Show Complete List in Table format Hide Complete List in Table format
Terms Definitions
(Statement)Entrapment defenseAvailable as a defense where D is unpredisposed to commit the crime prior to contact by the government (police). N/A
Are status crimes C? No.
(Statement)Criminal Liability for Failure to Act when there is a legal duty to actDuty may arise by:1) statute2) contract3) by creation of victim's peril4) relationship (parent-child, husband-wife) N/A
16(b): what is it? INSIDER TRADING
voluntary manslaughter intentional criminal homicide committed without malice

MITIGATING FACTORS:
- imperfect self-defense
- unreasonable mistake of fact
- coercion
- voluntary intoxication
- mental disease
- anger
- heat of passion
Actus Reus D must act voluntarily.
Closing Arguements The final arguments brought by the defendant and the prosecutor to have the jury find it in their favor(the final arguments aren't evidence)
crimes against government contempt, perjury. bribery, etc.
false pretenses MENS REA: specific intent
ACTUS REUS:
- fraudulent misrepresentation
- which causes V to pass title to personal property

MAJORITY: past or present only!
MINORITY: past, present, or future
Attempt: Is factual impossibility a defense? NO.
Merger A previously distinct offense is subsumed within a greater offense; the defendant can be convicted of either, but not both, offenses.
Conspiracy Elements

1) Agreement between 2 or more persons
2) Intent to achieve a criminal objective

-Conspiracy does not merge
- Defenses: Withdrawal is no defense at common law.
-MPC: Defense is if D thwarts the success of the planned activity
Overbroad the gov't protects against illegal and legal speech
Content based regulations the gov't can't suppress speech just because someone doesn't like it or finds it offensive.
General intent crimes Intended to do the crime
Miranda - were they ENTITLED to Miranda warning?
- D GIVEN full & adequate Miranda warning?
- D intelligently & knowingly WAIVED rights?

+ General considerations:
- statements obtained in violation of Miranda can be used to impeach!
- once D invokes right to counsel, STOP
- unless he initiates
- public safety exception
- not applicable to roadside stops, booking statements or grand jury proceedings
mayhem MENS REA: actual intent or wanton conduct
ACTUS REUS: maiming or disfiguring another with malice
degrees of murder FIRST DEGREE
- intentional criminal homicide
- express malice aforethought
- premeditation & deliberation

SECOND DEGREE
- intentional criminal homicide
- express or implied malice aforethought
- no premeditation/deliberation
- no mitigating factors
MISTAKE OF FACT: - depends on REASONABLENESS.
- specific intent crimes: unreasonable mistake of fact is a defense!
Does violation of knock & announce rule invoke exclusionary rule? No.
Custody Physical control of property, but the use of the property is limited by another's lawful possession of the property.
Retreat An avenue of safe escape; a prerequisite to self defense in some jurisdictions.
Embezzlement 1) Fraudulent conversion of the
2) personal property of another by one in lawful possession
Element Analysis Find the defendant guilty by proving each and every element of the crime beyond a reasonable doubt.
Felony crimes that are in state prisons, or over one year incarceration.
Second degree murder - intentional criminal homicides with malice but WITHOUT premeditation or deliberation
- includes all murders that aren't 1st degree
Can Def waive right confrontation? "Yes, through wrongdoing (intimid). @fed level, standard is prepond"
What is fornication? Sexual intercourse / open & notorious cohabitation by unmarried persons.
Can cop who has Reas suspicion traffic law has been violtd pull someone over even if their ulterior motive is investig violation of some other law? Yes.
Legal impossibility A claim of defense because the defendant's state of mind precludes commission of a recognized crime.
Permissive inferences A possible conclusion that may be drawn but is not exclusively required if certain predicate facts are proved.
Constructive possession Occurs when a controlled substance is in a place accessible to the defendant and subject to the defendant's control.
Reasonably prudent person standard Measures the defendant's actual conduct against that of a reasonably prudent person under the same or similar circumstances.
Implied consent laws Possession of a drivers license mandates voluntary submission to blood, breath, or urine tests; refusal to submit results in a suspension of the defendant's driver's license.
Specific Intent crime Requires an actual subjective intent to cause a specific result
Insanity Defense(ALI/MPC test) D lacks the substantial capacity either to

