Criminal Law Test

Direct Evidence

Evidence that is based on personal knowledge or observations. Direct evidence, if true, proves a fact without the need of interferences or presumptions.

Examples: surveillance of video of robbery, a witness who saw a suspect strike the victim of an assault and battery.

Circumstantial Evidence

Evidence that is based upon inference and not on personal knowledge or observations.

For example if a suspects fingerprint was found at the scene of the convince store robbery, a jury could conclude that the suspect was in the store at some point, but the fingerprint is not direct evidence that suspect committed the robbery.

Physical Evidence

Evidence that is tangible and may be Direct or Circumstantial. Physical evidence includes objects, property, or items seized at the crime scenes or during searches.

Testimonial Evidence

Evidence that is from statements made by victims, witnesses, suspects, or police. Statements may consist of personal observations/knowledge (direct evidence) or may involve the communication of information from which one may conclude facts (circumstantial).

Examples: Statements made directly to police, spontaneous utterances overheard by witnesses, written statements, interview and interrogation recordings.

Circumstantial (Testimonial) Evidence

Other facts from which reasonable conclusions can be drawn. For example, a witness may testify that he saw the mailman at his mailbox. This is circumstantial evidence that the mailman has been there; no one saw him, but one can reasonably infer the at he has been there because there is mail in his mailbox.

Also includes: Hearsay, Spontaneous Exclamations, and Spontaneous utterances.

Hearsay Testimony (Circumstantial)

Second Hand knowledge about what another person said about what they saw, heard, or felt. Generally a witness cannot testify at trial about what another person told them, but one exception is statements made by a defendant.

Exculpatory Evidence

Evidence that includes statements which are helpful to the defense. This includes information that corroborates the defendants story, calls into question a material element of the commonwealths version of events or challenges the credibility of a key witness for the prosecution.

Relevant Information

Necessary for evidence to be admissible in court. Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action.

Reliable Information

The value of physical evidence is directly related to a reliable chain of custody. Must be in the same condition that it was in when originally seized by police.

Reliable = Chain of Custody

• Meticulous and chronological documentation of evidence the moment it is seized, to tits presentation in court. Lists EVERY PERSON that came into direct contact

  Best Practice:

  • Date, time, location

  • Name of officer who seized

  • All dates and times evidence was received or transferred to another person

  • Names of all people who came in contact with evidence

  • Full description for positive identification

Criminal Intent (Mens Rea)

For an act to be criminal, it must be committed with a criminal mind (intent)

General Intent: Offender knowingly acts but does not necessarily desire the consequences of the act. Does not require offenders to know they are breaking the law, just to commit the act.

Transferred Intent: Offender intends to harm one person but ends up harming another. The offenders intends to harm one o person but ends up harming another.

Accident (intent)

An unexpected happening that occurs without intention or design on the suspects part

Knowingly (intent)

The actor engaged in prohibited conduct with the knowledge that the social harm that the law was designed to prevent was practically certain to result; deliberately

Malice (intent)

A state of mind of cruelty, hostility, or revenge.

Negligent (intent)

The failure to use that degree of care which a ORPP would use under the circumstances.

Reckless (intent)

A person is reckless if they “knew, or should have known, that such actions were very likleley to cause substantial harm to someone, but did it anyway.

Wanton (intent)

Conduct where the actor knew it would create a risk of substantial damage or destruction to another’s property, or a reasonable person - knowing what the actor knew - would have realized the act posed a risk of substantial damage to or destruction of another’s property.

Willful (intent)

Voluntary and intentional but not necessarily malicious.

Larceny vs. Robbery

Robbery is a larceny from a person by force and violence OR by assault and putting in fear. A larceny (or stealing) is an unlawful taking of another’s personal property with the intent to deprive that person of such property permanently.

Statute of Limitations

For most crimes in MA = 6 years

Murder = No statute of limitations

Certain Sex crimes against children = No statute of limitations

Armed Robbery = 10 years

Rape = 15 years

Tolling of the statue of limitations

Suspension or extension of the time period allowed for legal action to be initiated under the statute of limitations.

