δ.
|
|
|
|
Are Miranda warnings required before blurts?
|
No
|
|
|
|
Can a suspect waive Miranda rights?
|
Yes, but Ø must prove that the waiver was knowing, voluntary, and intelligent.
|
|
|
|
Does Miranda apply to inculpatory statements?
|
Yes
|
|
|
|
Does Miranda apply to exculpatory statements?
|
Yes
|
|
|
|
Does Miranda apply at GJ hearing?
|
Do not apply to a W testifying before a GJ even if W was compelled by subpoena to be there.
|
|
|
|
How can you terminate an interrogation?
|
Invoke right to remain silent or right to counsel
|
|
|
|
What does the police have to do after W invokes right to remain silent?
|
Not badger. But later questioning is ok relating to unrelated crime.
|
|
|
|
How does the accused have to ask for counsel?
|
Unambiguously
|
|
|
|
What happens after accused has unambiguously asks for counsel?
|
All questions must cease until counsel has been provided unless the accused then waives his right to counsel (e.g., by reinitiating questioning). Reinitiation by police w/o attorney present would violate his 5th right to counsel
|
|
|
|
Does allowing Δ to consult w/ counsel and then resuming interrogation after counsel has left satisfy the right to counsel?
|
No. Counsel must be present during interrogation unless Δ has waived the right.
|
|
|
|
Is 5th right to counsel offense specific?
|
No
|
|
|
|
If the Δ indicates that he wishes to remain silent, the police _________. If the Δ requests counsel, the police _____
|
Probably may re-question him about a different crime after a break if fresh Miranda warnings are administered; may not resumed interrogating Δ until counsel is provided or the Δ initiates the questioning.
|
|
|
|
What is the effect of a Miranda violation?
|
Inadmissible at trial under exclusionary rule
|
|
|
|
Statements obtained in violation of Miranda rules may ______, but may not ____
|
Be used to impeach the Δ’s trial testimony; but may NOT be used as E of guilt.
|
|
|
|
Miranda warnings after questioning and confession
|
Ok if warnings were inadvertent and unplanned; NOT ok if seemed like it was intentional (“question first, warn later)
|
|
|
|
What happens to nontestimonial E that is a result of unlawful interrogation?
|
Unclear
|
|
|
|
Do you have a right to counsel for show-ups? For photo ids?
|
Show-up YES; photo id NO
|
|
|
|
A suspect has a right to the presence of any attorney at … An accused does NOT have a right to counsel at …
|
Any post-charge lineup or showup. An accused does not have a right to counsel at photo IDs or when police take physical E, such as handwriting exemplars or fingerprints.
|
|
|
|
The right to counsel before trial is ….
|
Very limited and does not cover procedures where Δ is not personally confronted by the W against him (as in photo ID)
|
|
|
|
What are the differences between 5th and 6th right to counsels?
|
One circumstance under 5th, which is when somebody after hearing Miranda requests a lawyer. He needs an attorney for custodial interrogation. All other times you request a lawyer, it invokes your 6th right to counsel. This is offense specific and the attorney would only have to be present if police is asking questions about that case.
|
|
|
|
DP standard and 6th – a Δ can attack identification as denying DP if ________
|
The ID is unnecessarily suggestive and there is a substantial likelihood of misidentification. (but state can defeat by showing t hat there was ample opportunity to observe the person during the crime)
|
|
|
|
Why doesn’t a suspect’s 5th right not apply to lineups?
|
b/c a lineup does not involve compulsion to give testimonial evidence. So a Δ cannot refuse to participate in a lineup on that basis.
|
|
|
|
What is the remedy for unC’l id’s?
|
Exclusion of in-court id but it’s rarely granted.
