Term
| What are the 11 Specific Intent Crimes? |
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Definition
| 1. Solicitation 2. Conspiracy 3. Attempt 4. First Degree Murder 5. Assault 6. Larceny 7. Embezzlement 8. False pretenses 9. Robbery 10. Burglary 11. Forgery |
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Term
| What are the elements of conspiracy at common law? Under the MPC? |
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Definition
1. agreement between 2 or more people
2. intent to enter into an agreement
3. intent to achieve the objective of the agreement
Under the MPC:
4. Overt act in furtherance of the conspiracy (an act of mere preparation will suffice) |
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Term
| Can withdrawal be used as a defense to solicitation? |
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Definition
Generally: NO
But the MPC recognizes renunciation as a defense IF the D prevents the commission of the crime, such as by persuading the person solicited not to commit the crime |
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Term
| Does the person being solicited need to agree to commit the crime (or at least commit the crime) for the solicitor to be liable of solicitation? |
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Definition
| No. Once the solicitation has been made with the intent that the person being solicited commit the crime, the offense is complete |
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Term
| What is the "Wharton" rule for conspiracies? |
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Definition
Where two or more people are necessary for the commission of the substantive offense (e.g. adultery, dueling, sale of contraband), there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime.
So if A and B agree to duel, but are apprehended before the duel takes place, the Wharton rule would prevent them from being criminal liable for conspiracy |
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Term
| What are the 2 elements of attempt? |
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Definition
1. a specific intent to commit the crime
2. an overt act in furtherance of that intent (beyond mere preparation; MPC-->"substantial step") |
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Term
| For insanity, what are the 3 elements of the M'Naghten Rule? |
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Definition
1. A disease of the mind
2. caused a defect of reason
3. Such that the D lacked the ability at the time of his actions to either (a) know the wrongfulness or (b) understand the nature and quality of his actions |
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Term
| For insanity, what is the "irresistible impulse test"? |
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Definition
| Because of the mental illness, D was unable to control his actions or to conform his conduct to law |
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Term
| For insanity, what is the Durham (new hampshire) test? |
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Definition
| The crime was the product of mental disease or defect (i.e. the crime would not have been committed BUT FOR the disease) |
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Term
| For insanity, what i the MPC test? |
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Definition
Combination of the M'Naghten Rule and the Irresistible impulse test:
D suffers from mental disease and as a result lacked substantial capacity to either:
1. appreciate the criminality/wrongfulness of his conduct OR
2. conform his conduct to the requirements of law |
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Term
| Under common law, what are the 4 different states of mind a defendant can have to be liable for murder? |
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Definition
1. Intent to kill
2. Intent to inflict great bodily injury
3. Reckless indifference to an unjustifiably high risk to human life ("malignant heart")
4. Intent to commit a felong (i.e. felony murder rule) |
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Term
| For voluntary manslaughter, what are the 4 elements necessary to find "adequate provocation?" |
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Definition
1. Provocation arouses sudden and intense passion in the mind of an ordinary person
2. The D was in fact provoked
3. No sufficient time between provocation and killing for a reasonable person to cool off
4. Defendant in fact did not cool off between provocation and killing |
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Term
| What two provocations are usually deemed "adequate provocations" for the purpose of mitigating a murder to voluntary manslaughter? |
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Definition
1. being subjected to serious battery or a threat of deadly force
2. discovering one's spouse in bed with another person |
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Term
| What are the two types of involuntary manslaughter? |
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Definition
1. Criminal negligence causing death
2. "Unlawful Act" Manslaughter (basically any misdemeanor or felony not included in the felony murder rule that causes a death) |
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Term
| Under MPC, all murders are 2nd degree murders unless the prosecution can prove what? |
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Definition
1. Deliberate and Premeditated Killing
2. First Degree Felony Murder
3. Other crimes that may be statutorily deemed 1st degree murder |
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Term
| What is the "agency theory" of the felony murder rule? |
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Definition
Agency Theory: For the felony murder rule to apply, the victim must have been killed by the felon or his agent. If a innocent bystander is killed by a victim to the felony or by the police, the defendant will not be liable for felony murder.