1) appreciate the criminality of his conduct
2) conform his conduct to the requirements of the law
homicide analysis - actus reus
- mens rea
- 1st degree murder
- 2nd degree murder
- voluntary manslaughter
- involuntary manslaughter
- defenses
If a statute is meant to protect a class of people, can they be found guilty under that statute? NO.
aggravated assault use deadly weapon or intend to murder, rape or maim
What type of intent is required for attempt? Specific intent.
What are the elements of solicitation? "1) Inciting, counseling, advising, urging, / commanding another to commit crime, 2) w/ intent P solicited commit crime"
What is transferred intent? "def liable under transf intent if intends harm actually caused but to diff victim / object. Applies homic, battery, & arson"
Who is burden on w/respect affirmative defenses? "Def (insanity, self-defense)"
What about international mail? International mail may opened when postal authorities have Reas cause believe mail contains contraband.
What is rape? Unlawful carnal knowledge of woman by man not her husband w/out her effective consent. slightest penetration is sufficient.
Accessory after the fact One who impedes the apprehension, trial, or punishment of a felon.
Alibi A claim that the defendant was not in a position to commit the crime charged.
Plain View Doctrine 1) The police must be lawfully positioned and
2) it must be immediately apparent that the evidence is incriminating
Duty by Contract the tenant signs a lease with the landlord
Does right to counsel apply? "Every critical stage of a criminal proceeding."
NOT:
- grand jury
- investigation proceedings
- prison hearings
- summary court martial
guilty plea does record show that D is aware of:
- charge and all elements
- penalty
- plea was VOLUNTARY
- waived constitutional rights
- nature and consequences of plea