|
|
|
|
A W may make an in-court id despite the existence of an unC pretrial id if …
|
The in-court id has an independent source (observe at time of crime)
|
|
|
|
Describe the hearing for a admissibility of Id E
|
Admissibility should be determined at a suppression hearing in absence of jury, but exclusion of jury is not C’ly required. The gov bears burden of proving that: [1] counsel was present; [2] accused waived counsel; or [3] there is an independent source of in-court id. Δ must prove an alleged DP violation.
|
|
|
|
A Δ’s liberty can be restricted only on a finding of …
|
PC
|
|
|
|
If PC has already been determined (arrest pursuant to a warrant or a GJ indictment), is a preliminary hearing necessary?
|
No
|
|
|
|
If PC has not already been determined and there are significant constraints on an arrestee’s liberty (jail or bail, but not release on recognizance), is a preliminary hearing required?
|
Yes, a preliminary hearing to determine PC must be held within a reasonable time. The hearing is an informal, nonadverserial proceeding. No real remedy for denial of the hearing, but E discovered as a result of the unlawful detention can be excluded under exclusionary rule.
|
|
|
|
Is there an 8th Am provision that bail apply to the states?
|
No. but if a state provides for bail (most states do), arbitrary denials of bail will violate DP
|
|
|
|
What are the standards for competency to stand trial?
|
Essentially identical with those for commitment of a person not charged w/ a crime; otherwise there is a denial of EP.
|
|
|
|
What are the Δ’s rights at GJ proceedings?
|
No right to notice that GJ is considering an indictment against him, to be present and confront witnesses at proceeding or to introduce E before the GJ.
|
|
|
|
Is there a right to have E excluded from GJ?
|
No. GJ can’t be quashed on basis that E was illegally obtained.
|
|
|
|
Three major differences between GJ proceedings and criminal trials:
|
[1] Δ (GJ W) has no right to have counsel present during his GJ testimony; [2] GJ may consider E that would be excluded at criminal trial (e.g., illegally obtained E or hearsay); and [3] the Δ (GJ W) must appear if called, although he can refuse to answer specific questions on the grounds that they may incriminate him.
|
|
|
|
Is there a right to challenge a subpoena on 4th grounds that GJ lacked probable cause?
|
No
|
|
|
|
Does harmless error apply to GJ indictments that result in conviction when minorities were excluded?
|
No
|
|
|
|
What is the only way to quash a GJ indictment?
|
Exclusion of minorities
|
|
|
|
What’s the standard for looking at whether or not a speedy trial occurred?
|
Totality of circumstances. If violated, there is dismissal w/ prejudice.
|
|
|
|
When does right to speedy trial attach?
|
When Δ was arrested or charged.
|
|
|
|
Does a Δ have to know of the charges for speedy trial rights to attach?
|
No
|
|
|
|
Does Ø have a duty to disclose exculpatory E?
|
Yes
|
|
|
|
What happens if Ø doesn’t reveal exculpatory E?
|
It violates the DPC and is grounds for reversing a conviction.
|
|
|
|
What does a Δ have to prove to reverse a conviction based on a claim that Ø didn’t reveal exculpatory E?
|
[1] E is favorable to him b/c it either impeaches or is exculpatory; and [2] prejudice has resulted
|
|
|
|
If Δ is going to use an alibi or insanity Δ, he must …
|
Notify Ø. Must give list of Ws. Ø must give Δ list of Ws it will use to rebut. Ø can’t comment at trial on Δ’s failure to produce a W named as supporting the alibi or on failure to present the alibi itself.
|
|
|
|
What’s the difference between insanity and incompetence?
|
Insanity is a defense based on Δ’s mental condition at time he committed crime. Cannot later be retried and convicted. Incompetency is a bar to trial based on Δ’s mental condition at time of trial. Can be later retried and convicted once regains competency.
|
|
|
|
A Δ is incompetent to stand trial if he either:
|
[1] Lacks a rational as well as factual understanding of the charges & proceedings, or [2] lacks sufficient present ability to consult w/ his lawyer w/ a reasonable degree of understanding. Δ must show by preponderance of E.