• Suspect living outside of MA

• Age of victim

• Lesser included offense

Responsible Parties

Principal: person who commits the crime

Aiding or Abetting: 2 elements

1. Suspect knowingly and intentionally participated in some meaningful way in the commission of the alleged offense.

2. The suspect did so with the intent required for that offense

Accessories:

• Before the fact: defendant is accused of having been an accessory to a felony before that felony was committed. 3 elements must be proven:

  1. Someone other than the defendant committed the felony

  2. Accessory provided council, hiring, Orin some other way arranging for the person to commit the felony

  3. Accessory did so with the intent as the principle

Accessory does not need to physically take part in the crime itself.

• After the fact: Suspect knows that the principal committed a felony and aids principal to avoid apprehension or punishment.

  • Does not need to have any advance knowledge of crime committed or take part in any planning or execution of the crime.

  • Cannot be spouse, parent, grandparent, child, grandchild, or brother/sister of the principal

Attempt

Whoever attempts to commit a crime by doing an overt act toward its commission and was reasonably close to, but fails to complete the crime.

(Murder, extortion, and arson have separate statures for attempt)

Conspiracy

Agreement between two or more people to do something unlawful.

3 Elements:

1. Person joined an agreement or plan with one or more persons

2. Purpose of that agreement was to break the law

3. Person joined the conspiracy knowing the plan was unlawful and planned to help carry it out.

Not necessary for conspirators to develop a formal agreement, meet, or agree on every detail of the plan.

Solicitation of a Felony

This charge prohibits someone from soliciting, counciling, advising, or otherwise enticing another to commit a felony.

Assault

Two Types:

1. Attempted Battery: Suspect intended to commit a battery, took some overt action, and came reasonably close to committing battery

2. Threatened Battery: Suspect intended to put victim in fear of an imminent battery, engaged in some conduct toward the victim, and the victim reasonably perceived that conduct as imminently threatening a battery

Right of Arrest: Presence or Warrant (MISDEMEANOR)

Assault by Dangerous Weapon

Suspect attempted a battery or threatened to commit a battery with the intent to cause fear by using a dangerous weapon.

Either using an inherently dangerous weapon or an every-day item that is used in a dangerous fashion in a way that it appears to be capable of serious injury or death. (No part of the human body is a dangerous weapon)

Right of Arrest: FELONY

Assault and Battery

A&B is the intentional and unjustified use of force upon another person, or the intentional doing of a wanton or grossly negligent act causing personal injury due to another.

2 types:

1. Intentional: 3 elements

   1. Suspect touched another person

   2. Suspect intended to touch the other person

   3. The touching was wither likely to cause bodily harm or was offensive.

2. Reckless: 2 elements

   1. The suspect intentionally engaged in actions which caused bodily injury to another

   2. Actions amounted to reckless conduct

Right of Arrest: Presence or Warrant (Misdemeanor)

Assault and Battery by Dangerous Weapon

2 Types:

1. Intentional: There are 3 elements:

   1. The suspect touched another person

   2. The suspect intended to touch the other person

   3. The touching was done with a dangerous weapon

2. Reckless: There are 3 elements:

   1. The suspect engaged in actions that caused bodily injury to the victim

   2. The bodily injury was done with a dangerous weapon

   3. The suspects actions amounted to reckless conduct

• The bodily injury must be serious enough to interfered with the victims health or comfort.

Assault in dwelling house with dangerous weapon

There are three (3) elements:

1. The suspect entered a dwelling that was not their own while armed with a dangerous weapon.

2. The suspect assaulted another person while inside the dwelling; and the assault was committed with the specific intent to commit a felony.

Right of Arrest: FELONY

There are enhanced penalties if the dangerous weapon is a firearm, shotgun, rifle or assault weapon.

Assault and assault and battery by means of hypodermic syringe or needle

Elements:

1. Commits an assault or assault and battery by using a hypodermic syringe, hypodermic needle, or any instrument adapted for the administration of controlled or other substances by injection.

