Professional Documents
Culture Documents
C L & C P: B E C: Riminal AW Riminal Rocedure AR XAM Hecklist
C L & C P: B E C: Riminal AW Riminal Rocedure AR XAM Hecklist
c)
d)
e)
f)
g)
h)
i)
j)
k)
Attempt
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
b) Irresistible Impulse Test
i) lacked capacity for self control and
ii) lacked capacity of free choice
c) Durham Rule
i) Conduct was the product of mental illness
d) Model Penal Code
i) lacked ability to conform conduct to the requirements of law
e) Insanity is a defense to ALL crimes
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
b) Majority Rule for Deadly Force
i) Reasonable belief
ii) Deadly force is about to be used on them
c) 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
i) Must withdraw from using force AND
ii) Communicate your withdraw
iii) VERY RAREdont let original aggressors have a self-defense theory
20) Defense of Dwelling
a) Deadly force can NEVER be used solely to defend property
b) E.g., spring-board gun when no one is in the house to prevent burglaries
21) Duress & Necessity
a) DuressIll kill you if you dont rob that store
b) Necessitycriminal conduct as a result of pressure from natural forces to avoid harm to
society
c) Both are defense to all crimes except homicide
22) Mistake of Fact Chart
Mental State of Crime
Specific Intent
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
Definition
i) Prohibits the introduction of evidence obtained in violation of a criminals 4 th, 5th, and 6th
Amend. rights
ii) At a criminal trial
B)
C)
D)
E)
F)
G)
3) Fourth Amendment
A)
B)
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.
(5) Account records held by bank.
(2) Ones handwriting.
(6) Garbage.
(3) Paint on the outside of a car.
(7) Automobiles movement on
(4) Smell of ones luggage and
public roads and arrival at a
other odors (i.e., drug dogs).
private residence, even if
detection of movement
requires a tracking bug.
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.
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)
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
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E)
B)
C)
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)
B)
C)
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
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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
(c) Right to plead not guilty and demand a trial
(d) Guilty plea is a waiver of trial
(2) If not, is entitled to withdraw plea and plea all over again
iii) Withdrawn Guilty Plea after Sentencing
(1) Plea was involuntary (i.e., mistake)
(2) Lack of jurisdiction
(3) Ineffective assistance of counsel
(4) Failure of prosecution to keep an agreed upon plea bargain
12) Death Penalty
A) Any death penalaty statute that does not give chance to present mitigating facts and
circumstances is unconstitutional
B) There can be no automatic category for imposition of the death penalty
C) The state may not, by statute, limit mitigating factors; all relevant mitigating evidence
must be admissible or the statute is unconstitutional
13) Double Jeopardy
A)
Attaches
i) Jury trial: when jury is sworn
ii) Judge trial: when first witness is sworn
iii) Does not attach when proceedings are civil
B)
C)
Same Offense
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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
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
ii) E.g., lie detector; custodial interrogation
iii) DOES NOT protect you from submitting hair, urine, blood, or handwriting samples
C)
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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