Professional Documents
Culture Documents
Crim Law Bar
Crim Law Bar
d)
e)
f)
g)
h)
i)
j)
k)
First degree murder (MBE will tell you if its first degree murder)
Assault
Larceny
Embezzlement
False pretenses
Robbery
Burglary
Forgery
8) Malice Crimes
a) Murder
b) Arson
9) General Intent Crimes
a) All other crimes not above-mention unless it qualifies for strict liability
b) E.g., Battery, Rape, Traffic offenses
10) Strict Liability (No Intent Crimes)
a) No adverbs (knowingly, willfully, etc) and
b) Administrative, regulatory, or morality crimes
c) If the crime is a strict liability crime, any defense that negates intent cannot be raised
11) Transferred Intent
a) A tries to kill intended victim but kills actual victim instead
b) Murder charged for killing the actual victim (malice crime)
c) Attempt charged for attempting to kill the intended victim (specific intent crime)
d) NEVER merge any crimes that have different victims
12) Accomplice Liability
a) Accomplices liable for
i) Crime itself and
ii) All other foreseeable crimes
b) NEVER give parties accomplice liability unless they are actively in on the crime
13) Solicitation
a) Asking someone to commit the a crime
b) Solicitation becomes a crime when you ask someone to commit a crime
c) If the person agrees, the crime is no longer solicitation but conspiracy
d) Solicitation merges into the conspiracy and only conspiracy remains
14) Conspiracy
a) Express or implied agreement
b) Intent to agree
c) Intent to pursue unlawful objective (MUST BE PURSUING UNLAWFUL OBJECTIVEi.e., agreeing to sneak
into your own house is not unlawful)
d) Overt Act
i) Majority View: ANY act, however slight, in furtherance of the conspiracy (e.g., showing up at the site of the
intended crime)
ii) Minority View: (MBE will tell you if its a minority JDrests on the agreement alone and no overt act
required)
e) Liability: Each conspirator is liable for all crimes of other conspirators IF
i) Foreseeable and
ii) Committed in furtherance of the conspiracy
f) Impossibility is NOT a defense to conspiracy
g) Withdrawal
i) Cannot withdraw from the conspiracy once committed
ii) If withdrawal, no liability for subsequent crimes of co-conspirators
15) Attempt
a) Specific intent and
b) Substantial step more than mere preparation
c) In the direction of the commission of the crime
d) Impossibility is not a defense unless attempted receipt of prescription drugs with a forged prescription (VERY
RARE and VERY WEIRD)
16) Insanity Defense
a)
McNaughton Rule
i) At time of act, lacked ability to know wrongfulness or
ii) unable to understand the nature and quality of actions
Durham Rule
i) Conduct was the product of mental illness
17) Intoxication
a)
Voluntary Intoxication
i) Addicts and alcoholics
ii) Defense only applies to specific intent crimes (not to general intent or malice crimes)
b) Involuntary
i) Where party is boozed up without his/her knowledge
ii) Treated like mental illness
iii) Defense to ALL crimes
18) Infancy
a) Under 7 = NO criminal liability
b) Under 14 = rebuttable presumption of NO criminal liability
19) Self Defense
a)
Non-deadly Force
i) Reasonable belief
ii) Force is about to be used on them
Minority Rule for Deadly Force: Retreat Jurisdictions (MBE will tell you)
i) Must retreat if possible unless
(1) Youre in your own home
(2) Youre being raped or robbed
(3) Youre a police officer
d) Original Aggressors
Application of Defense
ANY Mistake, whether reasonable or unreasonable
23) Consent
a) Consent of the victim is NEVER a defense
24) Entrapment
a) Defense does NOT apply if is predisposed to commit the crime
b) is ALMOST ALWAYS predisposed to commit the crime so it usually doesnt apply
25) Battery
a) General Intent Crime
b) Battery is a completed assault
26) Assault
a) Majority View: Attempted battery assault (specific intent crime)
b) Minority View: Threaten with bodily harm (general intent crime)
27) Murder
a) Intent to kill
b) Intent to cause great bodily harm
c) Depraved heart murder
d) Felony murder
28) Voluntary Manslaughter
a) PASSION killing
b) EXTREME provocation
29) Involuntary Manslaughter
a) Killings from criminal negligence
b) Misdemeanor manslaughter (killing during commission of misdemeanor or unenumerated felony)
30) First Degree Murder: MBE Ways to Test
a) Say First Degree Murder
b) Give you a statute
31) Felony Murder
a) Death during the commission of a felony
b) Felony is either enumerated or inherently dangerous
e) At night
f) With the intent to commit a felony therein (at common law, not assault, not battery)
g) Intent must exist at the time of the breaking and entering
41) Arson
a) Malicious burning
b) Dwelling house
c) Of another
d) Material wasting of fiber of building by the fire
e) No explosions, water damage, or smoke damagemust be damage from FIRE
Definition
i) Prohibits the introduction of evidence obtained in violation of a criminals 4th, 5th, and 6th Amend. rights
ii) At a criminal trial
f)
(1) Ex: Prosecution had an illegally obtained shirt that the cut holes out of to make pockets to smuggle
drugs. took the stand and said he never smuggled drugs with a shirt. Prosecution brought in the shirt.