|
|
|
|
Which Amendments give right to public trial?
|
6th & 14th
|
|
|
|
What proceedings are open to public?
|
Preliminary PC hearings and pretrial suppression hearings (although may be closed sometimes). Press and Public have 1st right to attend trial (over Ø and/or Δ objections). Can even be on TV despite Δ protest.
|
|
|
|
DP is violated if judge is shown to have
|
Actual malice against Δ or have had a financial interest in having trial result in guilty verdict.
|
|
|
|
Does a Δ in a minor misdemeanor prosecution have a right to a trial judge?
|
No
|
|
|
|
DP of Trial is violated if:
|
[1] Unlikely that jury gave the E reasonable consideration; [2] Δ is in prison clothing; [3] Δ is visibly shackled; [4] jury exposed to influence favorable to Ø.
|
|
|
|
Does DP require all exculpatory E be preserved?
|
No, but it does prohibit bad faith destruction.
|
|
|
|
When do you have a right to trial by jury?
|
If imprisonment of more than 6 months is authorized. But if it’s ≤ 6 months, there is no C’l jury trial right.
|
|
|
|
Is there a right to a jury trial for delinquency proceedings?
|
No
|
|
|
|
Is there a right to a jury trial for civil contempt proceedings?
|
No
|
|
|
|
Is there a right to a jury trial for criminal contempt proceedings?
|
Yes, if cumulative penalties totaling more than 6 months are imposed. But if a judge summarily imposes punishment for contempt during trial, penalties may aggregate more than 6 months w/o a jury trial.
|
|
|
|
A judge can place a contemnor on probation for up to ____ years w/o affording him the right to a jury trial, as long as revocation of probation would not result in imprisonment for more than _____
|
Up to 5 years; more than 6 months
|
|
|
|
Is there a C’l right to a jury of 12?
|
No. You need at least 6 jurors. 9-3 ok, but not 8-4. If 6 jurors, must be unanimous.
|
|
|
|
Describe cross-sectional jury…
|
Δ has right for jury pool, but not for a particular jury.
|
|
|
|
Can Ø or Δ use peremptory challenges to exclude on race?
|
No. EP forbids.
|
|
|
|
How do you use an EP-based attack on peremptory challenges?
|
[1] Δ must show facts or circumstances that raise an inference that exclusion was based on race or gender; [2] upon such showing, Ø must come forward w/ race-neutral explanation for strike. [3] Judge then determines whether Ø’s reason was the genuine reason or merely a pretext.
|
|
|
|
When can Δ question on voir dire specifically directed to racial prejudice?
|
When race is bound up in the case or if it’s an interracial capital case.
|
|
|
|
Can the state exclude a juror for opposing the death penalty?
|
Not automatically. It must be determined if juror’s views would prevent or substantially impair performance of duties in accordance w/ instructions and oath. But if death sentence is imposed by jury from which a juror was improperly excluded is subject to automatic reversal.
|
|
|
|
Can a juror favoring the death penalty be allowed to sit?
|
No
|
|
|
|
Are inconsistent verdicts reviewable?
|
No
|
|
|
|
If substantive law provides that a sentence may be increased beyond the statutory maximum for a crime if additional facts (other than prior conviction) are proved, proof of the facts must be …
|
Submitted to the jury and proved beyond a reasonable doubt. The Δ’s right to jury trial is violated if judge makes the determination. The same general rule applies to sentencing enhancements after guilty pleas. In deciding whether to overturn a sentence for failure to submit a sentencing factor to the jury, the harmless error test is applied.
|
|
|
|
What happens if the right to counsel is violated at trial? What about non-trial violations?
|
Reversal. Non-trial gets the harmless error test.