Jurisdictions without the agency theory of felony murder will find felony murder liability if any foreseeable death is caused by the commission of the underlying felony, whether the killing was caused by the felon, his accomplice, the police, or anyone else. |
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Term
| What are the 3 elements of false imprisonment? |
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Definition
1. unlawful
2. confinement of a person
3. without his valid consent |
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Term
| What is necessary to show kidnapping? |
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Definition
Confinement of a person that involves either:
1. some movement of the victim or
2. Concealment of the victim in a "secret" place |
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Term
| What are the 6 elements for larceny? |
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Definition
1. A taking
2. and carrying away
3. of tangible personal property
4. of another
5. by trespass
6. with intent to permanently deprive the person of his interest in the property |
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Term
Can someone commit larceny by taking abandoned property?
What about lost property?
What about misdelivered property? |
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Definition
Abandoned property: NO (abandonment = discarded with the intent of giving up all rights in it)
Lost Property: YES IF:
1. finder knows or has reason to believe she can find out the identity of the owner; AND
2. at the taking of the property, has the intent necessary for larceny (i.e. if finder takes custody of lost property without the intent to steal, but later formulates intent, she has not committed larceny)
Misdelivered property: YES IF:
1. recipient, at the time of the misdelivery, realizes the mistake; AND
2. has the intent required for larceny |
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Term
| What are the 5 elements for embezzlement? |
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Definition
1. the fraudulent
2. conversion
3. of property
4. of another
5. by a person in lawful possession of that property |
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Term
| What is the difference between embezzlement and larceny? |
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Definition
Embezzlment: D has lawful possession of the property when he misappropriates it
Larceny: occurs at the time D obtains wrongful possession of the property |
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Term
| What are the 4 elements for False Pretenses? |
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Definition
1. Obtaining title
2. to the property of another
3. By a knowing false statement of past or existing fact
4. With the intent to defraud another |
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Term
| What is the difference between False Pretenses and Larceny by Trick? |
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Definition
False Pretenses: title is obtained
Larceny By Trick: Only custody is obtained |
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Term
| What are the 5 elements of robbery? |
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Definition
1. a taking
2. of personal property of another
3. form the other's person or presence
4. by force or intimidation
5. with the intent to permanently deprive him of it |
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Term
| What are the 6 common law elements of burglary? |
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Definition
1. a breaking
2. and entry
3. of the dwelling
4. of another
5. at nighttime
6. with the intent of committing a felony herein |
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Term
| What are the 4 common law elements of arson? |
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Definition
1. the malicious
2. burning
3. of the dwelling
4. of another |
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Term
What is required for an investigatory detention (i.e. Terry Stop)?
What is required for a frisk? |
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Definition
Stop: Reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime
Frisk: reasonable suspicion to believe that the detainee is armed and dangerous |
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Term
| What are the 6 Exceptions to the Warrant requirement? |
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Definition
1. Search incident to lawful arrest
2. Automobile Exception
3. Plain view
4. Consent
5. Stop and Frisk
6. Hot Pursuit, Evanescent Evidence, and Other Emergencies (Exigent Circumstances Exception) |
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Term
| After arresting the occupant of an automobile, what two ways can allow police to search the car under the search incident to arrest exception? |
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Definition
1. the arrestee is unsecured and still may gain access to the interior of the car
2. The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle |
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Term
| What are the elements to a valid search incident to arrest? |
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Definition
1. Lawful arrest (any arrest is sufficient, issuing traffic citation is not)
2. Search was limited to the arrestee's wingspan
3. Search is contemporaneous with the arrest |
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Term
| After one has been arrested and taken back to the police station, can the police take a cheek swab to analyze the arrestee's DNA as a booking procedure? |
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Definition
| Yes. It is reasonable if the arrest is supported by probable cause for a serious offense |
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Term
| What is the scope of a search under the automobile exception? |
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Definition
police can search the entire vehicle and all containers within the vehicle that MIGHT CONTAIN THE OBJECT for which they are searching.