(2) Illegally obtained evidence is never admissible to impeach a witness other than the .
3) Fourth Amendment
A) Arrests and Other Detentions
i) Public Place Exception
(1) Police do not need a warrant to arrest a in a public place.
ii) Home Arrests Require Warrant
(1) Police must have an arrest warrant to do a non-emergency arrest in someones own home.
iii) Station House Detention
(1) Police officers must have full probable cause for arrest to bring a suspect to the station house for
questioning or fingerprinting.
b) Evidentiary Search and Seizure (8 MBE ?s)
i) Does the have a 4th Amend. right?
(1) Was there governmental conduct?
(a) Either the publicly paid police or
(b) Citizens acting at their discretion or
(c) Private security guards deputized as officers of the public police w/ the power to arrest.
(2) Did the have a Reasonable Expectation of Privacy?
ii) If the had a 4th Amend. right, did the police have a valid warrant?
iii) If the police did not have a valid warrant, did they make a warrantless search and seizure?
iv) If so, is it subject to the Good Faith Defense?
c)
d) Standing
i) Automatic Standing
(1) owned or had a right to possession of the place searched, including their own body.
(2) Place searched was in fact the s home, whether or not she owned or had a right to possession of it (Ex:
Grandson who lived at Grandparents house)
(3) was an overnight guest of the owner of the place searched
ii) Sometimes Standing Examples
(1) owns the property seized.
(2) legitimately present when the item or area was searched.
iii) Things Held Out to the Public (No REOP) (9 Examples)
(1) Sound of ones voice.
(7) Automobiles movement on public
(2) Ones handwriting.
roads and arrival at a private residence,
(3) Paint on the outside of a car.
even if detection of movement requires
(4) Smell of ones luggage and other odors
a tracking bug.
(i.e., drug dogs).
(8) Open Fields Doctrine.
(5) Account records held by bank.
(9) Fly-over
(6) Garbage.
e)
Requirements of a Warrant
(1) Issued by a neutral and detached magistrate.
(2) Based on probable cause.
(3) Particularly describes the place to be searched and the items to be seized.
(a) If affidavit of probable cause is based on information obtained from informers, its sufficiency is
determined by the totality of the circumstances.
(b) Warrant may be based on hearsay.
iii) Warrant Must Be Precise on Its Face (1 MBE ?)
(1) Warrant must state with reasonable precision the place to be searched and the things to be seized.
(2) Requirement is strictly enforced.
(3) Ex 1: Warrant for 416 Oak Street issued but the address is a duplex. In a multi-unit dwelling, the warrant
must say what unit to search. But if the police reasonably believe there is only one unit, anything they
discover from the wrong unit before they realize their mistake is admissible.
(4) Ex 2: Warrant issued for specific documents and other fruits and instrumentalities unknown at that
time was valid in a complex criminal fraud case. The police had a difficult time predicting exactly what
form the evidence to prove guilt could take.
iv) Neutral and Detached Magistrate (1 MBE ?)
(1) Magistrate must be neutral and detached from business of law enforcement.
(2) No good faith defense available if magistrate is not neutral and detached.
(3) Example: Clerk of court issuing warrants for violations of city ordinances is neutral & detached
(4) Not Neutral and Detached
(a) State attorney general.
(b) Magistrate who doesnt get paid unless she issues warrants.