|
|
|
|
Indigent Δs get counsel at:
|
[1] custodial police interrogation; [2] post-indictment interrogation, whether or not custodial; [3] preliminary hearings to determine PC to prosecute; [4] arraignment; [5] post-charge lineups; [6] guilty plea and sentencing; [7] felony trials; [8] misdemeanor trials when imprisonment is actually imposed or when suspended sentence is imposed; [9] overnight recesses during trial; [10] appeals as a matter of right; [11] appeals of guilty pleas
|
|
|
|
If an exam question involves a nonfelony and Δ asks for counsel, is denied, and is convicted, whether the right to counsel has been violated depends on Δ’s sentence – no imprisonment; imprisonment?
|
If he receives NO imprisonment, his right has not been violated. If receives imprisonment, his right has been violated.
|
|
|
|
At what circumstances is there no right to counsel?
|
[1] blood sampling; [2] taking of handwriting or voice exemplars; [3] precharge or investigative lineups; [4] photo id’s; [5] preliminary hearings to determine PC to detain; [6] brief recesses during Δ’s testimony at trial; [7] discretionary appeals; [8] parole & probation revocation proceedings; [9] post-conviction proceedings
|
|
|
|
Is there a right to self-representation?
|
Yes at trial, no at appeals.
|
|
|
|
Can the state recoup indigence costs from convicted Δs who later become able to pay?
|
Yes
|
|
|
|
Which amendment includes the right to effective counsel?
|
6th
|
|
|
|
How far does the right to effective counsel stretch?
|
To the first appeal
|
|
|
|
Is effective counsel presumed?
|
Yes
|
|
|
|
What circumstances constitute ineffective assistance?
|
[1] Deficient performance by counsel; and [2] but for the deficiency, the result of the proceeding would have been different (e.g., Δ would not have been convicted or his sentence would have been shorter)
|
|
|
|
What must a Δ show and not show for ineffective counsel claims?
|
Must point out specific deficiencies. Cannot base claim on inexperience, lack of time to prepare, gravity of charges, complexity of defenses, or accessibility of witnesses to counsel.
|
|
|
|
What circumstances are not ineffective assistance?
|
Trial tactics and failure to raise a C’l defense that is later invalidated.
|
|
|
|
If an attorney advises the trial court of a resulting conflict of interest at or before trial and the court refuses to appoint separate counsel, what happens?
|
Δ is entitled to automatic reversal. But Δ’s conflict of interest w/ att’y is rarely a ground for relief. A Δ doesn’t have right to be jointly represented with co-Δs if government can show a potential conflict of interest.
|
|
|
|
If a Δ uses insanity defense, is he entitled to the state providing a psychiatrist?
|
Yes
|
|
|
|
Does right to counsel forbid the seizure of drug money?
|
No
|
|
|
|
Is there a right to confer w/ attorney while testifying?
|
No
|
|
|
|
What Am provides the ability to confront adverse witnesses?
|
6th
|
|
|
|
Is the right to confront adverse witnesses absolute? Examples?
|
No. Not required when preventing such confrontation serves and important public purpose (protecting child witnesses form trauma). Judge may remove disruptive Δ or Δ may voluntarily leave.
|
|
|
|
What happens when two Δs are tried together and one gives a confession that implicates the other?
|
Right of confrontation prohibits the use of the statement, even where the confession interlocks w/ the Δ’s own confession, which is admitted.
|
|
|
|
When can a Δ’s statement of confession be used against a co-Δ?
|
[1] All portions referring to the other Δ are eliminated; [2] the confessing Δ takes the stand and subjects himself to cross-X wrt truth or falsity of what the statement asserts; or [3] the confession of the nontestifying co-Δ is being used to rebut the Δ’s claim that his confession was obtained coercively.
|
|
|
|
A prior testimonial statement will be admitted only if the Δ had
|
An opportunity to cross-X the declarant at the time the statement was made.
|
|
|
|
What is a testimonial statement?
|
At a minimum, statements from a preliminary hearing, a GJ hearing, a former trial, or police interrogation conducted to establish or prove past acts.
|
|
|
|
Is a 911 call testimonial?