This extends to belongings of the driver and passengers
However, if the police only have probable cause to search a container recently placed in the vehicle, they may search the container, but not the rest of the vehicle |
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Term
| What are the 4 elements to the plain view exception to the warrant requirement? |
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Definition
Police are:
1. legitimately present on the premises
2. discover evidence, fruits or instrumentalities of crime, or contraband
3. see such evidence in plain view
4. have probable cause to believe (i.e. immediately apparent) that the item is evidence, etc. |
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Term
| Under the consent exception to the warrant requirement, who has the authority to consent to a search? What is a limitation to this authority? |
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Definition
Any person with an APPARENT EQUAL RIGHT TO USE OR OCCUPY the property may consent to a search, even if it turns out that the person consenting did not actually have such a right to consent, as long as police reasonably believed that the person had authority to consent
Limitation: where a party/co-occupant is present and objects to the search and the search is directed against the co-occupant. |
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Term
Under the Stop/Frisk exception to the warrant requirement, if a vehicle is properly stopped, what is needed for the officer to:
1. order the driver out of the vehicle?
2. Frisk the driver or any passenger?
3. Search the passenger compartment of the vehicle (while the occupants are out of the vehicle)? |
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Definition
1. Nothing
2. Reasonable belief that the person may be armed and dangerous
3. reasonable belief that occupant is dangerous and the search is limited to those areas in which a weapon may be placed or hidden |
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Term
| Under the hot pursuit exception to the warrant requirement, when may officers pursue a suspect into a private dwelling? |
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Definition
| When they have PC to make a warrantless arrest in a "public place" and then pursue that D into a dwelling |
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Term
| What are the 3 elements for a reasonable school search? |
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Definition
1. Search offers a moderate chance of finding evidence of wrongdoing
2. measures adopted to carry out search are reasonably related to the objectives of the search
3. search is not excessively intrusive in light of the age and sex of the student and nature of the infraction |
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Term
| What are the 6 elements necessary to get a warrant to wiretap a phone or any other form of electronic surveillance? |
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Definition
1. PROBABLE CAUSE to believe that specific crime has been/is being committed
2. suspected persons whose conversations are to be overheard must be NAMED
3. DESCRIBE WITH PARTICULARITY the conversations that can be overheard
4. limited to a SHORT PERIOD OF TIME
5. PROVISIONS made for the TERMINATION of the wiretap when the desired info has been obtained
6. a RETURN must be made to the court showing what conversations have been intercepted. |
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Term
Which of these situations does a Defendant have a 6th Amendment right to counsel to be present?
1. post-indictment interrogation
2. photo identifications
3. Post-charge lineups
4. Arraignment |
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Definition
1. post-indictment interrogation - YES, 6th Amendment right to counsel
2. photo identifications: NO
3. Post-charge lineups: YES
4. Arraignment: YES |
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Term
Which of these situations does a Defendant have a 6th Amendment right to counsel to be present?
5. Discretionary appeals
6. Appeals as a matter of right
7. Appeals of guilty pleas and pleas of nolo contendere
8. Parole and probation revocation proceedings
9. guilty plea and sentencing |
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Definition
5. Discretionary appeals: NO 6th amendment right to counsel
6. Appeals as a matter of right: YES
7. Appeals of guilty pleas and pleas of nolo contendere: YES
8. Parole and probation revocation proceedings: NO
9. guilty plea and sentencing: YES |
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Term
Which of these situations does a Defendant have a 6th Amendment right to counsel to be present?
