crim law flash cards

5/22/2018 Crim Law Flash Cards

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Where can a crime be prosecuted? A crime may be prosecuted in any state whereact that was part of the crime took place or the result took place.What is the burden of proof in a criminal case? "In a criminal case, the prosecution must prove each element of the crime beyond a reasonable doubt.""In NY, what are the two types of defenses for criminal cases?" "1) Defenses: Prosecution must disprove beyond a reasonable doubt2) Affirmative Defenses: D bears burden of proof by preponderance of the evidence"What are the two kinds of classifications of crimes? "1) Felony: A crime that may be punished by more than one year in prison2) Misdemeanor: A crime for which the maximum punishment may not exceed one year in prison."

What are the four essential elements of crime? "1) Act Requirement2) Mental State3) Causation (actual and proximate)4) Concurrence"What are culpable acts under the act requirement? Culpable acts can be either commissions (physical acts) or omissions (the failure to act).What are considered commissions or physical acts under the act requirement?"All bodily movements are physical acts that can be basis for criminal liability, provided they are voluntary.""What are three examples of involuntary movements that are not considered criminal acts"" under the act requirement?""" "1) One that is not the product of the actor's volition (e.g., being pushed)2) Sleepwalking or otherwise unconscious conduct (do not conflate falling asleep

with sleepwalking! Note, this is not usually a big winner!)3) A reflex or convulsion (e.g. conduct during an epileptic seizure)"What the three requirements needed for an omission or a failure to act to be thebasis for criminal liability? "1) First and foremost, you need a legal duty2) Second, you need knowledge of the facts giving rise to the duty, AND3) Third, you need ability to help""Under the three requirements needed for an omission or a failure to act to be the basis for criminal liability, what are the five ways in which a legal duty can be created?" "1) By statute (e.g., filing tax returns, professionals reporting child abuse)2) By contract (e.g. babysitter, doctor, lifeguard)3) By status relationship (e.g. Parent/Child or Spouse/Spouse)4) By voluntary assumption of care, particularly by assuming responsibility, D s

tops others from coming to aid of imperil party5) By creation of the peril (D caused the problem initially, D has a duty to help)"What are the four common law mental states? "1) Mental State #1: Specific Intent (When the crime requires not just the desire to do the act, but also the desire to achieve a specific result)2) Mental State # 2: Malice (When a D acts intentionally, or with reckless disregard of an obvious or known risk)3) Mental State #3: General Intent (the D need only be generally aware of the factors constituting the crime; he need not intend a specific result. Note, thejury can usually infer the general intent simply from the doing of the act)4) Mental State #4: Strict Liability (When the crime requires simply doing theact; no mental state is needed)"

"What are the eleven common law specific intent crimes, divided into three categories?" "-Crimes against the person1) Assault2) First Degree Premeditated Murder (statutory crime)-Crimes against property3) Larceny4) Embezzlement5) False Pretenses6) Robbery7) Forgery


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8) Burglary-Inchoate crimes9) Solicitation10) Conspiracy11) Attempt"What are the two defenses that are available only for common law specific intentcrimes? "1) Voluntary intoxication; and2) Unreasonable Mistake of Fact"What are the two common law malice crimes? "1) Murder2) Arson"What are four examples of common law general intent crimes? "1) Battery

2) Forcible Rape3) False Imprisonment4) Kidnapping

Note, all crimes against the person."What are the two types of common law strict liability crimes? "1) Public Welfare Offenses: regulatory or morality offenses that typically carry small penalties (e.g. selling alcohol to a minor; selling contaminated food; corrupting the morals of a minor)2) Statutory Rape: having sex with someone who is under the age of consent"Does NY use the common law mental states? "No, NY uses the five mental states defined by the MPC instead."What are the five mental states that NY uses? "1) Intent (MPC: Purpose): When i

t is D's conscious desire to accomplish a particular result (in other words, thatis what D wanted to do)2) Knowledge: When D is aware of what he is doing. With respect to a result, when D is practically certain that his conduct will cause that result3) Recklessness: When D is aware of a substantial and unjustifiable risk, and consciously disregards that risk4) Negligence: When D should have been aware of a substantial and unjustifiablerisk.5) Strict Liability: No mental state required (similar to the common law)"What are the two types of causation needed to satisfy the causation element to prove a crime? Actual (or but for) causation and proximate (or legal) causationWhat is the general rule and exception regarding actual causation in a criminalcase? "Under the general rule, a D is an actual cause (the cause-in-fact) if the

bad result would not have happened but for D's conduct.

The exception to this general rule is an accelerating cause is an actual cause (e.g., X stabs Y, giving Y a fatal wound. Z then shots Y in the head, killing himinstantly. Even though Y was going to die anyway due to X's actions, Z is an accelerating cause and is therefore an actual cause)"What is the general rule regarding proximate causation in a criminal case ?A D is a proximate cause if the bad result is a natural and probable consequenceof D's conductHow will intervening causes impact whether or not a D is considered a proximatecause in a criminal case? D will not be considered a proximate cause if anunforeseeable intervening event causes the bad resultHow will eggshell victims impact whether or not a D is considered a proximate ca

use in a criminal case? D will be considered a proximate cause even if the victim's preexisting weakness contributed to the bad resultWhat is the rule regarding the essential element of concurrence and what two kinds of cases is it most frequently an issue? The rule regarding concurrence states the D must have the required mental state at the same time as he engages in the culpable act. Concurrence issues most frequently arise with Larceny and Burglary.What are the two common law crimes against the person? "1) BATTERY: The unlawful application of force to another resulting in either bodily injury or an offensive touching. General Intent is the required mental state


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2) ASSAULT: Assault can be either 1) an attempted battery (a swing and a miss)or 2) the intentional creation other than by mere words of a reasonable fear inthe mind of the victim of imminent bodily harm (a fake punch).The mental state required is Specific Intent."What is the definition of assault in NY? Intentionally (mental state) causing physical injury to another person"In NY, what are three typical factors that make a crime more or less serious inregards to degrees of crime?" "1.) Weapons (add a gun, add a degree)2) Injury, which comes in two levels of seriousness: A) Physical injury (substantial pain) and B) Serious physical injury (permanent or life-threatening injury)3) Quantity (money, drugs)"

What are the three degrees of assault in NY? "1) First Degree Assault: Second degree assault plus a weapon2) Second Degree Assault: Intentionally causing serious physical injury3) Third Degree Assault: Intentionally causing non-serious physical injury"Is battery a separate crime in NY? "No, battery is not a separate crime inNY. All versions of assault in NY require injury (note, there's no offensive touching version of assault in NY, as there is with common law battery). Thus, attempted assault in NY requires intent to assault; merely creating a reasonable apprehension (without an intent to actually injure) is a different crime called menacing."What is the year-and-a-day rule in the context of homicide and is it followed inNY? "The Common Law rule states that death may occur w/in a year-and-a-day of the homicide act.

However, under the NY/Majority rule, the death may occur at any time.""What is the definition of common law murder, including the required mental state?" "Common law murder is causing death of another person w/ malice aforethought The requirement of malice aforethought is satisfied if D has any of the following four mental states: 1) Intent to Kill; 2) Intent to inflict serious bodily injury; 3) Extreme recklessness, meaning reckless indifference to human life or having an abandoned and malignant heart (depraved heart murder); 4) Through theintentional commission of a dangerous felony (i.e., felony murder)""What are the two special rules for common law intent to kill"" murder?""""1) Deadly Weapon Rule: The intentional use of a deadly weapon creates an inference of an intent to kill2) Transferred Intent: D intends to harm one V, but accidentally harms a differ

ent V instead, D's intent will transfer from the intended V to the actual V (thisrule applies most frequently to murder but can also apply to other crimes, suchas battery and arson.) Note, to the first victim (the original target), D wouldalso be liable for attempt crime. Also note, transferred intent does not applyto attempts, only to crimes with completed harms."How is first degree murder defined in most states? "First Degree Murder isdefined in most states, as any killing committed with premeditation and deliberation OR felony murder if the qualifying felonies are enumerated."What are the three requirements to find first degree murder defined in NY?"1) An intent to kill;2) D is more than 18 years old; AND3) At least one aggravating factor (either A) V is a law enforcement officer, engaged in official duties at the time of the killing; B) D committed murder for h

ire; C) Felony murder, where the V was intentionally killed; D) Killing for purpose of W intimidation; or E) There was more than one V intentionally killed in the same criminal transaction"What are the three kinds of second degree murder in NY? "1) Intentional killingthat does not qualify for first degree (premeditation and deliberation is irrelevant in NY)2) Highly reckless killing demonstrating depraved indifference to human life byengaging in conduct that creates a grave risk of death, generally involving morethan one V (if there's only one V, look for torture)3) Felony murder, when V is killed unintentionally."