Involuntary plea: withdraw any time
Voluntary plea: withdraw before sentence
For each crime: analysis checklist - mens rea (specific/general intent)
- actus reus
- general considerations
- defenses
insanity defense: irresistible impulse mental disease makes D incapable of controlling his conduct
What is Terry stop? "If police have Reas suspicion of crim activity / involvement in completed crime, supported by articulable facts, they may detain P for investig purposes. If police have Reas suspicion suspect is armed & dangerous, they may detain him & frisk him for weapons."
What is perjury? 1) Taking oath 2) Lying about material matter P.S. Subornation of perjury is procuring / inducing perjury
What is false imprisonment? 1) Unlawful confinement 2) w/out valid consent
What is right effective counsel? "1) All lawyers are presumed effective. 2) Deficient perform must shown by Def 3) But for defective perform, result of proceeding would have been different. 4) deficiencies must specific, is, inexperience, complexity of defenses, lack of time prepare, accessibility of witnesses counsel, gravity of charges is not enough"
Mistake of law A lack of knowledge of a particular law, which may be a defense if it negates the mens rea required for the crime.
Willful state of mind Actual knowledge of the threat to another's safety, or of other prohibited consequences.
Preponderance of the evidence The standard of proof often required to establish an affirmative defense; asks the jury to determine whether an accused has established the reasonable likelihood of the defense.
Right of Counsel Statement violation Absent an effective waiver, the deliberate eliciting of any incriminating statements made by a D without the assistance of an attorney violates the 6 Amendment right to counsel, once Formal Charges have been filed.
Pretrial Identification and right to counsel The defendant has the right to face his accuser at trial and to have a counsel at pretrial proceedings.
Stipulation at preliminary hearing: how long is it good for? Only for the preliminary hearing! Not for the actual trial!
What must you do to successfully withdraw from a conspiracy? You must notify the co-conspirators!
When do you have right counsel? 1) Custodial police interrog 2) Post-indictment interrog 3) Preliminary hearings (PC prosecute) 4) Arraignment 5) Post-charge lineups 6) Guilty plea & sentencing 7) Felony trials 8) misdem trials when imprison is actually imposed / suspended jail sentence is imposed 9) Overnight recesses during trial 10) Appeals matter of right 11) Appeals of guilty pleas
Fill in blank: magistrate must _______________________ Neutral & detatched (NOT attorney general)
What are the rules for entrapment? "Entrapment is defense if 1) criminal design originated w/ law enforcement officers, & 2) DEF not predisposed to commit crime prior to contact by government"
What is mistake of fact? "Mistake of fact is defense to extent it shows DEF lacked state of mind required for crime. If mistake is offered to disprove specific intent crime, mistake need not be reas. If it is offered to disprove any other state of mind, it must have been reas mistake / ignorance."
Do you have right confront witnesses? "1) Yes, but face face confrontation is not reqd when preventing such confrontation serves important public purpose (protecting child witnesses from trauma). Also, judge may remove disruptive Def & Def may leave volunt during trial."
What is mistake / ignorance of law? "Generally, no defense DEF believed acting legally, even if belief reas & based on advice of attorney. However, reliance on attorney can negate mental state element."
When you stop a car do you automatically have probable cause to search the back seat? NO; it's not probable cause!
What are the merger rules? 1) person may not be convicted of attempt + crime / solicitation + crime
What is public & presses rights open preliminary proceeding? These hearings are presumpt open public & press alif pretrial suppression hearings may closed public under limited circum (e.g. party seeking closure has overriding interest likely prejudiced by disclosure & there is no Reas alt besides closure).
What if aggregate imprison exceeds max period fixed by stat & results directly from involun nonpayment of fine / Ct costs? There is impermissable discrim & violation of Equal Proetction clause.
Directed verdict of acquittal A device used to remove the case from the jury's consideration. The trial judge may enter an acquittal whenever a rational jury must conclude that the prosecution failed to prove guilt beyond a reasonable doubt.
Is larceny a lesser included of robbery? YES. Can't be convicted of both larceny and robbery.
For receipt of stolen property when must you have the requisite intent? You must have actual intent to knowingly deprive at the time you receive the stolen goods!
What must death penalty stat look like? "judge / jury must have Reas discret, full information concerning Defs, & guidance in making decision. stat cannot vague & must allow sentencer consider all mitigating EV."
What EV can be used despite being fruit of the poisonous tree? "EV obtained from illegal confess (miranda) is admiss, though cofession itself is not admiss."
Possession with intent to distribute (sell) A purposeful plan to sell or provide illegal drugs to others.
Common law larceny: does it apply to fixtures? Nope!

Larceny applies to the theft of goods and chattels, but not fixtures!
Who bears the burden w/ the insanity defense? "Def must raise issue, split as to who has b of p"
When is death penalty not allowed? 1) Rape of adult woman 2) Felony M where Def wasn't major participant & he didn't act w/reckl indifference value of human life 3) Insane Ps @time of execution 4) People are mentally retarded 5) Minors (committed crime while under 18).
4 Forms of Mens Rea for Murder 1) Intent to Kill - specific intent
2) Intent to cause serious bodily harm
3) Depraved Heart
4) Felony Murder - BARRK


BARRK - Burglary Arson Rape Robbery Kidnapping
When can DEF refuse psychiatric evaluation? If he has not pled insanity - he must take exam if he has pled insanity.
Is it murder if you fire into an empty building? Probably not if the jury buys it.
What are the substantive limitations on federal and state legislatures? 1) No ex post facto laws 2) No Bill of Attainder
Article I Legislative(congress)makes the laws
(Statement)Voluntary Intoxication Can reduce 1st degree murder to 2nd degree murder, but does NOT mitigate murder to voluntary manslaughter N/A
Article III Interprets the laws(supreme court)Judicial
inchoate offenses - solicitation
- conspiracy
- attempt
"Can the DEF plead ""not guilty"" at the arraignment and then later raise insanity?" Yes.
(Statement)Exclusionary rule does not apply to in-court identification or grand juries N/A
Aggravated Assault and battery Assault that an offender commits while in commission of another crime against a child, prison employee, law enforcement or someone with an mental illness.
attempt MENS REA: specific intent
ACTUS REUS: an act in the direction of perpetrating an intended crime