|
Statements from police interrogations intended to aid the police in responding to an ongoing emergency – such as answering a 911 operator’s question while reporting a crime in progress – are NOT testimonial
|
|
|
|
What’s the burden of proof in all criminal cases?
|
DPC requires in all criminal cases that the state prove guilt beyond a reasonable doubt. But state may generally impose the burden of proof upon the Δ in regard to an affirmative defense like insanity or self-defense
|
|
|
|
What’s the relationship between wrongdoing and the right to confront witnesses?
|
It can be waived through wrongdoing (intimidating a W). States are free to decide standard of proof for waiver. Federal courts require Preponderance of the E.
|
|
|
|
What effect is a mandatory presumption or a presumption that shifts the burden of proof to Δ?
|
It violates the 14th’s requirement that the state prove every element of the crime beyond a reasonable doubt.
|
|
|
|
If you accept a guilty plea, what does that mean for jury trial?
|
Waives it.
|
|
|
|
What does the judge have to do when a Δ wants to take a guilty plea?
|
Determine that it’s voluntary and intelligent. Must be done by addressing the Δ personally in open court and on the record.
|
|
|
|
What does the judge need to determine that the Δ understands in order to take a guilty plea?
|
[1] nature of the charge & crucial elements of crime charged; [2] maximum possible penalty and mandatory minimum; and [3] that he has a right not to plead guilty and that if he does plead guilty, he waives the right to trial
|
|
|
|
Does the judge personally have to explain the elements of each charge to the Δ on the record?
|
No. it is sufficient that the record reflects that the nature of the charge and the elements of the crime were explained to the Δ by his own counsel.
|
|
|
|
What is the remedy for failing to meet the standards for taking the plea?
|
Withdrawal of the plea and pleading anew. The S.C. will not disturb guilty pleas after sentencing. The SC has adopted the K theory of bargaining.
|
|
|
|
Can you attack an intelligent choice about pleas collaterally?
|
No
|
|
|
|
A plea can be set aside for:
|
[1] involuntariness (failure to meet standards for taking plea); [2] lack of jdxn; [3] ineffective assistance of counsel; or [4] failure to keep the plea bargain
|
|
|
|
A plea will be enforced against _____ but not against ______
|
The Ø and Δ, but not against the judge.
|
|
|
|
Is a guilty plea involuntary b/c it was entered in response to the Ø’s threat to charge Δ with a more serious crime if he doesn’t plead guilty?
|
No
|
|
|
|
Is there prosecutorial vindictiveness in charging a more serious offense when Δ demands a jury trial?
|
No
|
|
|
|
What is it we have to know about death penalty?
|
[1] Any death penalty statute that doesn’t give Δ a chance to present mitigating facts and circumstances is unconstitutional. [2] There can be no automatic category for imposition of the death penalty. (Ex: if you kill PO, you’ll get death penalty – this is unC’l); [3] The state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional. [4] Only a jury and not a judge may determine the aggravating factors justifying imposition of the death penalty.
|
|
|
|
Death Penalty 1st sentence
|
[1] Any death penalty statute that doesn’t give Δ a chance to present mitigating facts and circumstances is unconstitutional.
|
|
|
|
Death Penalty 2nd sentence
|
[2] There can be no automatic category for imposition of the death penalty. (Ex: if you kill PO, you’ll get death penalty – this is unC’l)
|
|
|
|
Death Penalty 3rd sentence
|
[3] The state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional.
|
|
|
|
Death Penalty 4th sentence
|
[4] Only a jury and not a judge may determine the aggravating factors justifying imposition of the death penalty.
|
|
|
|
Is there a Federal C’l right to an appeal?
|
No
|
|
|
|
Can you have post-conviction review that makes the review less accessible to the poor than the rich?
|
No. indigents must be given counsel at state expense during a first appeal granted to all as a matter of right and for appeals of guilty pleas and pleas of nolo contendere
|
|
|
|
Does an indigent Δ automatically get counsel for a second, discretionary appeal?