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What is the definition of felony murder? Felony Murder is any killing caused during the commission of or attempt to commit a felony (very broad).What are the six limitations on felony murder? "1) D must be guilty of the underlying felony (note, in NY, D need not be convicted of the felony, as long as there is sufficient evidence that he committed it)2) The felony must be inherently dangerous (note, NY limits felony murder to certain felonies: Burglary, Robbery, Arson, Kidnapping, Escape, and Sexual Assault)3) The felony must be separate from the killing itself (therefore, for example,aggravated assault or battery cannot be the underlying crime)4) The killing must take place during the felony or immediate flight from the felony. Once the felon(s) reach a place of temporary safety, the felony ends.

5) The death must be foreseeable6) The victim must not be a co-felon"What is vicarious liability in the context of felony murder? "If one of the co-felons causes the death, all of the other co-felons will be guilty of felony murder. This applies even if the actual killing was committed by a third-person(e.g., a bystander, a police officer), so long as one of the felons is a proximate cause of the death.""What is the non-slayer defense"" in NY?""" "NY provides a limited affirmative defense to felony murder if D can prove each of the following 4 things:1) D did not kill V; 2) D did not have deadly weapon; 3) D had no reason to believe co-felons had deadly weapons; AND 4) D had no reason to believe co-felons would do anything to result in death"What is the common law definition of voluntary manslaughter? An intentional k

illing committed in the heat of passion after adequate provocation.What are the four requirements needed to satisfy adequate provocation in the context of common law voluntary manslaughter? "1) The provocation must be objectively adequate, which mean it would arouse a sudden intense passion in the mind of a reasonable person2) D was actually provoked (D needs to be in a state of passion)3) D did not have time to cool off4) D did not actually cool off between the provocation and the killing (otherwise, would be revenge)"What are three common law examples of objectively adequate provocation at commonlaw in the context of voluntary manslaughter? "1) Serious assault or battery2) Presently witnessed adultery3) Unlawful restraint"

At common law is provocation in the form of words alone considered objectively adequate provocation in the context of voluntary manslaughter? "No; instead, atcommon law, provocation in the form of words alone was considered objectively inadequate provocation as a matter of law. However, many states no longer followthis rule."What is the NY approach to voluntary manslaughter? "In NY, voluntary manslaughter is an intense killing committed under the influence of a reasonable and extreme emotional disturbance (EED).

Note, EED acts as an affirmative defense to second degree murder, which means Dmust prove EED by a preponderance of the evidence"What are the two types of common law involuntary manslaughter? "1) A killing committed with criminal negligence (Note: do not conflate with tort negligence; cr

iminal negligence is a higher level, a gross deviation of a reasonable standardof care)2) A killing committed during a crime that doesn't qualify for felony murder (thisis sometimes called misdemeanor manslaughter)"What are the two degrees of manslaughter in NY? "1) First Degree Manslaughter (EED manslaughter or an intent to cause serious physical injury)2) Second degree manslaughter(D is aware of and consciously disregards a substantial and unjustifiable risk of death. The mental State is recklessness)"What is the definition of criminally negligent homicide in NY and what is the re


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quired mental state? D should have been aware of a substantial and unjustifiable risk of death. The mental state required is criminal negligence.What is aggravated homicide and aggravated murder in NY? "-Aggravated Homicide: When V of the homicide is a police officer killed in the line of duty-Aggravated Murder (new provision): When a D over the age of 18 causes the death of a child under 14 in an especially cruel and wanton matter."What are the two common law confinement offenses? "1) Common Law False Imprisonment2) Common Law Kidnapping"What are the two NY confinement offenses? "1) Unlawful Imprisonment2) Kidnapping"

What are the three elements and mental state required for common law false imprisonment? "-Elements: 1) The unlawful; 2) Confinement of a person; 3) Without his consent-Mental State: General Intent"What are the degrees of unlawful imprisonment in NY? "-Second Degree: Unlawfully restraining someone without their consent; AND with knowledge that the restriction is unlawful-First Degree: Second Degree plus a risk of serious physical injury"What are the two elements and mental state required for common law kidnapping?"-Elements: 1) False imprisonment; 2) That involves moving V or concealing V ina secret placei-Mental State: General Intent"What are the degrees of kidnapping in NY? "-Second Degree: Abducting some

one-First Degree: Second degree kidnapping, plus one of the following: 1) for ransom; OR 2) restraint of V for more than 12 hours with intent to rape, injure, or rob the victim; OR 3) death of V."How does the victim being killed during a kidnapping impact the degree of homicide charged in NY? "-If V is killed accidentally, second degree murder-If V is killed intentionally, first degree murder"What are the three elements of forcible rape and what is the required mental state? "-Elements: 1) Sexual intercourse; 2) Without V's consent; 3) Accomplished by force, by threat of force, OR when V is unconscious.-Mental State: General intent"What are the two elements for statutory rape and what is the required mental state under the majority rule and under the minority/MPC rule? "-Elements: 1) S

exual intercourse; 2) With someone under the age of consent-Mental State: the majority rule is strict liability, but the minority.MPC ruleis that a reasonable mistake of age is a defense"What is the age of consent in NY in the context of statutory rape? "In NY,the age of consent is 17, but D would need to be at least 21"What is the definition of common law larceny? "The trespassory (wrongful or unlawful) taking and carrying away (import that the property must be moved) of thepersonal property of another with the intent to permanently retain the property

Note, the tangible personal property of another leads to the key question of whether someone else have lawful custody at the time of the taking: if D has lawfulcustody of the property, he cannot be guilty of larceny for taking it (even if

D doesn't own it), but D can be guilty of larceny for taking his own property, ifsomeone else had lawful custody of the property when D took it."

"Also note, if D intends to give the property back, the taking is not larceny.""""Under the Erroneous Takings Rule, is a taking under a claim of right ever larceny?" "No. According to the Erroneous Takings Rule, a taking under a claim of right is never larceny, even if D erroneously believes the property is his."How does continuing trespass impact whether a D is guilty of common law larceny?"If D wrongfully takes property, but without the intent to steal, he will not be


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guilty of larceny. But if D later forms the intent to steal, the initial trespassory taking is considered to have continued and he will be guilty of larceny. Note, this is an exception to the concurrence rule"What is common law embezzlement and what is the required mental state? "Embezzlement is conversion of the personal property of another by a person already in lawful possession of that property with the intent to defraud. The required mental state is specific intent to defraud (note, if D intends to give the exact property back in the exact form, he will not have the intent to defraud)"What is the key difference between common law embezzlement and larceny? "D mustalready have lawful possession of the property before a taking can be consideredembezzlement; possession involves more than mere custody, requires some authori

ty to exercise some discretion over the property."What is common law false pretenses? "False pretenses is obtaining title to the personal property of another by an intentional false statement with the intent to defraud.

Note, the false statement must be of a past or present event (not a future promise)"What is the key difference between common law larceny and false pretenses?"In larceny, D gets only custody of the property; in false pretenses, D gets title, meaning ownership"How is common law larceny by trick distinguishable from common law false pretenses? "If D obtains only custody as a result of the intentional false statement, the crime is larceny by trick, not false pretenses."