GENERAL CONSIDERATIONS:

- merger: merges into consummated target offense

+ withdrawal:
MAJORITY: doesn't excuse liability
MINORITY: absolves if you permenantly and successfully abandon

- impossibility: legal impossibility is an excuse; factual impossibility isn't

- mistake of fact: not a defense!
Can judge consider belief Def committed perjury while testifying in sentencing? Yes.
Vagueness doctrine Holds any statute unconstitutional when citizens "must necessarily guess at its meaning and differ as to its application"
Larceny 1) trespassory taking
2) and carrying away
3) of the tangible personal property
4) of another
5) with the intent to permanently deprive the owner thereof
Schools/Prisoners Schools are limited to freedom of speech.
Prisonsers have less freedom than the general public.
they both are subject to th 4th amendment.
Vicarious liability employer can be held criminally responsible for the act of their employees.
Inadequate counsel - fell measurably below the performance ordinarily expected of fallible lawyers
- affected outcome of trial
false imprisonment MENS REA: actual intent
ACTUS REUS: use of force to confine another person
battery MENS REA: either intent or criminal negligence
ACTUS REUS: application of unlawful force to the person of another
Is Def's conflict of interest w/his attorney ground for relief? No.
Define PC? Trustworthy facts / knowledge suffic for Reas P believe suspect has committed / is committing crime.
Breaking Setting aside some portion of the structure that would prevent intrusion.
Affirmative defense The defendant admits committing the acts charged, but seeks to justify or excuse the defendant's conduct by establishing additional facts.
Defenses for criminal capacity (mental) 1) Insanity
2) Intoxication
Jury instructions Definitions and rules of the law that control the case that are given by the judge to the jury before deliberations.
illegal detention - was D detained?
- officer had objective basis for believing person was engaged or about to be engaged in criminal activity
- stop was temporary & no longer than necessary
- Terry frisk: reasonable belief for officer safety?
To have a conspiracy must more than one person have the requisite intent? YES.
MISTAKE OF LAW: not a defense unless:
- government hasn't published
- knowledge of law is a material element of offense
insanity defense: drunkenness Voluntary intoxication only a defense to specific intent crimes!
criminal procedure: issues - 4th Amendment: illegal detention, arrest, search or seizure?
- 5th Amendment: voluntariness, Escobedo or Miranda violation?
- 6th Amendment: right to effective counsel at all critical stages of proceedings?