|
No
|
|
|
|
What happens if SC announces new rule of crim pro?
|
If it’s in a case on direct review, the rule must be applied to all other cases on direct review.
|
|
|
|
Can you attack an appeal collaterally even if appeal is no longer available or has proven unsuccessful?
|
Yes
|
|
|
|
Does an indigent have a right to appointed counsel at a habeas corpus proceeding?
|
No. Petitioner has burden of proof by preponderance of E to show unlawful detention.
|
|
|
|
If revocation of probation also involves imposition of anew sentence, does Δ get rep by counsel?
|
Yes, in all cases in which she is entitled to counsel at trial.
|
|
|
|
If, after probation revocation, an already imposed sentence of imprisonment springs into application, or if the case involves parole revocation, the right to counsel is available only if …
|
Representation is necessary to a fair hearing (e.g., Δ denies commission of alleged acts, or issues are otherwise difficult to present and develop.
|
|
|
|
Prisoners’ rights – DP
|
Impinge on DP rights only if regs impose atypical and significant hardship
|
|
|
|
Prisoners’ rights – 4th protections in cells?
|
No
|
|
|
|
Prisoners’ rights – access to courts?
|
Yes, must be reasonable
|
|
|
|
Prisoners’ rights – 1st Am rights?
|
They may be burdened if related to penological interests. Incoming mail can be regulated but outgoing mail can’t.
|
|
|
|
Prisoners’ rights – Medical care?
|
Right to adequate under 8th prohibition against C & U punishment
|
|
|
|
When does DJ attach?
|
In a jury trial at the empanelling and swearing of the jury. In bench trials, it attaches when 1st W is sworn. Does not attaché in civil proceeding other than juvenile proceedings. Commencement of a juvenile proceeding bars a subsequent criminal trial for same offense.
|
|
|
|
What are exceptions to DJ that permit a retrial of Δ even if jeopardy has attached?
|
[1] If first trial ended in hung jury; [2] if there was manifest necessity to abort original trial or when termination occurs at behest of Δ on any ground not constituting acquittal on merits; [3] state may retry Δ who has successfully appealed a conviction unless ground for reversal was insufficient E to support a guilty verdict. Retrial is permitted when reversal is based on the weight (rather than sufficiency) of the E. On retrial, a Δ may not be tried for a greater offense than that for which he was convicted. A harsher sentence may be imposed for reasons other than vindictiveness for taking an appeal, but if the jury found that death penalty was not appropriate in the first trial, a death sentence may not be imposed at the 2nd trial.
|
|
|
|
DJ – what amendment and what does it say?
|
5th – person may not be retried for same offense once jeopardy has attached
|
|
|
|
In terms of DJ, what happens when Δ breaches plea bargain?
|
Charges may be reinstated.
|
|
|
|
Two crimes are the same offense unless …
|
Each crime requires proof of an additional element that the other does not require, even though some of the same facts may be necessary to prove both crimes. 2 crimes do not constitute the same offense if each crime requires proof of additional element that the other does not.
|
|
|
|
Even if two crimes constitute the same offense, multiple punishments are permissible if …
|
There was a legislative intent to have the cumulative punishments
|
|
|
|
Attachment of jeopardy for a greater offense bars retrial for …
|
Lesser included offenses
|
|
|
|
Attachment of jeopardy for a lesser included offense bars retrial for …
|
A greater offense, except that retrial for murder is permitted if the victim dies after attachment of jeopardy for battery.
|
|
|
|
An exception to the DJ bar exists if …
|
If unlawful conduct that is subsequently used to prove the greater offense [1] has not occurred at the time of prosecution for the lesser offense or [2] has not been discovered despite due diligence.
|
|
|
|
Is DJ violated when a person is indicted for a crime the conduct of which was already used to enhance the Δ’s sentence for another crime?