(c) Magistrate who comes along in the search
4) Exceptions to Warrant Requirement
a)
b) Automobile Exception
i) Probable cause required
ii) Scope is entire car, interior, compartments, trunk, and containers
iii) Containersmust have PC that the item youre looking for could reasonably be found in the container (i.e.,
drugs search the container; TVs cant search the container)
iv) PC can arise after the car is stopped but MUST arise before anything or anyone is searched
c)
d) Consent Searches
i) Voluntary and Intelligent
(1) NOTE: Where police say they have a warrant, it invalidates consent
(2) NOTE: Police need not warn you that you have a right not to consent
ii) Authority to Consent
(1) Where two or more people have a right to the property or premises
(2) ANY one of the two can consent
e)
f)
Evanescent Evidence
i) Evidence that might go away if police were required to get a warrant (i.e., blood alcohol might go down;
scrapings under fingernails-- might wash his hands, etc.)
ii) No warrant required
g) Hot Pursuit
i) Must be real hot
ii) At most, 15 minutes behind the felon is ok
iii) Search is just about unlimited if the pursuit was valid
iv) Police can go into anyones home, not just fleeing felon
h) Wiretapping & Eavesdropping
i) Both require a warrant
ii) ONLY Exception: Unreliable Ear: Everyone assumes the risk that the person to whom one is speaking with is
wired or working for the police
5) Miranda
a)
Test
i) Custodynot free to leave
ii) Interrogationany conduct where police knew or shouldve known that they would get a damaging
statement from
b) Warnings
i) Right to remain silent
ii) Anything said can be offered against you in court
iii) Right to an attorney during interrogation
iv) If you cant afford one, theyll give you one
c)
d) Waiver
i) Voluntary
ii) Intelligent
iii) NOTE: Where says nothing or shrugs his shoulders, NO WAIVER
e)
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Remedy
i) Exclude any in-court identifications
ii) Exception: Independent sourcewhere prosecution can show ample opportunity apart from faulty lineup
to identify at time of the crime (i.e., victim spent 40 minutes with the at gunpoint)
8) Bail
a) Immediately appealable
b) Preventative detention is constitutional
9) Grand Juries
a) States need not use grand juries
b) Charge by information
c) Exclusionary rules do not apply during grand jury
d) Proceedings are secret: has no right to appear or send witnesses
10) Trials
a)
Juries
i) At least six and must be unanimous
ii) No right to jury of 12
iii) Supreme Court has recognized non-unanimous jury trials (10-2 or 9-3)
d) Cross-Sectional Requirements
i) Right to have jury pool reflect cross section of the community BUT
ii) No right to have your own cross-section of the community
e) Discrimination in Voir Dire
i) Prosecution or Defense
ii) Preemptory challenge
iii) Cannot exclude based on race or gender
f)
ii) Colloquy
(1) Court must address the personally ON THE RECORD
(a) Nature of the charge
(b) Maximum authorized sentence and any mandatory minimum sentences
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Attaches
i) Jury trial: when jury is sworn
ii) Judge trial: when first witness is sworn
iii) Does not attach when proceedings are civil
c)
Same Offense
i) Two crimes do not equal the same offense if each crime requires proof of an additional element that the
other does not require
ii) Lesser Included Offenses
(1) Jeopardy for greater offense bars retrial for lesser offense
(2) Jeopardy for lesser offense bars retrial for greater offense unless
(a) charged with battery
(b) Victim dies
(c) can be retried for murder
d) Separate Sovereigns
i) Double jeopardy does not apply if tried for same crime in different states, federal JD and state JD
ii) Jeopardy DOES apply for state and locality
14) Fifth Amendment Compelled Testimony
a)
Standard
i) Anybody, Any case, and Under oath
ii) Response might tend to incriminate
iii) Civil casesmust assert privilege or you waive for all subsequent criminal prosecutions
b) Scope
i) Protects against compelled testimony
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Prosecutors Comments
i) Unconstitutional for prosecutor to make negative comments on
(1) s failure to testify or
(2) s silence after Miranda warnings
d) Elimination of Privilege
i) Use or Derivative Use Immunity
ii) It would be impossible to incriminate yourself (e.g., statute of limitations runs out; they can compel you
because you cant be held liable after SOL runs out)
iii) Waiver
(1) takes witness stand
(2) Waives as to all legitimate subjects of cross-examination
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