- 8th Amendment & misc.:
- right to pretrial release
- probable cause hearing
- speedy trial
- discovery
- indictment
- public trial
- jury trial
- more
What is compounding crime? Agreeing for valuable consideration not to prosecute another for felony / conceal comission of felony / wherabouts of felon. Modern: any crime.
What is theft? Modern statutes define & combine some / all prop crimes as theft.
Can grand jury subpoena quashed on 4th am grounds for lack of PC? No.
What is mayhem? Mayhem is disablement / dismemberment of bodily part. recent trend is to abolish mayhem & treat it as form of aggravated battery.
What is Bigamy? CL strict liability offense of marrying someone while having another living spouse.
Necessity Excuses a violation of criminal law if (1) the defendant reasonably believes the threat of harm is imminent; (2) the only way to prevent the threatenedd harm is to violate the law; and (3) the harm that will be caused by violating the law is less serious than the harm the defendant seeks to avoid.
Case in chief defense Challenges the prosecution's version of the facts, but does not introduce an independent legal claim into the case.
Instrumentality Use of an inanimate object, an animal, or an innocent human being to commit a crime.
Ultimate issue The question of whether the defendant is guilty or not guilty of the charge.
Mens Rea: Recklessly Aware of the risk, but ignores it.
Crime mala prohibita Crimes that are criminal only because the law defined them as such.
valid arrest requires: - warrant (or good excuse)
- probable cause
insanity defense: duress - murder Duress mitigates murder to manslaughter
What is extortion? CL: corrupt collect unlawful fee by officer under Color of Office. Modern: Obtaining prop by means of threats harm / to expose info. Some JD make crime complete if threat made w/ intent obtain prop
What is bribery? CL: Corrupt payment / receipt to officials for official action Modern: Includes nonofficals & either person is busted
Innocent human agent One who commits the physical acts constituting a crime, but who is innocent of the crime because of a legitimate defense.
Corpus Delecti Body of the crime--the fact of its having been committed
Habitual offender A person who has been adjudged guilty of drunk driving on a specified number of occasions. (more than one)
"Consent" Search Consent extends to all areas where a person with an apparent equal right to use or occupy the property would have joint access or control.
Crimes that are mala in se Murder, rape, arson, and theft.
5th Amendment: lineup - if you've been formally charged, you have right to counsel at lineup (but not photo lineup)
- due process: ID can't be impermissibly suggestive