|
No
|
|
|
|
The DJ prohibits only …
|
Repetitive criminal prosecutions. So a state could bring a civil action even after a criminal trial. OR, the gov can bring a criminal trial after a civil trial has been brought unless the statutory scheme is to impose a criminal penalty.
|
|
|
|
Does DJ apply to trials by separate sovereigns?
|
No. A person can be tried by both state and federal, or by two states. But NOT a state and municipalities.
|
|
|
|
Does attachment matter if there are two separate sovereigns?
|
No
|
|
|
|
What may a Ø appeal after jeopardy has attached?
|
Any dismissal on Δ’s motion that does not constitute an acquittal on the merits.
|
|
|
|
The DJ does not bar appeals by the Ø if
|
A successful appeal would not require a retrial.
|
|
|
|
There is no bar to a government appeal of ______ pursuant to statute permitting such review.
|
A sentence
|
|
|
|
Can a Ø seek the death penalty if the jury fails to impose the penalty in the first trial after successful appeal?
|
No
|
|
|
|
What is collateral estoppel?
|
A Δ may not be tried or convicted of a crime if a prior prosecution by that sovereignty resulted in a factual determination inconsistent with one required for conviction.
|
|
|
|
Who can assert the privilege against compelled self-incrimination?
|
Only natural persons, not corps or partnerships. The privilege is personal and so may be asserted by a Δ, W, or party only if the answer to the question might tend to incriminate him.
|
|
|
|
The self-incrim privilege is personal and so may be asserted by …
|
A Δ, W, or party only if the answer to the question might tend to incriminate him.
|
|
|
|
When may the self-incrim privilege be asserted?
|
Whenever his response might furnish a link in the chain of E needed to prosecute him. The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution.
|
|
|
|
What’s the simplified rule for self-incrim priv for civil/criminal?
|
Use it (in civil) or lose it (in crim). You have to assert your right if you get asked, otherwise you waive it for all subsequent criminal prosecutions.
|
|
|
|
What’s the method for invoking self-incrim priv?
|
A criminal Δ has a right not to take the witness stand and not to be asked to do so. Otherwise, the priv does not permit a person to avoid being sworn as a W or being asked questions. The person must listen to questions and specifically invoke the priv rather than answer the questions.
|
|
|
|
Does giving up one’s name after a Terry stop violate 5th self-incrim?
|
No. One’s name generally poses no danger of incrimination.
|
|
|
|
What is the scope of protection of self-incrim privilege?
|
Only testimonial or communicative E and not real or physical E. To be considered testimonial, it must relate a factual assertion or disclose info. Producing documents does NOT involve testimonial self-incrimination.
|
|
|
|
Does 5th prohibit police from searching for and seizing documents that incriminate a person?
|
No
|
|
|
|
When does the self-incrim clause violation occur?
|
When the compelled statements are used against him in criminal case.
|
|
|
|
What are the two most important things to remember about 5th self-incrim priv?
|
[1] Only testimonial E is protected. Thus, a Δ has no self-incrim basis to object to a lineup or other ID procedure – even if he is asked to say certain words (e.g., “your money or your life”). This procedure does not involve testimonial E; the words are used for ID purposes and not as testimony. [2] Likewise, only compelled testimonial E is privileged. Thus, if Δ produced a writing of his own free will (e.g., took incriminating notes in a meeting), the police may seize this writing or the Δ may be compelled to produce it by subpoena, b/c he was not compelled to make the statement originally.
|
|
|
|
Is the Ø allowed to make a negative comment on Δ’s failure to testify or his remaining silent after Miranda?
|
No
|
|
|
|
Is Δ allowed to have judge instruct jury not to infer anything from Δ’s failure to testify?
|
Yes, if done by timely motion. The judge can also do this sua sponte.
|
|
|
|
What’s the exception to the Ø’s inability to comment on Δ’s silence at trial?