Right of Arrest: FELONY

Aggravated assault and battery

Assault and battery is aggravated in three (3) situations:

1. if it results in serious bodily injury

2. Is committed upon a person the suspect knows or has reason to know is pregnant

3. Is upon someone the suspect know has an active restraining order against the suspect.

Right of Arrest: FELONY

Serious Bodily Injury is bodily injury that results in permanent disfigurement, loss of impairment of a bodily function, limb or organ, or a substantial risk of death.”

Assault and battery crimes against specific persons

Assault and battery with a dangerous weapon on person 60 years of age and older FELONY.

Assault and battery upon elderly or disabled persons FELONY. Enhanced penalties if assault and battery results in bodily injury or serious bodily injury.

Assault or assault and battery; pregnant person; FELONY.

Assault and battery upon a child under 14 years old with bodily injury or substantial bodily injury; FELONY.

Assault and battery upon public employees (including police officer)

Elements:

1. The victim was a public employee (including police officer);

2. The suspect knew the victim was a public employee (police officer);

3. The victim was engaged in the performance of their duty at the time of the alleged incident; and

4. The suspect knew that the victim was engaged in the performance of their duty at the time of the alleged incident

Right of Arrest: PRESENCE unless allowed as detailed below

FELONY if the assault and battery includes an attempt to disarm a police officer in performance of their duties

FELONY if the assault and battery is upon a police officer and causes serious bodily injury to a police office

Assault or assault and battery on health care provider

Whoever commits an assault OR assault and battery; upon an emergency medical technician, ambulance operator, an ambulance attendant or a health care provider; and while he/she is treating or transporting a person in the line of duty.

Right of Arrest: PRESENCE or WARRANT (Misdemeanor)

Assault and battery to collect a loan

Whoever commits an assault and battery upon another for the purpose of collecting a loan shall be punished.

Right of arrest: FELONY

Armed Robbery

Elements

There are six (6) elements

a) The suspect took and carried away property;

b) The property was owned or possessed by someone other than the suspect;

c) The suspect took the property from someone who owned or possessed it or from such person’s area of control or presence;

d) The suspect did so with the intent to deprive that person from the property permanently;

e) By force and violence OR by assault and putting in fear; and

f) The suspect did so while armed with a dangerous weapon.

Right of Arrest: FELONY

Unarmed Robbery

Elements

There are five (5) Elements

a) The suspect took and carried away property;

b) The property was owned or possessed by someone other than the

suspect;

c) The suspect took the property from someone who owned or

possessed it or from such person’s area of control or presence;

d) The suspect did so with the intent to deprive that person from the

property permanently;

e) By force and violence OR by assault and putting in fear;

Right of Arrest: FELONY

Larceny from the person

The suspect took and carried away property;

b) The property was owned or possessed by someone other than the suspect;

c) The property was taken from someone who owned or possessed it or from that person’s area of control or their presence; and

d) The suspect did so with the intent to deprive the victim of the money or the property permanently.

Right of Arrest: FELONY

(Lesser included offense of unarmed robbery)

Stealing by confining or putting in fear

Larceny or felony does not need to be successful.

Right of Arrest: FELONY

Serious bodily injury

defined as bodily injury that results in a permanent disfigurement, loss or impairment of a bodily function, limb, or organ or creates a substantial risk of death.

Criminal harassment

Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be punished.

Elements

There are five elements

First: That the suspect engaged in a knowing pattern of conduct or speech, or series of acts, on at least three separate occasions;

Second: That the suspect intended to target [the alleged victim] with the harassing conduct or speech, or series of acts, on each occasion;

Third: That the conduct or speech, or series of acts, were of such a nature that they seriously alarmed [the alleged victim] ;

Fourth: That the conduct or speech, or series of acts, were of such a nature that they would cause a reasonable person to suffer substantial emotional distress; and

Fifth: That the suspect committed the conduct or speech, or series of acts, willfully and maliciously.

Right of Arrest: WARRANTLESS with probable cause is the preferred response under harassment prevention laws

Stalking

Suspect willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period time directed at a specific person which seriously alarms or annoys that person an would cause an ORPP to suffer substantial emotional distress and makes a threat with the intentional doing to place the person in imminent fear of death or bodily injury.