What is the required mental state for common law robbery and what are the threeelements? "-Mental State: Specific Intent-Elements: 1) A larceny; 2) from another's person or presence (some location reasonably close to V, e.g. rooms to a house other than the room in which V is located); 3) by force (any amount of force sufficient to overcome resistance; e.g., snatching a chain off the victim's neck, snatching a handbag off a woman's extended arm) or threat of immediate injury

Note, Pickpocketting is not robbery; it's larceny. Also, note that under modern statutory law, an individual who obtains the property of another through oral orwritten threats of future harm does not commit robbery; he commits the crime ofextortion, which is also called blackmail (e.g., give me your money, or I'll breakyour legs tomorrow!; give me your money, or I'll post those pictures of you on the

eb!)"What is common law forgery and what is the required mental state? Common law forgery is the making or altering a writing so that it is false. The required mental state is intent to defraud.What is the definition of larceny in NY? "Any crime that would be larceny, embezzlement, false pretenses of larceny by trick at common law is consideredlarceny in NY."What are the five degrees of larceny in NY? "1) First Degree: More than $1 million2) Second Degree: More than $50,0003) Third Degree: More than $30004) Fourth Degree: More than $1,0005) Petit Larceny: Anything $1,000 or less"

What are the three degrees of robbery in NY? "1) Third Degree: Forcible Stealing2) Second Degree: Forcible Stealing, plus one of the following: A) D is aided bysomeone who is actually (physically) present; OR B) V is injured; OR C) A car is stolen (carjacking)3) First Degree: Forcible stealing, plus one of the following: A) V is seriouslyinjured; B) D uses or display a fire arm (Note, as an affirmative defense, if Dcan prove that the gun was unloaded or inoperable, the crime is reduced to second degree robbery)."How does the victim being killed during a robbery impact the type of homicide D


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is guilty of in NY? "-If V is killed accidentally, second degree murder (felon murder-If V is killed intentionally, first degree murder""For the possession offenses, what are the requirements for the act element?""When a statute criminalizes the possession of contraband (e.g., drugs, stolen property, child pornography), possession means control for period of time long enough to have an opportunity to terminate possession""For possession offenses, what does constructive possession"" mean?""" "Constructive Possession"" means that the contraband need not be in D's actual possession,so long as it is close enough for him to exercise dominion and control over it."""

What is the required mental state for possession offenses? Knowledge (of possession AND of the character of the item possessed)What are three examples of possession offenses in NY? "1) Drugs: Criminal Possession of a controlled substance2) Firearms: Criminal Possession of a weapon (Note, the gun must be loaded and operable. Also note that the presence of a gun in a vehicle creates the statutory presumption that all occupants of the vehicle possessed the gun)3) Stolen Property: Criminal possession of stolen property (Note, the property must really be stolen. Property that is abandoned or is used with permission - e.g., by the police in an undercover sting - is not considered stolen)"What is common law burglary? Common law burglary is breaking and entering thedwelling (a structure where someone sleeps regularly) of another at night withthe intent to commit a felony inside.

"What does breaking"" mean in the context of common law burglary?""" "Breakingmeans creating/enlarging an opening by at least minimal force. This includes: breaking a window, opening a window, opening a door, but does not include climbing through an already open window, entering with permission.

Note, breaking can be constructive (constructive"" breaking), meaning entry is gaed through by fraud, threats or intimidation (e.g., woman obtain key to an apartment by telling the owner she will clean it for him while he is on vacation, butshe actually intends to steal his computer, which she does. Because she gainedentry to the apartment by fraud, this is a constructive breaking)""""What does entry"" mean in the context of common law burglary?""" Some part of D's body must enter the building.What does with the intent to Commit a Felony Inside refer to in the context of co

mmon law burglary? "Specific Intent Crime (intent to steal, rob, rape, assault, kill, etc. AT THE TIME D BREAKS IN)"What are the modern statutory changes to common law burglary? "Many states have eliminated the technical requirements of common law burglary (especially the breaking, at night, and dwelling elements)"What are the three degrees of burglary in NY? "1) Third Degree: entering or remaining unlawfully in a building with the intent to commit a crime inside.2) Second Degree: Third degree burglary, plus one of the following: A) the building is a dwelling; OR B) a non-participant is injured; OR C) D carries a weapon.3) First Degree: D knows that he is burglarizing a dwelling (so state of mind requirement), plus one of the following: A) a non-participant is injured; OR B) Dcarries a weapon."What is common law arson and what is the required mental state? "Arson is the ma

licious burning of a building Burning requires material wasting AND it must bethe building itself that burns (not the carpet, for example; must be burning orcharring of the building). The required state of mind is malice."What are the four degrees of arson in NY? "1) Fourth Degree: reckless burning of a building2) Third Degree: intentional burning of a building3) Second Degree: Third Degree arson, when D knows or should have known that someone was inside the building4) First Degree: Second Degree arson, plus a explosive or incendiary device"What are two statutory developments to common law arson? "1) Dwelling: Trad


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itionally, arson was limited to dwellings, but most states now extended arson to all buildings2) Of Another: Traditionally, a D couldn't not commit arson on his own property; mt states have eliminated that restriction""In accomplice liability, who is the principal?" The person who commits the crime."In accomplice liability, who is the accomplice?" An accomplice aids or encourages the principal with the intent that the crime be committed.How does NY s definition of accomplice for accomplice liability differ from thecommon law definition? "In NY, the accomplice need not specifically intend thatthe crime be committed. It is enough if the accomplice specifically intends to

aid the principle's conduct, and otherwise has the mental state required for theprincipal's crime. This means it is possible in NY to be an accomplice to a negligence or recklessness crime."What is the scope of accomplice liability? "The accomplice is guilty of allcrimes he aided or encouraged (just as if he did it), and all other foreseeablecrimes committed along with the aided crime."What are three important principles to keep in mind to determine when someone isnot an accomplice? "1) Mere presence at the scene of the crime does not make someone an accomplice; he or she must actively aid or encourage the principle2) Mere knowledge of the crime does not make someone an accomplice; he must intend to aid or encourage the principal (Note, like the common law, NY also requires intent for accomplice liability. However, mere knowledge can make someone guilty of the lesser crime of criminal facilitation)

3) Victims of crime cannot be accomplices, since they are considered members ofa protected class (e.g., minors can't be convicted of selling alcohol to a minor)"How can an encourager accomplice withdraw? An accomplice who only encouragedthe principal may w/draw simply by discouraging the crime (before it is committed).How can an aider accomplice withdraw? An accomplice who actually helped the principal must either neutralize the assistance or prevent the crime from happening (including notifying the authorities)What is withdrawal from accomplice liability called in NY? "Renunciation, which requires the accomplice to make a substantial effort to prevent the commission of the crime. Note, renunciation is an affirmative defense (burden on D).""In NY, what role does corroboration play in determining whether someone is guilty of accomplice liability?" "D may not be convicted solely upon uncorroborat

ed testimony of an accomplice, except in police disciplinary hearings."What is the common law approach to accessory after the fact? "To commit the separate common law offense of being an accessory after the fact, a D must 1) Helpa principal who has committed a felony; 2) With knowledge that the crime has been committed; and 3) With the intent to help the principal avoid arrest or conviction (usually not involved in planning or execution of the crime)""What are the modern statutory approaches to accessory after the fact, includingin NY?" "Typically called obstruction of justice, harboring a fugitive, as in NY) hindering prosecution."What is the definition of solicitation and what is the required mental state?"Solicitation is asking someone to commit a crime with the intent that the crimebe committed. The required mental state is specific Intent. Note, completion is unnecessary; the crime is in the asking."

What are the inchoate crimes? "1) Solicitation2) Conspiracy3) Attempt"What is the definition of conspiracy and what is the required mental state?"Conspiracy is an agreement between two or more people to commit a crime, plus an overt act in furtherance of the crime. The required mental state is specificIntent to accomplish the conspiracy's objective.