|
He can comment on a Δ’s failure to take the stand when the comment is in response to defense counsel’s assertion that the Δ was not allowed to explain his side of the story.
|
|
|
|
What test is used to analyze Ø’s statement about Δ’s silence at trial?
|
Harmless error
|
|
|
|
Is there a penalty for failure to testify?
|
A state may NOT chill exercise of 5th against compelled self-incrim by imposing penalties for failure to testify.
|
|
|
|
How do you eliminate the priv against self-incrim?
|
[1] Grant of immunity; [2] No possibility of incrim; [3] Waiver of priv
|
|
|
|
What is use and derivative use immunity and is it sufficient?
|
Yes, it’s sufficient. It guarantees that the W’s testimony and E located by means of the testimony will not be used against the W. However, the W may still be prosecuted if the Ø shows that the E to be used against the W was derived from a source independent of the immunized testimony.
|
|
|
|
Is immunized testimony voluntary or involuntary? Can you use immunized testimony to impeach? What about perjury?
|
Testimony obtained by a promise of immunity is coerced and therefore involuntary. Thus, immunized testimony may not be used for impeachment of a Δ’s testimony at trial. However, any immunized statements, whether true or untrue, can be used in a trial for perjury.
|
|
|
|
Can federal and state Øs use evidence that was immunized by each other?
|
Fed Øs may not use E obtained as a result of a state grant of immunity, and vice versa.
|
|
|
|
Does a person have a privilege against self-incrimination if there is no possibility of incrimination? What’s an example?
|
No. Statute of limitations has run.
|
|
|
|
What is the scope of immunity?
|
Extends only to the offenses to which the question relates and does not protect against perjury committed during immunized testimony.
|
|
|
|
Can you waive self-incrim privilege?
|
A criminal Δ, by taking witness stand, waives the privilege to the extent necessary to subject him to cross-X. A W waives the privilege only if he discloses incriminating info.
|
|
|
|
What rights must be given to a child during delinquency proceeding?
|
[1] written notice of charges; [2] assistance of counsel; [3] opportunity to confront and cross-X Ws; [4] the right not to testify; [5] the right to have guilt established by proof beyond reasonable doubt.
|
|
|
|
Is there right to trial by jury in delinquency proceedings?
|
No. Pretrial detention of a juvenile is allowed where it is found that the juvenile is a serious risk to society, as long as the detention is for a strictly limited time before trial may be held.
|
|
|
|
Does DJ attach for juvenile court?
|
If juvie court adjudicates a child a delinquent, jeopardy has attached and the prohibition against DJ prevents him from being tried as an adult for same behavior.
|
|
|
|
Are actions in forfeiture criminal in nature?
|
They are brought directly against property and are quasi-criminal in nature.
|
|
|
|
Is the owner of personal property constitutionally entitled to notice & hearing before the property is seized for a forfeiture proceeding?
|
No. But it is required before final forfeiture of the property.
|
|
|
|
Is the owner of real property constitutionally entitled to notice & hearing before the property is seized for a forfeiture proceeding?
|
Yes. Unless the gov can prove that exigent circumstances justify immediate seizure.
|
|
|
|
Does the Excessive Fines clause of 8th Am apply to civil fines?
|
No. Penal forfeitures are subject but civil are not. And it will only be excessive if it is grossly disproportionate to the gravity of the offense.
|
|
|
|
Are Civil in Rem Forfeitures subject to the Excessive Fines Clause of the 8th?
|
No
|
|
|
|
Are Monetary Forfeitures subject to the Excessive Fines Clause of the 8th?
|
No. e.g., forfeiture of twice the value of illegally imported goods
|
|
|
|
Does the DPC require forfeiture statutes to provide an “innocent owner” defense? What is an innocent owner defense?
|
No, at least where the innocent owner voluntarily entrusted the property to the wrongdoer. It’s a defense that the owner took all reasonable steps to avoid having the property used by another for illegal purposes.
|
|