Elements

There are five (5) elements.

First: That over a period of time the suspect knowingly engaged in a pattern of conduct or series of acts, involving at least three incidents, directed at

Second: That those acts were of a kind that would cause a reasonable person to suffer substantial emotional distress;

Third: That those acts did cause [alleged victim] to become seriously alarmed or annoyed;

Fourth: That the suspect took those actions willfully and maliciously.

An act is “willful” if it is done intentionally and by design, and not out of mistake or accident. An act is done with “malice” if the suspect’s conduct was intentional and without justification or mitigation, and any reasonable prudent person would have foreseen the actual effect on.

Fifth: The Commonwealth must prove beyond a reasonable doubt that the suspect also made a threat with the intention of placing [alleged victim] in imminent fear of death or bodily injury.

Right of Arrest: FELONY

NOTE: Stalking requires an additional element of threat when compared to criminal harassment.

Annoying or obscene communication

Whoever telephones another person or contacts another person by electronic communication, or causes a person to be telephoned or contacted by electronic communication, repeatedly, for the sole purpose of harassing, annoying or molesting the person or the person’s family, whether or not conversation ensues, or whoever telephones or contacts a person repeatedly by electronic communication and uses indecent or obscene language to the person.

Right of Arrest: WARRANT (Misdemeanor)

Threat to Commit a Crime

Elements

There are four elements.

First: That the suspect expressed an intent to injure a person, or property of another, now or in the future;

Second: That the suspect intended that their threat be conveyed to a particular person;

Third: That the injury that was threatened, if carried out, would constitute a crime; and

Fourth: That the suspect made the threat under circumstances which could reasonably have caused the person to whom it was conveyed to fear that the suspect had both the intention and the ability to carry out the threat.

Right of Arrest: WARRANT

Larceny by False Pretense

Elements:

1. The suspect made a false statement of fact

2. Suspect knew or believed that the statement was false when they made it

3. Suspect made the statement with the intentional doing that the person whom it was made (victim) believed it was true

4. Victim accepted and parted with person property as a result

Right of Arrest: FELONY (over $1200 or firearm) Warrantless in PRESENCE

Arrestable on P.C if more than $250

Larceny by Embezzlement

3 Elements:

1. The suspect, while in position of trust or confidence, was entrusted with possession of personal property belonging to another person or entity

2. The suspect took that property, or hid it, or converted it to their own use without the consent of the owner

3. Suspect did so with the intent to deprive the owner of the property permanently

Right of Arrest: Felony (if over $1200 or firearm)

Warrantless in PRESENCE

Arrestable on P.C if more than $250

Stealing in a Building

4 Elements

1. The suspect took and carried away property

2. That at the time the property was being kept safe by virtue of being in a building

3. The property belonged to someone other than the suspect

4. The suspect took the property with the intentional doing to deprive the owner of it permanently

Right of Arrest: FELONY (regardless of property value)

Shoplifitng

• Defendant intentionally and unlawfully takes, carries away, or transfers any merchandise displayed or offered for sale by any retail store or retail mercantile and with the specific intent to permanently deprive the merchant of the possession or use of the merchandise 

  • must be a retail store

  • Shoplifting does not apply to wholesale goods

• Misdemeanor 

  • No dollar amount must be satisfied may be committed in presence or view 

  • to arrest: Must be committed in POV or in the past based on P.C

    • if the value of the property is more than $1200 = Felony

    • With respect to shoplifting, P.C is almost always established by the merchant or his/her employees 

Theft Shielding Device 

• possession or distribution of device

• Shields merchandise from store protection

• FELONY

  • POV or past with P.C

Receiving stolen Property

Has to be done knowingly

Misdemeanor on P.C if over $250

FELONY if over $1200 or second offense

B&E with intent to commit a felony

4 Elements:

1. Suspect breaks into

2. Suspect enters

3. Suspect did so with intent to commit a felony

4. Event took place during the nighttime

Right of arrest: FELONY

B&E with intent to commit a Misdemeanor

2 Elements:

1. Break and enter into

2. With intent to commit a misdemeanor

Right of arrest: PRESENCE for breach of pease or WARRANT

(Misdemeanor)