Note, completion is unnecessary; the essence of the crime of conspiracy is the agreement; completion of the conspiratorial objective is unnecessary for conviction


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.""What is an overt act"" in the context of conspiracy?""" "An overt act is any act, even if merely preparatory (Traditionally, the common law didn't require an overt act, but the majority of states now do)"Can you have a one-person conspiracy under Common Law and in NY? "-CommonLaw: NO. There must be at least two parties, both of whom actually agree to accomplish the conspiracy's objectives. (Related Common Law Rules: If all other parties to the agreement are acquitted, last remaining D cannot be convicted)-NY: YES. Under the unilateral approach of NY and the MPC, a D may be guilty ofconspiracy even if the other parties are acquitted or were just pretending to agree"

What is the Wharton Rule? "When two or more people are necessary for the commission of the substantive offense, there is no conspiracy unless more partiesparticipate in the agreement than are necessary for the crime (NY follows the Wharton Rule)

E.g., dueling requires 2 people, so would need three for conspiracy""What is the common law rule regarding vicarious (or Pinkerton"") liability?""""In addition to conspiracy, a D will be liable for other crimes committed by hisco-conspirators, so long as those crimes 1) Were in furtherance of the conspiracy's objective; and 2) Were foreseeable.""What is the NY rule regarding vicarious (or Pinkerton"") liability?""" No vicarious liability for one who merely conspires and does not participate in a crimecommitted by a con-conspirator

Is impossibility ever a defense to conspiracy? "Impossibility is never a defense to a charge of conspiracy (For example, D and A agree to kill V. When they arrive at V's house, they find that he is already dead. D and A can still be convicted of conspiracy to commit murder)"What is the general act requirement and required mental state for attempt crimes? "Unlike conspiracy, attempt requires an overt act beyond mere preparation. Regarding mental state, attempt requires the specific intent to commit the underlying crime."What is the test for determining whether an act is enough to satisfy the generalact requirement for attempt crimes under the Common Law and in NY? "The Common Law/NY Test (strict) states that conduct must get very close to the commission of the crime (sometimes called the dangerous proximity test)

Note, D is not close enough if he can't find V."What is the test for determining whehter an act is enough to satisfy the generalact requirement for attempt crimes under the MPC/Majority approach? "Under the MPC/Majority, conduct that constitutes a substantial step towards the commission of the crime, provided that conduct strongly corroborates the actor's criminalpurpose"Can a D attempt an unintentional crime? "No, you cannot attempt unintentional crimes, since you cannot intend to do something unintentional. Practically speaking, this means there are no attempt versions of recklessness crimes, negligencecrimes, or felony murder."What is factual impossibility and how does it impact criminal liability for attempt crimes? Factual impossibility means it is impossible to complete the crime because of some physical factual conditions unknown to D. Factual impossibili

ty is never a defense to attempt.What is legal impossibility and how does it impact criminal liability for attempt crimes? "Legal impossibility means it is impossible to complete the crime because of some legal circumstance or status that prevents the underlying crime from taking place. Legal impossibility is a defense to attempt.

Note, in NY, legal impossibility not a defense to attempt.""Under inchoate offense doctrines, is withdrawal/renunciation/abandonment ever adefense in NY/MPC and under the common law?" "-Common Law Rule: Withdrawal is not a defense. The exception is that once D withdraws from a conspiracy, he w


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ill no longer be vicarious liable for crimes committed by the con-conspirators after he left the conspiracy. However, D is still guilty of conspiracy and of all foreseeable crimes committed by co-conspirators prior to his withdrawal.-NY/MPC: Withdrawal can be a defense, but only if 1) D completely and voluntarily renounces the solicitation, conspiracy, or attempt, AND 2) the renunciationis based on a change of heart, not a fear of failing or being caught."What are the merger rules for the inchoate offenses? "-Solicitation and attempt merge with completed requirement (Note, in NY, solicitation does not merge).-Conspiracy does not merge.""In NY, how are defenses and affirmative defenses created for crimes?" Defensesand affirmative defenses are created by statuteDefenses and affirmative defense

s are created by statute.What are the three capacity defenses? "1) Insanity2) Infancy3) Voluntary Intoxication"What are the three most common tests used to gauge whether the mental disease ordefect fenders D legally insane? "1) The M'Nagthen Test (majority test purely cognitive): If D either A) Did not know that his act was wrong, OR B) Did not understand the nature of his act.2) The Irresistible Impulse Test (volitional test, sometimes combined w/ M'Naghten): If D eitherA) Was unable to control his actions; OR B) Was unable to conform his conduct tothe law3) MPC Test (used in roughly 25% of the states cognitive and volitional): If D

lacked the substantial capacity to either A) Appreciate the criminality of his conduct (cognitive aspect); ORb) Conform his conduct to the requirements of law"What is the first requirement needed for any insanity defense? The first requirement for the insanity defense is that D must have a mental disease or defectWhat two things must a criminal D do to raise an insanity defense in NY?"1) D must prove he lacked the substantial capacity to either A) Understand thenature of his act, OR B) Appreciate the wrongfulness of his conduct2) D must notify the prosecutor w/in 30 days from a not guilty plea' if raising insanity as a defense."How does incompetency differ from insanity? "1) Insanity: the issue is whether D was insane at the time of the crime. If yes, then D is not guilty2) Incompetency: the issue is whether D is insane at the time of trial. If yes,

then the trial is postponed until D is competent""Under the common law approach, when can voluntary intoxication be a defense andwhen can it not, and what does the defense require?" "-Can be a defense to specific intent crimes only-Cannot, therefore, be a defense to malice, general intent, or strict liabilitycrimes-The defense of intoxication requires such severe prostration of the faculties that D cannot form the requisite specific intent""Under the NY approach, when can voluntary intoxication be a defense and when can it not?" "-Can be a defense to intent crimes and knowledge crimes, if theintoxication prevents D from forming the required state of mind-Cannot be a defense to crimes of recklessness, negligence, or strict liability"What is the common law approach to the infancy defense? "The common law approach

to the infancy defense is the Rule of Sevens:

-If at the time of crime, the age is under 7: Prosecution not allowed-If at the time of crime, the age is under 14: Rebuttable presumption against prosecution-If at the time of the crime, the ages is 14 and older: Prosecution allowed"What is the NY approach to the infancy defense? "-If the age is under 13: Criminal prosecution as an adult not allowed; only juvenile delinquency proceedings in Family Court-If the ages is 13: Criminal prosecution as an adult allowed for second degree


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murder-If the age is 14 or 15: Criminal prosecution as an adult allowed for serious crimes against persons or property-If the age is 16 or older: Criminal prosecution as an adult allowed for any crime"What is the Common Law rule for the mistake of fact defense? "Whether a D's mistake of fact will be a defense depends upon the mental state for the crime and whether the mistake is reasonable or unreasonable. So if the mental state is:

-Specific intent, then any mistake (even an unreasonable one) will be a defense-Malice or general intent, then only a reasonable mistake will be a defense

-Strict liability, then mistake will never be a defense""Under the common law, when will a reasonable mistake and an unreasonable mistake be a defense?" "-A reasonable mistake will be a defense to any crime, except a crime of strict liability-An unreasonable mistake will be defense only to specific intent crimes"What is the NY rule regarding mistake of fact defenses? "In NY, a mistake of fact will be a defense if the mistake negates the required mental state. This means that:

-For crimes of purpose, knowledge or recklessness, any mistake of fact (even anunreasonable one) is usually a defense-For crimes of negligence, only a reasonable mistake will be a defense-For strict liability crimes, a mistake of fact will never be a defense, no matt

er how reasonable""Under the Common Law and in NY, what is the rule regarding mistake of law defenses?" "Mistake of law is generally not a defense. However, if the statue specifically makes knowledge of the law an element of the crime (e.g. selling phony Rolex watches knowing it is unlawful to do so), mistake of law can be a defense."What are common examples of deadly and nondeadly force? "-Common examples of nondeadly force: shoves and punches-Common examples of deadly force: guns and knives"What is the rule for use of nondeadly force in self-defense? D may use nondeadly force in self-defense if it's reasonably necessary to protect against an immediate use of unlawful force against himself.What is the rule for use of deadly force in self-defense? D may use deadlyforce in self defense if he is facing an imminent threat of death or serious bo

dily injuryWhat is the initial aggressor rule in the context of using deadly force in self-defense? "According to the Initial Aggressor Rule, a D may not use deadly force if he is the initial aggressor (i.e., the person who started the fight0.But initial aggressor can regain his right to use deadly force in self-defense if1) he withdraws from the fight and communicates that withdrawal to the other person; OR 2) V suddenly escalates the nondeadly fight into a deadly one

Note, in NY, the initial aggressor must withdraw before resorting to deadly self-defense, even if the other party suddenly escalates a nondeadly fight into a deadly fight."What is the retreat rule in the context of using deadly force in self-defense?"In some states, D is required to retreat before using deadly force in self-defe

nse Under the Majority Rule, retreat is not required. However, under the Minority rule and in NY, retreat is required, unless 1) D cannot retreat in completesafety, OR 2) D is in his home ( castle exception)."What happens if D is mistaken about the need for self-defense? "-Reasonable Mistake: If the mistake is reasonable, it's a complete defense-Unreasonable Mistake: If mistake is unreasonable, there is a split. Under theCommon Law/NY Rule, it

s no defense at all, but under the Minority/MPC Rule, itwill mitigate liability (Imperfect Self-Defense: An unreasonable belief in the need to use deadly force in self-defense will mitigate murder to voluntary manslaughter)"


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May force be used to prevent a crime? "-Nondeadly force may be used if necessary to prevent a crime-Deadly force may only be used to prevent a felony risking human life"Will a D have a defense if he uses force in defense of others? A D may use force and deadly force to protect others just the same as he could use to defend himself.What is the general rule and burglary rule to defense of property? "-General Rule: Deadly force may not be used to defend property-Burglary Rule: Deadly force may be used to prevent a burglary if the D is inside his or home"Will a D have a defense if he uses force in resisting arrest? "If D knows or r

easonably should know the person performing the arrest is a police officer, under the Majority Rule: D may use nondeadly force to resist the arresting officerif the arrest is unlawful.

In NY, force may not be used to resist an arrest, even an unlawful one, unless the arresting officer uses excessive force."When can a law enforcement officer use deadly force? An officer may use deadly force only when doing so is reasonable under the circumstances.What is the rule regarding the defense of necessity? "Necessity is a defenseto criminal conduct if D reasonably believed that his conduct was necessary to prevent a greater harm However, necessity cannot be a defense to homicide"What is the NY rule regarding the defense of necessity? "The harm avoided must be greater than the harm caused. Note, necessity can be a defense to homicide."

What is the rule regarding the defense of duress? "Duress is a defense ifD was forced to commit a crime because of a threat from another person of imminent death or serious bodily injury to himself or to a close family member. Duress cannot be a defense to homicide.

Note, in NY, duress can be a defense to homicide."What is the defense of entrapment? "If the government unfairly tempted D tocommit the crime, he may claim entrapment. This very narrow defense works onlyif 1) The criminal design originated with the government, AND 2) D was not predisposed to commit the crime (kicker, since gov't doesn't target people who do not have criminal backgrounds)"What is NY s Alibi Defense? "Under the Alibi Defense in NY, within 20 days after arraignment, the prosecutor may serve D with demand for the alibi defense,

and D must reply w/in eight days."What are the four global search and seizure issues? "1) Whether a search orseizure is governed by the Fourth Amendment2) Whether a search or seizure conducted with a warrant satisfies Fourth Amendment requirements3) Whether a search or seizure conducted without a warrant satisfies Fourth Amendment requirements; AND4) The extent to which evidence obtained through a search and seizure that violates the Fourth Amendment is nonetheless admissible in court""To determine whether the search or seizure is government by the fourth amendment, what two things should you look for?" "1) Was the search or seizure executed by a government agent?2) Was there a reasonable expectation of privacy in the area searched or the ite

m(s) seized?""In the context of the Fourth Amendment, what are the two most important categories of government agents and what are additional categories?" "-Two most important categories of gov't agents for bar: 1) Publicly paid police, on or off duty;2) Private Citizens, if (and only if) they are acting at the direction of the police.-Additional categories of potential gov't agents: 1) Private Security Guards onlyif they are deputized w/ the power to arrest (e.g. campus security officers at many public universities); 2) Public school administrators (e.g. principals; vice-principals)"


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What are the four protected areas which the Fourth Amendment protects individuals from unreasonable searches and seizures of? "1) Persons (i.e. bodies);2) Houses (including hotel rooms);3) Papers (e.g. letters, personal correspondence); AND4) Effects (e.g. purses, back packs)"What does the protection of houses include under the Fourth Amendment? "The protection of houses includes the area of domestic use immediately surrounding the e, called the curtalige (e.g. back yard enclosed by fence; front porch)""To implicate the Fourth Amendment, a search or seizure of persons, houses, papers or effects by gov't agents must invade an individual's reasonable expectation ofprivacy; what is the two-prong test for figuring out whether this standard has b

een met?" "1) The individual must have exhibited an actual or subjective expectation of privacy in the area searched or item(s) seized, AND2) The privacy expectation must be one that society recognizes as reasonable. Note, police search is presumptively unreasonable under the Fourth Amendment when it uses a device that is not in public use to explore details of the home that officers could not have known without physical intrusion (e.g. Police violated theFourth Amendment when, positioned outside the home without a warrant, they useda thermal imaging device to detect hot spots inside the home where the homeownead placed halid lights to grow marijuana)""""What are the eight categories of items that are sufficiently public"" in naturethat they carry no reasonable expectation of privacy, even if they are searchedor seized by gov t agents?""" "1) Paint scrapings on the outside of car2) Account records held by a bank

3) Airspace: anything that can be seen below while flying in public airspace4) Garbage left at the curb for collection5) Voice (sound of your voice)6) Odors (most important for the bar: those that emanate from D's car or D's luggage)7) Handwriting8) Open fields: that is, anything that can be seen in or across the open field

Note, the thing that these items have in common is knowing exposure to third parties."Who has standing to challenge a search or seizure under the Fourth Amendment?"To have authority, or standing, to challenge the lawfulness of a search or seizure by a gov't agent, an individual's personal privacy rights must be implicated, not

those of a third party."Does a search or seizure by gov't agent implicates individuals' reasonable expectation of privacy so as to confer standing under the Fourth Amendment if they own the premises searched? "Yes, always.""Does a search or seizure by gov't agent implicates individuals' reasonable expectation of privacy so as to confer standing under the Fourth Amendment if they do not own the premises, but reside there?" "Yes, always."Does a search or seizure by gov't agent implicates individuals' reasonable expectation of privacy so as to confer standing under the Fourth Amendment if they neither own nor reside in the premises searched but they are overnight guests there?"Always as to areas overnights guests can be expected to access (e.g. YES: living room, dining room, bathroom; NO: closet in host's bedroom)""Does a search or seizure by gov't agent implicates individuals' reasonable expectat

ion of privacy so as to confer standing under the Fourth Amendment if they neither own, nor reside, nor are staying overnight but are merely using someone's residence solely for business purposes?" "No, never (e.g. apartment of acquaintance used only to bag cocaine)"Does a search or seizure by gov't agent implicates individuals' reasonable expectation of privacy so as to confer standing under the Fourth Amendment if they own the property seized? Only if they have a reasonable expectation of privacy inthe area from which property was seized (e.g. Man who hides drugs in girlfriend's purse? NO!)Does a search or seizure by gov't agent implicates individuals' reasonable expectati


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on of privacy so as to confer standing under the Fourth Amendment if they are passengers in a car? "Only if they have a reasonable expectation of privacy in the area searched or the item seized (e.g., a cop finds a baggie of drugs w/ passenger's name on it under the driver's seat? NO!; A cop finds a bag of marijuanain a passenger's coat pocket in back seat? YES) But remember, a passenger's effectsare considered part of the vehicle for purposes of automobile searches; therefore, if the search is valid, the passenger will lose the challenge.