10. Brief recesses during the defendant's testimony at trial
11. Taking of handwriting or voice exemplars
12. Overnight recesses during trial
13. Blood sampling
14. Preliminary hearings to determine probable cause to prosecute. |
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Definition
10. Brief recesses during the defendant's testimony at trial: NO 6th amendment right to counsel
11. Taking of handwriting or voice exemplars: NO
12. Overnight recesses during trial: YES
13. Blood sampling: NO
14. Preliminary hearings to determine probable cause to prosecute: YES |
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Term
| What are the 4 elements of a valid Miranda warning? |
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Definition
1. D 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 |
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Term
| What triggers the requirement for a Miranda warning? |
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Definition
Custodial Arrest AND
Interrogation |
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Term
| For the purposes of Miranda, what 2-step process is used to determine whether "custody" exists? |
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Definition
1. "freedom of movement test": whether a reasonable person under the circumstances would feel that he was free to terminate the interrogation and leave
2. whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda |
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Term
| When deciding whether one is in "custody" for the purposes of Miranda, is the test objective or subjective? |
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Definition
| Objective. The court will use the totality of circumstances to determine whether the defendant was in custody |
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Term
| Generally, are traffic stops considered "custodial" such that an officer would be required to give miranda warnings? |
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Definition
| NO. Miranda warnings normally need not be given during a traffic stop |
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Term
| What constitutes "interrogation" under Miranda? |
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Definition
| Questions, words, or actions on the part of the police that the POLICE should know are reasonably likely to elicit an incriminating response from the suspect |
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Term
| If a defendant unambiguously invokes his right to remain silent, what 3 elements must be met for the police to resume questioning? |
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Definition
All questioning related to the particular crime must stop, but further questioning is allowed IF:
1. police immediately ceased the questioning upon D's request and did not resume for SEVERAL HOURS
2. the detainee was REWARNED of his rights (i.e. re-mirandized)
3. the questioning was LIMITED TO A CRIME THAT WAS NOT THE SUBJECT OF THE EARLIER QUESTIONING |
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Term
| If D invokes his right to counsel, when can police re-question the D? |
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Definition
They CANNOT. All questioning must cease until the detainee is proved with an attorney or initiates further questioning himself
HOWEVER: D may initiate resumption of questioning |
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Term
| If police obtain a confession without giving the detainee Miranda warnings, then give the detainee Miranda warnings and obtain a subsequent confession, with the subsequent confession be admissible? |
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Definition
If the "question first, warn later" nature of the questioning was INTENTIONAL --> Inadmissible
If it was not intentional -->may be admissible |
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Term
| What is the Public Safety Exception to Miranda? |
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Definition
| If police interrogation is reasonably prompted by a concern for public safety, responses to the questions may be used in court, even though suspect is in custody and Miranda warnings are not given |
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Term
| Are "fruits" derived from Miranda Violations inadmissible due to the exclusionary rule? |
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Definition
| NO. Evidentiary fruits discovered from testimony in violation of miranda will still be admissible |
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Term
| What are the 6 main exceptions to the Fruit of the Poisonous Tree Doctrine under the Exclusionary rule? |
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Definition
1. Independent source: evidence is admissible if prosecution can show that it was obtained from a source independent of the original illegality
2. Intervening Act of Free Will - act of free will by the D will break the chain between evidence and original illegality
3. Inevitable discovery
4. Live Witness Testimony
5. In-court identification
6. out-of-court identification (that was not purposefully made unduly suggestive by police) |
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Term
| What are the 8 main limitations on the Exclusionary Rule? |
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Definition
1. Inapplicable to Grand Juries
2. Inapplicable to Civil Proceedings
3. Inapplicable to Violations of State Law
4. Inapplicable to Internal Agency Rules
5. Inapplicable to parole Revocation Proceedings
6. Good Faith Exception (reasonable reliance on a defective search warrant)
7. Use of Excluded Evidence for Impeachment Purposes
8. Knock and Announce Rule Violations (evidence not excluded because knock and announce rule violations pertainig to the execution of a warrant) |
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Term
| Who has the burden to prove the admissibility or inadmissibility of evidence? What is that burden? |
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Definition
| The government bears the burden of establishing admissibility by the preponderance of the evidence. |
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Term
| Does a D have the right to testify at his suppression hearing without that testimony being admitted against him at trial on the issue of guilt? |
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Definition
| YES. He does have the right to testify. |
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Term
| If a prosecutor fails to disclose exculpatory evidence to the defendant, what must the defendant prove to have grounds for reversing a conviction? (2) |
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Definition
1. evidence at issue is favorable to the D becuase it impeaches or is exculpatory
2. prejudice has resulted (i.e. reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial) |
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Term
| Does the 6th Amendment right to a public trial extend to pretrial suppression hearings? |
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Definition
YES
However, the hearings can be closed to the public if:
1. party seeking closure has overriding interest likely to be prejudiced by public hearing
2. colusre is no broader than necessary
3. reasonable alternatives to closure have been considered
4. adequate findings to support colsure are entered by trial court |
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Term
| What must the defendant prove to have a reversal of his conviction and rehearing because of ineffective counsel? (2) |
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Definition
1. deficient performance by counsel
2. but for the deficiency, the result of the proceeding would have been different |
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Term
| Does the right to effective counsel extend to plea bargains? |
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Definition
| yes. 6th Amendment requires effective assistance at all critical stages of prosecution |
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Term
| If two people are tried together and one has given a confession that implicates the other, is that confession admissible? Exceptions? |
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Definition
NO. Even with instructions to the jury to consider it only as going to the guilty of the "confessing" defendant, the confession will still be inadmissible.