Unarmed Burglary

3 Elements:

1. Breaks and enters a dwelling at night

2. With intent to commit a felony

3. Not armed with a dangerous weapon and does not commit assault

Right of Arrest: FELONY

Armed Burglary

2 Elements:

1. Breaks and enters a dwelling at night

2. Arms his/herself after making enters

3. Assaults a lawful occupant

Right of arrest FELONY

Defacing or Damaging property (Vandalism)

4 Elements:

1. Suspect painted, marked, scratched, etched, injured, marred, defaced, or destroyed property

2. Suspect did so intentionally

3. Suspect did so willingfully with malice or wantonly

4. The property was possessed by someone other than the suspect

Right of arrest: FELONY

Trespassing

2 Elements:

1. Without right, the suspect entered or remained in a dwelling/land/property

2. Suspect was forbidden to endure or remain there by the person in lawful control of the premises, either directly or by means of a posted notice

Right of Arrest: PRESENCE or WARRANT (Misdemeanor)

Resisting Arrest

4 Elements:

1. The defendant prevented or attempted to prevent a police officer from making an arrest of the defendant or of another person.

2. The officer was acting under color of their official authority at the time

3. The suspect resisted

4. The suspect did so knowingly

Right of Arrest: MISDEMEANOR in PoV

Disorderly Conduct

3 Elements:

1. Suspect involved in at lease one of the following actions

   1. Fighting or threatening

   2. Violent or tumultuous behavior

   3. Created a hazardous or physically offensive condition

   4. By an act that served no legitimate purpose of the suspects:

2. The suspects actions were reasonably likely to affect the public

3. The suspect either intended to cause public inconvenience, annoyance or alarm, or recklessly created a risk of public inconvenience, annoyance, or alarm

Right of Arrest: PRESENCE if in public

Tumultuous Behavior

Prohibits 4 separate and distinct acts:

1. It forbids conduct that involves the use of force or violence.

2. It prohibits making threats that involve the immediate use of force or violence.

3. It forbids tumultuous and highly agitated behavior, which may not involve physical violence, but which causes riotous commotion and excessively unreasonable noise, and so constitutes a public nuisance.

4. It forbids any conduct that creates a hazard to public safety or a physically offensive condition by an act that serves no legitimate purpose of the suspect.

Disturbing the Peace

3 Element:

First: That the suspect engaged in conduct which most people would find to be unreasonably disruptive, such as

• making loud and disturbing noise; or

• tumultuous or offensive conduct; or

• hurling objects in a populated area; or

• threatening, quarreling, fighting, or challenging others to fight; or

• uttering personal insults that amount to fighting words, that is, are so offensive that they are inherently likely to provoke an immediate violent reaction;

Second: That the suspect’s actions were done intentionally, and not by accident or mistake; and

Third: That the suspect did in fact annoy or disturb at least one person.

Right of Arrest: PRESENCE if in public. (Misdemeanor)

Noisy and Disorderly House

3 Elements:

1. the suspect kept and maintained, that is, had in whole or in part the direction, control and management of the premises;

2. that the premises was a common nuisance, as a common, ill-governed and disorderly house; and

3. that the suspect so conducted the place as to be responsible therefore

Right of Arrest: PRESENCE if in public. WARRANT following multiple reported incidents (Misdemeanor)

Indecent Exposure

3 Elements:

1. The suspect exposed their genitals to one or more persons

2. Suspect did so intentionally

3. One or more persons were offended by the suspects exposing themselves

Right of Arrest: PRESENCE (Misdemeanor)

Lewd and Lascivious Act

4 elements

1. That the suspect committed or publicly solicited another person to commit a sexual act;

2. That the sexual act involved touching the genitals or buttocks, or the female breasts;

3. That the suspect did this either for the purpose of sexual arousal or gratification, or for the purpose of offending other people; and

4. That the sexual act was or was to be committed in a public place; that is, a place where the suspect either intended public exposure, or recklessly disregarded a substantial risk of public exposure at that time and under those circumstances, to others who might be offended by such conduct.

