What is barred by the 4th amendment?

The 4th amendment bars unreasonable search an seizure.

When is a search and seizure reasonable and valid under the 4th amendment?

For a search a search and seizure to bad reasonable and valid, it must either

(1) Be conducted pursuant to a valid warrant

OR

(2) An exception applies

What are the requirements for excluding evidence that was obtained in violation of the 4th amendment?

The defendant must have standing

When does a defendant have standing with respect to a 4th amendment search and seizure violation?

When the search and seizure violated a reasonable expectation of privacy.

Where does one generally have a reasonable expectation of privacy?

(1) in their home

(2) in a place they are an overnight guest

Does a defendant have a reasonable expectation of privacy in a backpack containing an illegal handgun when they gave the backpack to a friend to hold?

No. Giving an item to a 3rd party destroys a reasonable expectation of privacy.

Under what circumstance is it proper to file for a motion of acquittal?

When the defense believes that the prosecution has not provided sufficient evidence to send the case to the jury.

What are the 3 general elements of criminal attempt?

(1) intent to commit the crime (or that the crime be committed)

(2) a substantial step (MPC) or traditional (CL) proximity test.

(3) actions fall short of the completed crime

When is abandonment a valid defense?

When . . .

(1) the abandonment is complete and unequivocal

(2) abandonment must be voluntary

(3) abandonment may NOT be the result of difficulty or impossibility in completing the crime.

What are the factors considered in a speedy trial analysis?

LRAP

Length of delay

Reason for delay

Asserted rights by the defendant

Prejudice on against the defendant

What are the elements of common law burglary?

(1) Entering

(2) a building / residence

(3) at night

(4) with intent to commit a felony there in

What are the elements of Larceny?

(1) A trespassory taking

(2) and carrying away

(3) of the property of another

(4) with intent to permanently deprive

Elements of Robbery?

"Larceny by force"

(1) taking the property of another

(2) from the individual's person or presence

(3) using violence, intimidation, or threats

(4) with the intent to permanently deprive

What is an accomplice?

Someone who

(1) has the intent to assist the principal

(2) has the intent that the principal actually commit the crime

(3) "aids, counsels, or encourages" the principal in preparation of the crime or during the crime.

When is a school search acceptable without a warrant or probable cause?

When it is reasonable.

When is a school search reasonable?

(1) means of the search are reasonable related to the objective

(2) there is a reasonable chance that evidence will be founde

(3) the search is NOT "excessively intrusive".

What factors are considered when determining "excessively intrusive"?

(1) Nature of the evidence / crime

(2) age of the student

(3) gender of the student

What are the 5 inherently dangerous felonies?

Burglary

Arson

Rape

Robbery

Kidnapping

When may a person lawfully use deadly force to protect themselves?

When . . .

(1) The person defending did not cause the problem (they are not at fault for the situation)

(2) The danger they are defending is unlawful

(3) The defender is confronted with a threat that they reasonably believe will cause imminent death or great bodily harm.

In most states, what is involuntary manslaughter?

Causing the death of a human via criminal negligence?

What is criminal negligence?

(1) the accused fails to be aware of a substantial and unjustifiable risk to human life

(2) the failure is a substantial deviation from what the reasonable person would do in like circumstances.

In states that use the recklessness standard for involuntary manslaughter, what does recklessness mean?

A conscious disregard for a substantial and unjustifiable risk to human life.

In what types of relationships does a duty to act arise? I.e., when can an omission amount to criminal liability?

(1) Duty to protect: babysitter / child, parent / child, spouses

(2) Contract actual (a nursing home employee or lifeguard)

(3) voluntary assumption of the duty to act

(4) a statute requires the someone act (good Samaritan statute)

What are the main specific intent crimes? Name 11.

Forgery Solicitation Burglary Conspiracy Robbery 1st Degree Murder False Pretenses Assault Embezzlement Larceny

What are the 4 types of mens rea under the MPC?

(1) Purposefully: conscious intent to engage in the specific act

(2) Knowingly: recognition that an action or conduct could or will bring about a particular result

(3) Recklessly: a conscious disregard to a substantial and unjustifiable risk

(4) Negligently: failing to know that a substantial and unjustifiable risk exists

What is an accomplice?

A person who assists, aids, counsels, encourages a principal in the commission of a crime.

What is an accessory after the fact?

A person who assists, aids, counsels, encourages a principal after the crime (a felony) has been committed.

What are the requirements for an accomplice to withdraw from the crime?

(1) withdrawal is complete and occurs before the crime can't be stopped

(2) assist in neutralizing the crime (if possible)

What are the elements of traditional bilateral conspiracy?

(1) an agreement among two or more people to commit a crime (both must have "guilty minds")

(2) both intend to agree

(3) Both intend that the crime actually be committed

What are the elements of modern unilateral conspiracy?