Note, in NY, passengers in cars can challenge possession of weapons if possession is attributed to them.""Is the fact that incriminating evidence may be introduced against an individual

in court sufficient, in and of itself, to provide the authority to challenge the search or seizure in court?" "No, the fact that incriminating evidence may beintroduced against an individual in court is insufficient, in and of itself, toprovide the authority to challenge the search or seizure in court.""To determine whether the search warrant under which criminal evidence was gathered satisfy Fourth Amendment requirements, what three key questions do you needto answer?" "1) Is the warrant supported by probable cause and particularity?2) If not, did police officers rely on a defective warrant in good faith? (appliesto MBE only: NY rejects the good faith doctrine)3) Was the warrant properly executed by the police?"What is the majority test for determining whether a search warrant was supportedby probable cause? "Probable cause requires proof of a fair probability that

contraband or evidence of crime will be found in the area searched, based on a preponderance of the evidence. Note, hearsay is admissible for this purpose."May the police use an informant s tip to establish probable cause in support ofa search warrant? "Yes, police may rely on information obtained through aninformant's tip, even if the information is unanimous; the sufficiency of the informant's tip rests on corroborations by the police of enough of the tipster's information to allow the magistrate to make a common sense practical determination thatprobable cause exists (based on a totality of the circumstances)."What is the NY test for determining whether a search warrant was supported by probable cause? "NY continues to use the stricter Aguilar-Spinelli test in evaluating probable cause. Under Aguilar-Spinelli, when applying for a search warrant, the government must establish two things: 1) The informant's basis of knowledgeAND 2) His veracity/reliability."

What is the standard regarding particularity and a search warrant? "The search warrant must specify the place to be searched AND the items to be seized. Note, you cannot have a general warrant that authorizes a fishing expedition in private areas that could not house the evidence for which there was probable cause to search."If a warrant that invalid due to absence of probable cause or particularity still be saved? "Yes, on the MBE, a warrant that is invalid due to absence of probable cause or particularity can still be saved if the officer relied on it in good faith. "

"Note, this is not the case in NY."""What is the general rule regarding the good faith doctrine in the context of Fourth Amendment search warrants and does NY follow it? "On the MBE, an officer's

good faith overcomes constitutional deficits in probable cause and particularity. NY rejects the good faith doctrine"What are the four categorical exceptions to the MBE

s good faith doctrine for search warrants that have constitutional deficits in probable cause and particularity? "1) The affidavit supporting the warrant application is so egregiously lacking in probable cause that no reasonable officer would have relied on it (e.g., bare bones affidavit that states only that police have received information from a confidential informant who is known to them and has provided reliable informn in the past)2) The warrant is so facially deficient in particularity that officers could not


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reasonably presume it to be valid (e.g., warrant authorizes a search for all serial numbers and identification numbers on all property at an address where probable cause existed only as to the presence of a stolen vehicle parked outside)3) The affidavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding4) The magistrate who issued the warrant is biased in favor of prosecution (e.g., salary of town official responsible for issuing search warrants comprised entirely of cash award for each warrant issued).""If the police had a valid warrant or, on the MBE only, a defective warrant saved by the officers' good faith, what question must you ask?" Was the warrantproperly executed by the police?

What are the two important aspects of the inquiry into whether the warrant was properly executed by the police? "1) Whether the officers executing the warrant complied with its terms and limitations (in executing the warrant, officers are allowed to search only those areas and items authorized by the language of the warrant); AND2) Whether the officers executing the warrant complied with the knock and announce rule""What is the knock and announce"" rule?""" "This rule requires police to knock and announce their presence AND their purpose before forcibly entering the place to be searched, unless the officer reasonably believes that doing so would befutile or dangerous or inhibit the investigation

Compare:

-No-knock entry was deemed reasonable where there was probable cause to believeoccupant was dealing drugs out of his home, had a violent criminal history, andkept a cache of weapons in the home-No-knock entry was deemed unreasonable where occupants believed to be making methamphetamine in their home had no violent criminal record, no evidence suggesting they were armed, and no demonstrated risk of destruction of evidence in the time it would take to knock and announce"What are the eight exceptions to the warrant requirement that would make a warrantless search through which criminal evidence was gathered valid? "1) Exigent Circumstances2) Search Incident to Arrest3) Consent4) Automobile

5) Plain View6) Inventory7) Special Needs8) Terry Stop and Frisk"What are the three kinds of exigent circumstances that would create an exceptionto the warrant requirement? "1) Evanescent Evidence: evidence that would dissipate or disappear in the time it would take to get a warrant (e.g. scrappingunder fingernail(s); blood evidence in DUI where breathalyzer refused).2) Hot Pursuit of Fleeing Felon: Hot pursuit allows police, when looking for a suspect, to enter a suspect's home or that of a third party into which he has fled. During hot pursuit, any evidence of a crime discovered in plain view while searching for the suspect is admissible.3) Emergency Aid exception: Police may enter a residence w/out a warrant when ther

e's an objectively reasonable basis for believing that a person inside is in needof emergency aid to address/prevent injury."What is the search incident to arrest exception to the warrant requirement?"The arrest (also called a custodial arrest) must be lawful. The justifications are officer safety AND the need to preserve evidence.The search must be contemporaneous in time and place with the arrest and the geographic scope is the wingspan, which includes body, clothing, and any containers w/in the arrestee's immediatecontrol without regard to the offense for which the arrest was made.

Note, in NY, to search containers w/in the wingspan, police must suspect the ar


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restee is armed"What is the rule regarding automobiles searched incident to custodial arrest inthe context of the search incident to arrest exception to the warrant requirement? "For automobiles searched incident to a custodial arrest, the permissible scope is the interior cabin, including closed containers but not the trunk. Note, once an officer has secured an arrestee (by, for example, handcuffing him andplacing him in the squad car), the officer can search the arrestee's vehicle onlyif she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made

In NY, once the occupant is out of the car, police cannot search closed containe

r or bags inside the vehicle to look for weapons or evidence of crime."What is the standard regarding the consent exception to the warrant requirement?"The consent exception to the warrant requirement is consent must be voluntary and intelligent. To satisfy this standard, police officers do not need to tell someone that she has the right to refuse consent.

ii. Scope of consent: Officer's consent to search extends to all areas for which a reasonable officer would believe permission to search was granted (objective reasonableness)"What is the scope of consent regarding the consent exception to the warrant requirement? "For the consent exception to the warrant requirement, the scopeof consent is the officer's consent to search extends to all areas for which a reasonable officer would believe permission to search was granted (objective reaso

nableness)""What does apparent"" authority mean in the context of the consent exception tothe warrant requirement?""" "Apparent authority means if a police officer obtains consent to search from someone who lacks actual authority to grant it, the consent is still valid under the Fourth Amendment, provided the officer reasonablybelieved that the consenting party had actual authority.