Note: For this offense, the suspect either intended public exposure or recklessly disregarded the risk of public exposure to others who may be offended.

Right of Arrest: PRESENCE if in a public place (Misdemeanor)

Annoying or accosting persons

4 Elements:

1. Suspect knowingly engaged in an offensive and disorderly act, or language

2. The suspect intended to direct that conduct/language to a person

3. That person was aware of the suspects conduct and/or language

4. That conduct would be offensive and disorderly to an ORPP

Right of Arrest: PRESENCE if in a public place

Improper Storage of a Firearm

Right of Arrest: ONLY WARRANT

Possession of a Sawd-Off Shotgun

1. Barrel is less than 18in

2. Overall length is less than 26in

FELONY

Discharge of Firearm within 500ft of a dwelling

• Without consent of owner or legal occupant of dwelling

Right of Arrest: ONLY WARRANT

Carrying loaded Firearm while under the influence

No power of arrest, SUMMONS

Request right to revoke from issuing agency

Car Jacking

FELONY

FIREARM Specifications

Firearms = Stun Gun or a pistol or a revolver

• Can either be loaded or unloaded 

• Can fire a shot or a bullet 

• It will have a barrel length of less than 16in

• If it is a shotgun, barrel length of at least 18in

Shotgun = smooth bore barrel length 18 inches or greater 

Rifle= rifled bore and a barrel length 16in or greater

Drinking Alcohol in Public

Elements:

Whomever

a) in a street or elsewhere in a town

b) willful violation of an ordinance, by-law or government regulation;

c) the substance of the ordinance or bylaw is the drinking or possession of alcoholic beverages may be arrested without a warrant by an officer in the place where the offense is committed.

Right of Arrest: PRESENCE

Sale or delivery of alcohol to minors under 21

There are four (4) elements.76

First: That the suspect knowingly or intentionally supplied, gave, or provided a beverage to someone, or allowed someone to possess a beverage on premises or property owned or controlled by the suspect;

Second: That the person to whom the beverage was furnished was under 21 years of age;

Third: That the beverage in question was alcohol or an alcoholic beverage; and

Fourth: That the suspect knew that the beverage was alcohol or an alcoholic beverage.

Right of Arrest: WARRANT

Transporting Alcoholic Beverages

A person may, for their own use, transport the following maximum quantities without a permit:

• 20 gallons of malt beverages

• 3 gallons of alcoholic beverage

• 1 gallon of alcohol

Whoever knowingly transports any alcoholic beverages or alcohol.

Right of Arrest: PRESENSE (Misdemeanor)

Dangerous weapons as a matter of law

• 5 Year FELONY for mere possession 

  • Unlicensed firearm 

  • Double edged knife 

  • Black jack 

  • Sap 

  • Brass knuckles 

  • Nun-chuks 

  • Shuriken 

  • Slung-Shot

  • Arm band with spikes

Dangerous weapon per se does not include a switchblade 

Comm v. Conjura 

• Human teeth are not a dangerous weapon as a matter of law (refer to mayhem chapter 265 section 14) 

Protective Custody as a Result of Alcohol Incapacitation

• the individual is in protective custody then the individual is NOT under arrest, they are in custody. 

• Requirements: 

  • Individual is unconscious or needs medical attention or is disorderly and likely to cause physical harm to him/herself or another or property 

  • Thus, police may take the individual into protective custody 

  • Individual my be transported to either 

1. Alcohol treatment facility 

2. His or her home 

3. To police station 

• If transported to police station, the individual has the right to the use of the phone and the right to a breathalyzer test

• Presumptions regarding B.T = 

1. If B.T result is .10 or higher then presumption is incapacitated 

2. if the result is .05 or lower then the presumption is not incapacitated and must be immediately released 

3. Grey area = result is greater than .05 but less than .01 then there is no presumption either way BUT individual is not automatically released and may be held

4. Individual may be held at a police station for a max of 12 hours

5. Person may not be transported to Salvation Army or some other charitable institution