Criminal Law + Procedure

What are the two types of homicide?

Murder + Manslaughter

What are the four types of murder?

1. Intent to Kill

2. Intent to Inflict Serious Bodily Harm

3. Felony Murder

4. Depraved Heart Murder

What are the two requirements for intent to kill murder?

Premeditated Killing

Specific Intent

Does Intent to Inflict Serious Bodily Harm Murder have to include intent to kill?

No

What is the acronym for underlying felonies in felony murder?

BARRK -

Burglary

Arson
Rape

Robbery
Kidnapping

What depraved heart murder?

A reckless disregard for human life.
You knew or should have known that a death could occur, and you acted anyway

What are the two types of manslaughter?

Voluntary and Involuntary

What are the three requirements for voluntary manslaughter?

1. Adequate Provocation

2. Heat of Passion

3. No time to cool off

Is intent relevant for manslaughter?

Generally, not.

Define involuntary manslaughter

Negligent conduct causing a death

What are the four elements for larceny?

Trespassory Taking

Carrying Away

Personal Property of Another

With Intent to Permanently Deprive

What is the continuing trespass exception to larceny?

1. No intent to steal at time of taking - but turns into larceny if you decide to keep it later down the line 

What are the four elements of burglary?

Breaking & Entering

Dwelling of Another

At Nightime

With intent to commit a felony

Does the intent to commit a felony have to be present at the time of breaking for burglary?

Yes

Does the felony have to actually be committed for burglary?

No

What are the four elements of robbery?

Trespassory Taking

Carrying Away

Property of Another

By Force, Intimidation, or Fear

What is assault?

Intent to commit a battery

Can you commit assault through words only?

Generally not.

What is Larceny by trick?

Obtain POSSESSION of property by false statement

What is false pretenses?

Obtaining TITLE to property by false statement

What are the two elements of embezzlement?

Lawful possession of personal property
Converted for own use

What are the three elements of receiving stolen property?

Physical possession of stolen property

Knowledge it was stolen

Intent to keep

What are the three elements of forgery?

1. Fraudulent making of a false document

2. With legal significance

3. Intended wrongful use

What are the two elements of accomplice liability?

1. Intent to facilitate the commission of a crime (Intent)

2. Assistance in the commission of the crime (Aid/Abet)

Is an accomplice guilty of other underlying crimes committed?

Yes, an accomplice can be held liable for other crimes committed during the commission of the original offense, if they were foreseeable.

Name the four main general intent crimes

Battery, Arson, Rape, Kidnapping

What is battery?

Unlawful application of force

What is arson?

Malicious burning of the dwelling of another

What does malicious mean?

Reckless - Knew or should have known the harm could occur

What are the three requirements of rape?

Lack of consent, use of force or threat, and incapacity of the victim.

What is kidnapping and what are the two ways you can kidnap someone?

1. Unlawful restraint of a person’s freedom by force

   1. Through movement

   2. Hiding the person

What are the three inchoate crimes?

Attempt, conspiracy, solicitation

What are the two requirements for attempt

1. Intent to commit the crime

2. Overt Act or Substantial Step

Does attempt merge into the completed crime?

Yes

Can you be guilty of attempt and the underlying crime?

No

Can you withdraw from attempt?

Not once a substantial step has been made.

What are the three elements of conspiracy?

Two or more people

Specific intent to commit a crime

Agreement

What is the model penal code difference with conspiracy?

Only one person has to agree (think undercover cop)

Is a co-conspirator liable for crimes commmitted in furtherance of conspiracy?

Yes, if forseeable.

Does conspiracy merge with the completed crime?

No

Can you be guilty of conspiracy and the completed crime separately?

Yes

Can you withdraw from conspiracy or the crime committed in furtherance of the conspiracy?

1. Cannot withdraw from the conspiracy

2. Can withdraw from other crimes committed in furtherance of the conspiracy by timely notice to co-conspirators

What is solicitation?

Encourage, urge or incite another to commit a crime

Does solicitation merge into the completed crime?

Yes

Can you be guilty of solicitation and the underlying completed crime?

No

Can you withdraw from solicitation?

No

What are the five main defenses to a crime?

Insanity
Intoxication

Mistake

Entrapment

Self Defense

What is the M’Naghten Test?

Mental Disease

Cannot understand the “nature and quality” of your actions

What is the model penal code insanity defense?

Defendant lacked “substantial capacity” to appreciate criminal conduct

What types of crimes is voluntary intoxication a defense to?

Specific intent crimes

What types of crimes is involuntary intoxication a defense to?

All crimes

What is the difference between mistake as a defense to specific intent vs. general intent crimes

1. Mistake - Specific Intent Crime:

   1. Reasonable AND Unreasonable mistakes are defenses

2. Mistake - General Intent Crime:

   1. Only a reasonable mistake is a defense

What is the difference between legal and factual impossibility and when are they a defense?

1. Legal Impossibility 

   1. Always a defense

   2. Elements of the crime were not met

2. Factual Impossibility

   1. Never a defense

   2. Elements of the crime were met

What are the two elements of entrapment?