Example: apparent authority was found where officers believed that a woman had acal authority to consent to their entry into her boyfriend's apartment since she referred to the apartment as ours, had a key to enter it, and claimed to keep personal belongings there."How do shared premises impact the consent exception to the warrant requirement?"When adults share a residence, any or all of them may consent to a search of co

mmon areas w/in it. However, if co-tenants disagree regarding consent to searchcommon areas, the objecting party prevails, as to areas over which the co-tenants share dominion and control."What is the standard for the automobile exception to the warrant requirement?Police officers need probable cause to believe that contraband or evidence of crime will be found in the vehicle"For the automobile exception to the warrant requirement, where can police officers search?" "The police officers may search the entire vehicle and they mayopen any package, luggage, or other container that may reasonably contain the item(s) for which there was probable cause to search."How do traffic searches affect the automobile exception to the warrant requirement? "Sometimes what begins as a routine traffic stop results in a search ofall or part of the vehicle. For the search to be lawful, an officer does not ne

ed probable cause at the time the car is pulled over, provided he acquires it before initiating the search."What are the three requirements of the plain view exception to the warrant requirement and what is the special NY rule? "1) Lawful access to the place from which the item can be plainly seen;2) Lawful access to the item itself; AND3) The criminality of the item must be immediately apparently

Special NY Rule: Plain view seizure of an obscene material requires prior judic


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ial authorization.""For the inventory searches exception to the warrant requirement, inventory searches occur in what two contexts?" "1) Arrestees: when they are booked into jail2) Vehicles: when they are impounded"What are the three requirements needed to make inventory searches constitutionalwithout a warrant? "1) The regulations governing them are reasonable in scope;2) The search itself must comply with those regulations; AND3) The search is conducted in good faith; that is, it is motivated solely by theneed to safeguard the owner's possessions and/or to ensure officer safety (office

r's subjective intent matters)"What are the four categories for the special needs exception to the warrant requirement? "1) Random drug test: SCOTUS has approved warrantless, random drug tests in a variety of contexts, including A) Railroad employees, following animpact accident; B) Customs agents, who are responsible for drug interdiction;AND C) Public school children, who participate in any extracurricular activities. However, suspicionless drug tests are not permitted where their primary purpose is to gather criminal evidence for general use by law enforcement (e.g., the Indianapolis police department set up a checkpoint in a part of the city associatedwith drug trafficking, that subjected randomly stopped vehicles to search for drugs. SCOTUS disallowed the practice, finding that unlike sobriety checkpoints its primary purpose was to gather criminal evidence against drug dealers, not toprotect motorists from imminent threat to physical safety).

2) Government employees' desk and files: Warrantless searches of government employees' desks and files are permitted to investigate work-related misconduct3) Students' effects in public schools: Warrantless searches of the effects (e.ses, back packs) of public schoolchildren are permissible to investigate violations of school rules, such as the prohibition of smoking on school grounds4) Border searches: Neither citizens nor non-citizens have any Fourth Amendmentrights at the border, with respect to routine searches of persons and effects"What are terry stops in the context of the terry stops and frisks exception to the warrant requirement? "A terry stop is a brief detention or seizure for the purpose of investigating suspicious conduct. Note, terry stops can take place anywhere, e.g. on the street, in a car, in an airport concourse, or on a bus.

3. 4. Seizure and Traffic Stops

a. In a traffic stop, both the driver AND the passenger are seized, such that either can challenge legality of the stopi. Dog sniffs: Dog sniffs at traffic stops are permissible provided the sniff' does not prolong the stop unreasonably1. E.g., it is permissible for K-9 officers to sniff the exterior of a car during a traffic stop while the computer is checking the driver's license and registration""In the context of terry stops for the terry stops and frisks exception to the warrant requirement, when is an individual seized"" for Fourth Amendment purposes?""" "An individual is seized for Fourth Amendment purposes when, based on atotality of the circumstances, a reasonable person would not feel free to leaveOR to decline an officer's request to answer questions. In evaluating whether anindividual has been seized during questioning by law enforcement, you should con

sider whether an officer brandishes a weapon; the officer's tone and demeanor wheninteracting with the person questioned; AND whether the individual was told shehad the right to refuse consent.""In the context of terry stops for the terry stops and frisk exception to the warrant requirement, what is the federal and NY standard for police pursuit and seizure.""""" "-Federal Standard: When being pursued by a police officer, anindividual is seized only if he submits to the officer's authority by stopping orif the officer physically restrains him.-NY Standard: Police pursuit is a seizure in and of itself"What are terry frisks in the context of the terry stops and frisks exception to


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the warrant requirement? "A terry frisk is a pat down of the body and outer clothing for weapons that is justified by an officer's belief that a suspect isarmed and dangerous. If during a Terry frisk, an officer finds a weapon, it can always be seized. If, instead, the officer finds something she recognizes ascontraband without manipulating the object she can seize it as well

In NY, officers can seize an item only if it feels like a weapon."What is standard for car frisks in the context of the terry stops and frisks exception to the warrant requirement? "When conducting a traffic stop, if an officer believes that a suspect is dangerous, he may search the passenger cabin of the suspect's vehicle, limited to those areas in which weapon may be placed or h

idden.""What are protective sweeps"" in the context of terry frisks and the terry stopsand frisks exception to the warrant requirement?""" "When making an in-homearrest, police may sweep the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety"What evidentiary standards apply to terry stops and frisks? "Reasonable suspicion, which is less than probable cause. For terry stops, it requires specificand articulable facts that inform an officer's belief that criminal activity is present (Note, an officer's subjective intent is irrelevant in evaluating the legality of the stop; the Fourth Amendment is concerned solely w/ its objective reasonableness). For terry frisks, it requires specific and articulable facts thatsuggest a suspect is armed and dangerous (remember, a terry frisk is justified by a concern for officer safety only; it is not a general search for criminal evi

dence)"What evidentiary standards apply in protective sweeps in the context of the terry stops and frisks exception to the warrant requirement? "-Officers may sweep the area immediately adjoining the place of aresst, provided there is reasonable suspicion that the house harbors a person who poses a danger to those on thearrest scene-To justify a sweep of more remote areas, the arresting officers must have additional facts sufficient to allow a reasonable prudent officer to conclude that an individual who may threaten officer safety is present in the area swept""Under the exclusionary rule, to what extent can prosecutors use the evidence gathered in an unconstitutional search and seizure against D in court?" "According to the exclusionary rule, evidence, whether physical or testimonial, that isobtained in violation of a federal statutory or constitutional provision is inad

missible in court against the individual whose rights were violated."What are the five Fourth Amendment limits on the exclusionary rule? "1) Case-in-chief vs. cross-examination: Unconstitutionally obtained evidence is excluded from the case-in-chief; it may be introduced to impeach D's testimony on cross-examination2) Knock and Announce violations: A failure to comply with the knock and announcule does not require suppression of the evidence subsequently discovered3) Police misconduct: To trigger application of the exclusionary rule, police misconduct must be deliberate, reckless, or grossly negligent (e.g. exclusionaryrule did not apply to bookkeeping error by police employee that led to an unlawful arrest where the error was the result of simple, not gross negligence)4) Officers' reasonable mistakes: The exclusionary does not apply to evidence erreously obtained when executing a search warrant, provided an officer's mistake was

reasonable (need to stop search when they realize their mistake5) Fruit of the Poisonous Tree: Derivative (secondary"") evidence, or evidence, physical and testimonial, that is obtained by exploiting prior unconstitutionalconduct, e.g., a confession obtained as a result of an earlier unlawful arrest,is called fruit of the poisonous tree and like direct evidence obtained in violation of the Fourth Amendment, it's inadmissible in the prosecution's case-in-chief.To nullify fruit of the poisonous tree, prosecutors must show a break in the causal link between the original illegality and criminal evidence that is later discovered.""""What is direct evidence in the context of the fruit of the poisonous tree"" Fou


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rth Amendment limits on the exclusionary rule?""" "Direct Evidence is evidence directly linked to the constitutional violation, e.g., evidence gathered pursuant to a search warrant that violates the Fourth Amendment""To nullify fruit of the poisonous tree,"" what are the three doctrines that canshow a break in the causal link between the original illegality and criminal evidence that is later discovered?""" "1) Independent Source: this doctrine applies where there is a source for the discovery and seizure of the evidence that is distinct from the original illegality (e.g., a parallel process initiated by other officers)2) Inevitable Discovery: this doctrine applies where the evidence would necessarily have been discovered through lawful means (e.g., the body of a dead girl, dis

covered by the police through an unlawful interrogation, would necessarily havebeen found lawfully by the police who were presently conducting a grid search of the area in question)3) Attenuation: this doctrine admits derivative evidence where the passage of time and intervening events purge the tape of the original illegality and restore D'sree will (e.g., D illegally arrested on Friday, meets with attorney on Monday, confesses on Tuesday)"What are the four major requirements for a wiretap warrant? "1) Suspected persons: the warrant must name the suspected persons whose conversations are to be overheard2) Crimes: There must be probable cause that specific crime has been committed3) Conversations: The warrant must describe with particularity conversations that can be overheard