1. All portions referring to other D can be eliminated entirely
2. confessing D takes stand and subjects himself to cross-examinatin with respect to the truth or falsity of what the statement asserts
3. confession of the nontestifying co-defendant is being used to rebut the D's claim that his confession was obtained coercively |
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Term
| What are the 4 main exceptions to the double jeopardy rule? |
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Definition
1. Hung jury
2. Mistrial for Manifest Necessity
3. Retrial after successful appeal
4. Breach of plea bargaining |
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Term
| For the crime of "receipt of stolen property," is it required that the defendant know at the time of the receiving the property that it was stolen? |
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Definition
| Yes. At the time of receipt of the property, the defendant must know that it was stolen and intend to keep it. It she finds out later that it was stolen and keeps it anyways, she is still not criminally liable. |
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Term
| What are the 2 main issues at play re: the 4th Amendment? |
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Definition
1. Arrest/Detention
2. Search and Seizure |
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Term
| What are the 2 main 5th Amendment issues at play? |
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Definition
1. Incriminating Statements
2. Double Jeopardy |
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Term
| What are the 4 6th Amendment rights at play? |
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Definition
1. Right to Counsel
2. Right to Speedy Trial
3. Right to Jury Trial
4. Right to Confront Witnesses |
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Term
| What are the 2 main issues under the 14th Amendment due process clause with regards to crim pro? |
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Definition
1. Burden of proof on prosecution to prove guilt beyond a reasonable doubt; states can impose burden on D to prove affirmative defenses
2. Identification is unnecessarily suggestive and there is a substantial likelihood of misidentification |
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Term
| What are the 2 main requirements for the misdemeanor murder rule? |
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Definition
1. Murder committed during a misdemeanor
2. Misdemeanor is malum in se, or is bad in and of itself, and not just bad because it is declared so by statute |
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Term
| What is the difference between extortion and robbery? |
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Definition
| As opposed to robbery, extortion allows for threats of future harm and the taking need not be in the victim's presence. |
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Term
| What are the 5 elements for the crime of receipt of stolen property? |
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Definition
1. Receiving possession and control
2. of stole property
3. known to have been obtained in manner constituting a criminal offense
4. by another
5. with the intent to permanently deprive |
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Term
| What are the 4 elements to forgery? |
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Definition
1. Making or altering
2. a writing with apparent legal significance
2. making it false
4. with intent to defraud |
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Term
| What offenses give rise to a Right to a Jury Trial? |
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Definition
| Serious offenses, or those that come with imprisonment of 6months or more |
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Term
| For a valid voluntary and intelligent guilty plea, what 3 things must the judge be aware that the D knows and understands? |
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Definition
1. Nature of charge and crucial elements
2. Maximum possible penalty and any mandatory minimum
3. D's right to not plead guilty, and if he does plead guilty, he waives right to trial |
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Term
What test is used to determined whether a D had his right to a speedy trial violated?