Law Enforcement creates criminal activity

Defendant not predisposed to committing a crime

What is the defense of duress and the one exception to this defense?

A defense claiming that the defendant was compelled to commit a crime due to an immediate threat of serious harm or death. The exception is that duress is not a defense to murder charges.

What is self-defense?

1. Reasonable belief of imminent danger

2. Return the same level of force

3. Deadly force only allowed for deadly force

What is the defense of others?

1. Reasonable belief a third party is in imminent danger

2. Return the same level of force

Can you use deadly force to defend property?

1. Never deadly force unless fear of being killed 

What are the three main requirements for Search and Seizure

1. Government Action

2. Search

3. Probable Cause

Does someone asked by the police to search meet the requirement of government action?

Yes.

What location constitutes a “search”?

Anywhere someone has a reasonable expectation of privacy

What is the open field doctrine?

Open areas with no expectation of privacy (not a search)

Define probable cause

A reasonable person would conclude it is more probable than not that a crime has taken place

What single requirement do searches generally need

You need a warrant

What are the four elements of a warrant?

1. Issued by neutral magistrate

2. Facts must be fresh, not out of date

3. Person/Places must be specific

4. Cannot exceed the scope of the warrant

Can a government figure search without a warrant if they have consent?

Yes, as long as the consent is voluntary and informed.

Can a government actor search someone after a lawful arrest without a warrant?

Yes, within the wingspan of the person

What are the two requirements for a cop to search the passenger compartment of someone after arresting them?

1. Occupant is unsecured

2. Reasonable belief of evidence of crime of the arrest

What is an inventory search?

1. After arrest at the police station, police can search the person/car

What is the exigent circumstances exception to a warrantless search?

1. Reasonable belief evidence may be lost or destroyed

Is illegal evidence admissible in an automobile stop where the person was pulled over without a traffic violation?

No

Can police search the car of someone that they pull over for a legal automobile stop?

No, unless they have probable cause or evidence of other crime. If so, the entire car can be searched.

Is a warrant required for a border search?

No, it is not necessary

Can US officials search you without a warrant on foreign land?

Yes, they can conduct searches without a warrant in certain circumstances.

Is a dog sniffing a “search” in a public place?

Not a search in a public place

Explain the difference between a Terry Stop and a Terry Frisk

1. Stop: Reasonable suspicion of criminal activity

2. Frisk: Reasonable belief person is armed and dangerous

Explain the automobile checkpoint warrant exception.

Allowed with generic, uniform method for stop

What is the plain view rule?

Police can seize what is in plain view during a lawful search

Once a cop finds the item listed on the warrant, can they keep searching the facility?

Once cop finds items they are looking for, they cannot keep searching

Does an illegal search dismiss the indictment?

Not automatically; the evidence may be suppressed but the indictment can stand based on other evidence.

What is a protective sweep?

Search for additional criminals

Allowed for safety with proof of others present

What are the two elements of Miranda

1. Custody

2. Interrogation

Define custody

Reasonable person would not feel free to leave (objectively)

Define interrogation

Police attempting to elicit a criminal response

Do police officers have to give the Miranda rights immediately?

No, only before custodial interrogation.

If a suspect volunteers information, are Miranda rights necessary?

No, Miranda rights are not necessary if the suspect voluntarily provides information without prompting.

What are the Miranda warnings?

1. Remain Silent

2. Anything can be used against you

3. Right to attorney

4. If you can’t afford one, you’ll get one

Can cops ask any questions after you request a lawyer for the specific charge or a different charge?

No, they cannot interrogate you.

Can police place an undercover officer in someone’s cell after indictment? Informant?

No, this is not allowed. (Violation of right to counsel)

What are the two elements required to waive your Miranda rights?

1. Knowingly

2. Voluntarily

What is the buzzword phrase for custodial interrogation for Miranda purposes?

Totality of the circumstances

What is the Fifth amendment right to self-incrimination?

When a person refuses to testify because their answers might incriminate them (could lead to criminal charges), they are exercising their Fifth Amendment right against self-incrimination.

Can someone be required to perform physical acts?

Yes, under certain circumstances they can be compelled to do so.

Do you have a right to counsel prior to indictment? after indictment?

1. No right to counsel PRIOR to indictment (5th Amendment)

2. Right to counsel AFTER indictment (6th Amendment)

What is the sentence length requirement to ask for a jury trial?

A sentence of six months or more.

What is the upper and lower limit of the number of jurors in a federal trial?

The upper limit is 12 jurors, while the lower limit is 6 jurors.

What is a grand jury proceeding?

A legal process where a group of jurors reviews evidence to determine if there is sufficient cause to charge an individual with a crime.

Accused has no right to be present

Witness has no right to counsel inside the room

Exclusionary rule does not apply

What is the right of confrontation?

The constitutional right of a defendant to confront and cross-examine witnesses testifying against them during a trial.

Can a co-defendant’s confession be used against the other if they are not testifying?

Generally, a co-defendant's confession cannot be used against another co-defendant if they do not testify, as it violates the confrontation clause of the Sixth Amendment.

What is the prosecutions burden?

All elements beyond a reasonable doubt