(1) an agreement among two or more people to commit a crime (only 1 "guilty mind" needed)

(2) both intend to agree

(3) Both intend that the crime actually be committed

What are the elements of solicitation?

(1) Advising, asking, requesting, and other synonyms, another person to commit a crime

(2) intent that the crime actually be committed.

What are the elements of attempt?

(1) the specific intent of the crime is present

(2) an act in furtherance of that crime.

What is common law murder?

The unlawful killing of a human with malice aforethought.

What are the 4 ways in which malice aforethought can be found?

(1) Intent to kill

(2) Intent to inflict great bodily harm

(3) Depraved heart murder (or MPC reckless indifference to an unjustifiably high risk to human life)

(4) intent to commit a felony during which the killing occurs (felony murder)

What is felony murder?

A killing that occurs during a crime or during the attempt of a crime.

What are the common law dangerous felonies?

(1) Burglary (2) Arson (3) Rape (4) Robbery (5) Kidnapping

What is the agency theory of felony murder?

Any killing that occurs as a result of the crime or attempted crime can be attributed to the person or people committing the dangerous felony as long as their actions actually caused the death.

Co-criminals can be guilty for causing a death even if it was cause by their co-felon.

What is the proximate cause theory of felony murder?

Any killing (accidental or intentional) caused by the person or people committing the dangerous felony, even a killing by a 3rd party, can be attributed to the defendants if their actions set into motion the occurrences that resulted in the killing.

Defendants are guilty of the killing of people even if killed by a 3rd party (but not caused by the defendants)

What is voluntary manslaughter

A killing that can be argued down to a lesser offense because of adequate provocation. Elements:

(1) adequate provocation (classic case is adultery)

(2) the defendant was actually provoked

(3) there was no cooling down period (to reflect on the actions)

(4) the killer did not actually cool off

What is the difference between involuntary manslaughter and depraved heart murder?

Depraved heart murder = reckless disregard for high risk that a killing would be caused by the action.

Involuntary manslaughter = reckless disregard of a substantial risk.

So the difference is the degree of risk. Depraved heat is a higher and more ascertainable risk.

What is battery?

An unlawful or offensive touching contact.

Intentional or not, does not matter.

What is aggravated battery?

Battery . . .

(1) with a deadly weapon

(2) that causes serious harm

(3) of a police officer, child, incapacitated person, or a woman.

What is false imprisonment?

(1) An unlawful confinement (even very briefly)

(2) of a person who knows they are confined

(3) and a reasonable person would feel that they are not free or able to leave.

Can be a physical confinement (locked in a room) or by coercion or threats.

What is assault?

A failed attempt of a batter that causes a reasonable apprehension of imminent bodily harm in the victim.

What is aggravated assault?

Assault with intent to cause great (1) intent to inflict great bodily harm, (2) intent to murder, (3) carried out with a deadly weapon, (4) intent to rape.

What are the elements of kidnapping?

The unlawful confinement and movement or concealment of another person.

What is robbery?

Larceny by force.

The taking of the property of another from their presence by using force or threats with intent to permanently deprive.

What is larceny?

The trespassory taking and carrying away of the property of another without consent and with intent to permanently deprive the victim of that property.

What is embezzlement?

The fraudulent conversion of personal property of another when that property was entrusted to or otherwise in the lawful possession of the defendant.

What is the crime of false pretenses?

Using false statements of facts to obtain title to the property of another with intent to defraud.

What is receipt of stolen property?

Receiving (possession / control) of stolen property where the receiving party knows that the property was stolen.

What is the crime of forgery?

Fraudulently altering or authoring a writing of legal significance.

What is burglary?

The breaking and entering of a dwelling of another at night with the intent to commit a felony therein.

What is arson?

The malicious burning of the dwelling of another.

What is the Durham insanity test?

But for the mental defect, the defendant would not have committed the crime.

What is the primary test for the insanity defense?

M'Naghten Rule: Because of a mental defect, the defendant could not know that their actions were wrong (at the time they committed the acts) or comprehend the nature and quality of their actions.

What is the irresistible impulse insanity test?

Defendant could not resist their actions.

What is the MPC insanity test?

Defendant could not know their actions were wrong AND could not resist.

What does the 4th amendment prohibit?

Unreasonable search an seizures.

What happens if the 4th amendment is violated?

The evidence is excluded (exclusionary rule).

What are the fundamental rights under the 5th amendment?

(1) Cannot be tried twice for the same crime (double jeopardy)

(2) The state my not compel someone to give self incriminating testimony

What are the 6th amendment rights?

(1) right to counsel when charged with felonies OR misdemeanors that could result in jail time

(2) right of confrontation

(3) right to a jury trial

(4) speedy trial

(5) public trial

What are the 8th amendment rights?