Independent identification can cure it
search incident to arrest - lawful arrest
- SCOPE: limited to persons & areas within D's immediate reach
insanity defense: diminished responsibility Mental illness short of insanity may be asserted in homicide case/specific intent crimes to mitigate culpability/reduce charge
Common law arson: WHERE? Only in the dwelling house of another!
What is misprison of felony? "Failure to disclose knowledge of felony - modern, not crime w/out some affirmative act in aid of crime."
What is result of pretrial publicity? Excess pretrial publicity is prejudicial Def may req change of venue / retrial.
What is the ALI rule? "Def acquittal if had mental disease & as result, lacked subst capacity to: a) Appreci criminality of conduct, / b) Conform conduct to law"
What is diminished capacity? "Some JD allow defense when Def is short of insanity but didn't have mental state req for crime charged. Usually SI, some JD GI."""
Involuntary intoxication May be a defense if the defendant did not know of the ingested substance's intoxicating effect or if someone forced or tricked the defendant into ingesting the intoxicating substance.
Fruit of the Poisonous Tree Doctrine Any additional evidence (including verbal statements and physical objects) acquired either directly or indirectly from the illegal arrest, search, or seizure must also be excluded from a criminal proceeding.
Duty by statute Stay at the scene of the accident, and render aid to the victim
Co-felon shoots & kills co-felon. Felony murder? NO - it's a separate crime!
What is rule for 8th am? A penalty is grossly disproport seriousness of offense is cruel & unusual.
What are defenses to solicitation? Solicitor not guilty of target crime b/c of legis intent exempt her (ie woman can't solicit to transport across state lines for immoral purps
What about cumulative punishments for offenses constituting same crime? "Even if two crimes constitute same offense under this test, if there was legislative intent have cumulative punishments, then multiple punishments are permissible (i.e. sentenced for robbery & using weapon during commission of crime)."
What is minimum number of jurors? 6. six P jury must unanimous.
What is voluntary manslaughter? "VM = murder BUT FOR existence of adeq provocat = 1) Provocat arouse sudden & intense passion in mind of ordinary P, causing loss self-control (e.g. threat deadly F / spouse in bed w/ another) 2) DEF in fact PROVOKED 3) There not suffic time btw provocat & killing reas person to cool, & 4) DEF in fact didn't cool off"
Role of the trial Judge The judge can't take sides, nor have an preconceived conclusions of the guilt/innocence of the defendant.
right to speedy trial: test - reason for delay
- whether D caused delay
- length of delay
- whether delay was prejudicial
Does judge have keep plea bargain? A judge does not have accept plea.
"What is the ""good faith"" exclusion to the exclusionary rule?" "When police act in good faith on 1) case law, 2) facially valid statute, / ordinance, / 3) computer report containing clerical errors not made by police"
Can prosecut appeal acquittal on merits? "No, but can appeal any dismissal besides that. Cannot appeal death penalty. Also, appeals are not barred if successful appeal would not req retrial. Can appeal sentence pursuant stat authorizing such review."
What are some appeal rules? "1) There is no federal C right appeal 2) Indigents must given counsel @state expense during first appeal granted all matter of right & for appeals of guilty pleas (and nolo contendre). 3) second, discret appeal need not paid for. 4) If Supreme Ct announces new rule of crim procedure, (one not dictated by precedent) in case on direct review, rule must applied all other cases on direct review."
What is the irresistible impulse test? "Def acquittal only if, b/c of mental illness, unable control acts / conform conduct to law"
"What if, after retrial, harsher sentence is imposed?" "Judge must say on record reass for harsher sentence, unless was jury sentencing & jury didn't know about first trial."
Is joint representation conflict of interest? "Not per se invalid, but if counsel notifies of conflict before / @trial, & judge refuses appoint separate counsel, Def is entitled automatic reversal."
4 Bases to Attack Admissibility of a Statement/Confession 1) Voluntariness approach
2) Miranda approach
3) Right to Counsel
4) Fruits of the Poisonous Tree Doctrine
Must belief be reasonable to negate specific intent? NO - unreasonable belief can negate specific intent!
Is a search warrant required to search a probationer's home? NO. This is a federal rule!
When is counsel necess for parole & probation revocation? "If new sentence can imposed ,or if representation is necess fair hearing"
What does the 4th Amendment do? 4th Am provides P free from unreas searches & seizures
What is foreign country exception W reqmt? "4th am does not apply searches & seizures by United States officials in foreign countries & involving alien, @least where alien does not have subst connection United States. Ex. Wless search of alien's home in Mexico by FBI agents"
Aider and Abettor (principal in the second degree) Person who assists the perpetrator in the commission of the crimme while being actually or constructively present at the scene of the crime.
Your accomplice cannot be found guilty because of a legislative exemption (statute meant to protect them). Can you still be guilty of conspiracy? No - not if your co-conspirator can't be guilty!
Do informant's tips count PC on W affadavit? "Use of informant's tip must meet totality of circum test, is, affadavit may suffic even if reliability & credibility of informer / basis for knowledge are not estab. Note identity need not generally revealed."
What are the exceptions to the fruit of the poisonous tree rule? 1) EV obtained from source independent of original illegality 2) intervening act of free will by DEF 3) Inevitable discovery (would have been found anyway) 4) Violations of knock & announce rule 5) In court identification cannot be excluded based on illegal detention
What are some other random rules on DJ? 1) Conduct was used sentence enhancer can basis for trial w/out violt double jeopardy. 2) DJ is not violtd if gov brings crim suit against Def for conduct for he has been found liable in civ Ct unless is clear from statutory scheme of civ Ct purpose is impose crim penalty.
If you're trying to kill someone and then they die of something else, is it still murder? NO. It's only murder if you actually caused their death.
What are the elements of conspiracy? "1) Agrmt btw 2 / + Ps 2) Intent enter into agrmt 3) Intent by to achieve object of agrmt. Maj JD req overt act, though act of mere preparation=suffic"
Evidence exception from Fruit of the Poisonous Tree Doctrine Taint may be purged from the Fruit of the Poisonous Tree Doctrine by:

1) independent evidence
2) inevitable discovery
3) an intervening act of free will by D
What force may be used to effectuate arrest by cop? Nondead F may used by police offs if reas appears neccess to effectuate arrest. Deadly F reas only neccess prevent felon's escape & felon threatens serious bodily harm
Study this Flashcard on your Mobile Device Look at our list of Apps