When does the right attach? |
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Definition
Totality of Circumstances Test:
1. Length of delay
2. Reason for delay
3. Whether D asserted his right
4. Prejudice to the D
Attaches once defendant is arrested or charged |
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Term
| Under the Right to Confront Witnesses: In a joint trial, a co-defendant's confession cannot be admitted unless... (3 ways to admit it) |
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Definition
1. Portions referring to other defendant are redacted
2. Confessing D takes the stand and submits to cross-examination; or
3. The confession of the co-defendant is used to rebut the defendant's claims that his confession was involuntarily obtained |
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Term
Re: the justification of a "defense of another," what are the tests to determine justification under the:
Majority View?
Minority View? |
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Definition
Majority View: Defendant must reasonably believe that the person aided would be justified in defending himself
Minority View: Defendant must step into the shoes of the person she aided |
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Term
| Does a search warrant of a house authorize police to search the persons found inside that house (assuming the persons are not named in the warrant)? |
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Definition
NO
But note, however, that if police have PC to arrest a person discovered on the premises to be searched, they can conduct a warrantless search incident to arrest.
Also, they can search that person if they have PC to believe that person has the named objects on her person |
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Term
| Is a statute permitting a parole officer to enter a parolees home without a warrant or probable cause valid under the 4th Amendment? |
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Definition
| YES. A parolee in a jurisdiction with such a statute has a diminished expectation of privacy. Therefore the search is valid |
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Term
| Does the exclusionary rule apply to evidence resulting from a search that violates the "knock and announce rule?" |
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Definition
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Term
| What are the 3 main aspects of the general exclusionary rule? (i.e. how should you state it on an essay question?) |
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Definition
Under the Exclusionary Rule:
1. Evidence obtained in violation of a D's constitutional rights is generally inadmissible at trial;
2. under the fruit of the poisonous tree doctrine, evidence derived from unconstitutionally obtained evidence also will be suppressed;
3. suppression is not required if the taint of the unconstitutional action can be attenuated. |
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Term
| What are the 3 main elements to showing a due process violation in a lineup/showup? |
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Definition
Identification is...
1. Unnecessarily suggestive
2. substantial likelihood of misidentification
3. identification must be shown to have been extremely suggestive |
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Term
| In determining whether an in-court identification can be made because the identification has an independent source, despite the fact that the pre-trial identification came from an illegal lineup, what 3 things will the court consider? |
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Definition
1. opportunity to observe the D at the time of the crime
2. the ease with which the witness can identify the defendant
3. the existence or absence of prior misidentifications |
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Term
What is the definition of:
1. Voluntary Intoxication?
2. Involuntary Intoxication? |
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Definition
1. intentional taking without duress of a substance known to be intoxicating
2. taking of intoxicating substance without knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice while unaware of the substance's intoxicating effect |
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Term
| When an essay question involves an issue of involuntary intoxication, what should you include in your discussion? |
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Definition
The 4 Insanity Tests
And diminished capacity |
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Term
| What is "diminished capacity?" What crimes can it be asserted against? What affect does showing it have? |
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Definition
mental illness short of insanity
Can be asserted to a SPECIFIC INTENT crime
Can mitigate the accused's culpability or reduce the charge to a lesser offense |
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Term
| At trial, can a witness other than the defendant invoke her 5th Amendment right against self incrimination? |
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Definition
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Term
| What 4 things must the judge determine on the record that the Defendant is aware of to have a voluntary and intelligent waiver of the 6th Amendment Right to Jury Trial necessary to have a valid guilty plea? |
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Definition
1. Nature of the charge to which the plea is offered
2. Maximum possible penalty
3. Right to not plead guilty
4. By pleading guilty, D waives her right to jury trial |
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Term
| Does the common law embrace the unilateral or bilateral theory for conspiracy? |
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Definition
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Term
If a statute holds one strictly liable for statutory rape for having sex with one under the age of 16:
If the girl says she's 15 to the Defendant, but she's actually 18, can the Defendant be guilty of statutory rape? |
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Definition
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Term
| Is it constitutionally permissible for the government to seize funds earned through the sale of drugs that are earmarked for a defendant to pay his attorney? |
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Definition
| YES. This is allowed. The 6th Amendment does not forbid seizure of drug money, even if the money is to be used to pay a defense attorney. |
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