Prohibits cruel and unusual punishment, punishment that is excessive in relation to the crime.

SCOTUS: Cannot impose a life sentence without the possibility of parole on a minor (less than 18 when the crime was committed)

What is the automobile exception?

If an officer has probable cause . . .

that leads to a stop . . .

They can search the whole car and containers therein (including trunk) . . .

without a warrant . . .

as long as the container may reasonably contain the contraband.

In search incident a lawful arrest of a driver of a car . . .

Police can search the interior of the car only (not the trunk)

What is the lesser included offense rule?

Blockburger: Two crimes are not the same offense if each requires proof of elements not required by the other.

When are prior identifications admissible in a criminal trial?

Prior identifications (line-ups, phot identification, etc.) are admissible if:

(1) the declarant is available

AND

(2) subject to cross exam.

When does a statement (that falls within a hearsay exception) still a violate of the right of confrontation?

In a criminal case . . .

(1) the statement is testimonial

(2) the declarant is NOT available

AND

(3) there was no chance to cross-examine the declarant.

What is implied when a jury only convicts a defendant of a lesser included crime?

It is implied that the greater charge is acquitted.

What is common law second degree murder?

The intentional killing of a person without deliberation or premeditation.

Does the 5th amendment right against self incrimination apply to corporations or business records of a corporation?

No.

Is there a right to a jury trial in criminal cases?

Under the 6th amendment, a jury trial is guaranteed for all criminal prosecutions.

What are the elements of a prima facie case of fraud?

(1) the defendant misrepresented a material fact

(2) the defendant was aware that the misrepresentation was false

(3) intent to induce reliance

(4) the reliance was reasonable given the circumstances

(5) damages.

How does the 6th amendment guarantee counsel?

(1) the 6th amendment applies to states vie the 14th amendment

(2) it guarantees in all criminal prosecutions that the defendant has the right to counsel at all critical stages of the prosecution.

How is the 6th amendment offense specific?

When charges are filed for one crime, questions about an unrelated crime without counsel is permitted. Questioning without counsel of an unrelated crime does not violate the 6th.

From what amendment does Miranda come from?

The 5th as applied to the states through the 14th.

When must Miranda be given? What happens if it isn't?

Miranda must be given to anyone in police custody before custodial questioning. Otherwise the evidence may be excluded.

What are the elements of a successful duress defense?

(1) only because of threat of great bodily harm or death (to the person or close family member)

(2) the person commits a criminal act (other than murder which cannot be excused by duress)

(3) the person REASONABLY believes that the threatened death or great bodily harm will be carried out against them or a close family member.

. . . Then the crime may MAY be excused

What are the two types of involuntary manslaughter?

(1) Criminal Negligence Manslaughter: death occurs as the result of criminal negligence ( a SUBSTANTIAL deviation from the standard care of a reasonable person. This deviation is greater than standard negligence.

(2) Unlawful Act Manslaughter: death results from the commission of an unlawful act.

Automobile Exception Summary . . .

1) Must have PROBABLE CAUSE to believe car contains: fruits/instrumentalities/evidence of a crime

2) May search the WHOLE car

3) that might reasonably contain the item

Exception: Parked on curtilage

Passenger’s packages can also be searched.

If probable cause is only for a specific container, police can only search that specific container.

Is consent to a residential search valid if the person giving consent didn't actually live there?

Yes, if the person reasonably appears to have the authority to give consent. Further, the search may note exceed the scope of consent given.

What is required for a search to be valid?

A warrant or an exception.

What is the big exception to the death penalty in felony murder cases?

SCOTUS: the death penalty may not be imposed on an accomplice that did not kill or intend to kill.

Must the death penalty be imposed by the same jury that convicted the defendant?

No. It may be imposed by the judge or a jury.

When is deadly force justified?

When the person claiming the defense is . . .

1) without fault

2) confronted with an unlawful act

3) has reasonable belief they will suffer imminent death or great bodily harm as a result of the unlawful act.

What is the M'Naughten test?

Defendant did not know right from wrong and does not understand the quality and nature of their actions.

When does the misdemeanor manslaughter rule apply?

A killing that occurs during a misdemeanor is involuntary manslaughter.

(abolished in MPC jurisdictions)

Comparing the MPC and common law, what is the difference in the elements of attempt?

MPC: Substantial step test

Common Law: Overt act test

What are the instances in which the defendant may NOT plead the 5th amandment right against self incrimination?

(1) they already took the stand

(2) They were granted immunity

(3) they are not the defendant in the criminal case

Under the 6th Amendment, what proceedings must the defendant be present for?

Every critical stage after formal proceedings begin.

Included jury impaneling.

What is the big / significant exception to the prohibition against double jeopardy?

Separate sovereigns (states) may prosecute separately for the same conduct. Heath v. Alabama, 474 U.S. 82 (1986).