4) Time: Wiretap must be for a strictly limited time period""What is the Unreliable Ear"" doctrine and Assumption of Risk?""" "According to Unreliable Ear doctrine and Assumption of the Risk, if you speak to someonewho has agreed to a wiretap or some other form of electronic monitoring, you have no Fourth Amendment claim; you assume the risk that the other party will not keep your conversations private."When does an arrest occur? "An arrest occurs whenever the police take someone into custody against his will for prosecution or interrogation. Note, it isconsidered a de facto arrest when the police compel someone to come to the police station for questioning or fingerprinting."What is the standard of proof for all arrests? THE STANDARD OF PROOF for all arrests is always PROBABLE CAUSE.For what offense does the FOURTH AMENDMENT PERMIT A CUSTODIAL ARREST? "ALL OFF

ENSES, even those punishable by a monetary fine only""Do the police need a warrant to arrest someone in a public place, in their home, or in the home of a third party?" "-Police do not need a warrant to arrestsomeone in a public place;-Absent an emergency, police officers need a warrant to arrest someone in his orher home-To arrest someone in the home of a third party, police officers need an arrestwarrant and a search warrant""What is the common enterprise theory?""""" "Under the common enterprise theory,"" in a traffic stop, where a police officer discovers evidence of crime that suggests a common lawful enterprise between the driver and his passenger(s), the officer may arrest any or all of them, based on the reasonable inference of shared dominion and control over the contraband."""

"In NY, what does the sliding scale of police authority"" refer to in the context of minimal intrusion or a request for information by the police?""" Police can approach and request information except on whim or caprice. Individuals rightnot to respond and even to run away does not give police probable cause to arrest.What are the three federal constitutional challenges that can be brought to exclude a confession? "1) Fourteenth Amendment: Due Process Clause2) Sixth Amendment: Right to Counsel3) Fifth Amendment: Miranda Doctrine""In addition to the three federal constitutional challenges, how else can a D ch


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allenge an admission of a confession in NY?" "Ds can also challenge a confession under NY's indelible right to counsel, which derives from the Sixth Amendment of the state constitution."""What is the standard for excluding a confession under the due process clause?"The standard for excluding a confession under the due process clause is involuntary-ness, which means that the confession is the product of police coercion that overbears the suspect's will. Note, spiritual compulsion does not implicate due process!

NY has specifically ruled that the length of interrogation and custody are factors in determining voluntary-ness of confessions."

What is the right to counsel under the Sixth Amendment? "The right to counsel under the Sixth Amendment is an express constitutional guarantee that attaches when D is formally charged, not upon arrest and applies at all critical stages of theprosecution that take place after the filing of formal charges, including arraignment, probable cause hearings, police interrogation and sentencing.4) This offense is offense specific. This means it applies only to the charges filed against you. It provides no protection for uncounseled interrogation for other uncharged criminal activity.5) Incriminating statements obtained from D by law enforcements about charged offenses violates the Sixth Amendment if those statements are deliberately elicited and D did not knowingly, intelligently, and voluntarily waive his right to have his attorney present.""What is NY

s indelible"" right to counsel?""" "NY's right to counsel, referred t

o as the indelible right to counsel provides greater protection than the Sixth Amendment. The indelible right to counsel attaches not only at formal charging, butalso whenever there is significant judicial activity or activity overwhelming to an ordinary person before the filing of an accusatory instrument such that D may benefit from the presence of counsel. Accordingly, if D is taken into custodyfor questioning on a charge and the police are aware that he is represented bycounsel on that charge, they may not question him about that charge or any othermatter w/out his attorney present""In NY, if D is represented by counsel, does a waiver of the indelible right tocounsel need to take place in the presence of the attorney?" "Yes; if D is represented by counsel, waiver of the indelible right to counsel must take place in the presence of the attorney. However, if D is released and later arrested onunrelated charges, waiver can be made w/out the presence of counsel from prior

charges"Is the Sixth Amendment right to counsel offense specific? "Yes, the rightis offense specific. This means it applies only to the charges filed against you. It provides no protection for uncounseled interrogation for other uncharged criminal activity."When does an incriminating statement obtained from D by law enforcements about charged offenses violate the Sixth Amendment? "Incriminating statements obtained from D by law enforcements about charged offenses violates the Sixth Amendment if those statements are deliberately elicited and D did not knowingly, intelligently, and voluntarily waive his right to have his attorney present."What are Miranda rights? Miranda rights are implied rights grounded in the Self-Incrimination Clause of the Fifth Amendment.What are the core Miranda warnings? "1) Right to remain silent

2) Anything you say can and will be used against you in a court o law3) Right to an attorney4) If you cannot afford one, an attorney will be appointed for you"What are the two core requirements for when Miranda warnings are necessary?"1) Custody: A suspect is in custody, for Miranda purposes, if the atmosphere, viewed objectively, is characterized by police domination and coercion such thatsuspect's freedom of action is limited in a significant way2) Interrogation: The Fifth Amendment Miranda doctrine defines as any conduct the police knew or should have known was likely to elicit an incriminating response (subjective intent of police officer is less important here than under Sixth


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Amendment). Note, Miranda does not apply to incriminating statements made spontaneously since they are not the product of interrogation.""What is the public safety"" exception to the Miranda doctrine?""" "Under the public safety"" exception, if a custodial interrogation is prompted by an immediate concern for public safety Miranda warnings are unnecessary and any incriminating statements are admissible against the suspect."""When are incriminating testimonial responses obtained through custodial interrogation admissible? "Unless the public safety exception applies, incriminating testimonial responses obtained through custodial interrogation are admissibleprovided the officer, before initiating questioning reasonably conveys to the suspect his core Miranda rights; AND thereafter obtains a valid waiver of the suspe

ct's Miranda rights to silence and counsel."What are the two core requirements for a valid Miranda waiver? "1) Knowing and Intelligent: A Miranda waiver is knowing and intelligent if the suspect understands the nature of the rights AND the consequences of abandoning them2) Voluntary: A Miranda waiver is voluntary if it is not the product of police coercion (Note, under NY's parent/child rule, if the police use deception or concealment to keep a parent away from a child who is being interrogated, the child's waiver may be deemed invalid)"How can a Miranda waiver be executed? "A Miranda waiver need not be express; itmay, instead be implied by a course of conduct that indicates the desire to speak with police interrogators. If a suspect has received and understood his Miranda rights, he waives his right to remain silent by making an uncoerced statementto the police

Note, Justice O'Connor has commented in this regard that suspects are not entitledto a flow of information to calibrate their self-interest."Who bears the burden of proving a valid Miranda waiver? "In proving a valid wavier of suspect's Miranda rights, prosecution bears burden of proof by a preponderance of the evidence"How must a D invoke his right to remain silent under the Miranda doctrine and what is it effect? "Suspects must unambiguously invoke their right to remain silent (have to say it). Once the suspects invoke the right to remain silent,police officers must scrupulous honor the invocation. This means, the very leastthat the police cannot badger a suspect into talking, must wait a significant period of time before reinitiating question; AND must first obtain a valid Miranda waiver before reinitiating questioning."

How must a D invoke his right to conusel under the Miranda Doctrien and what isthe effect of a D invoking this right? "D s request for counsel must be sufficiently clear that a reasonable officer in the same situation would understand thestatement to be a request for counsel. Once a suspect asks for counsel (lawyersup); all interrogation must cease unless initiated by the suspect. The request for counsel expires 14 days after a suspect is released from custody; a waiver ofthe Miranda right to counsel obtained after this period is valid, provided it isknowing, intelligent and voluntary

Note, unlike the Sixth Amendment, the Fifth Amendment right to counsel is not offense-specific; therefore, interrogation following a request for counsel under Miranda is prohibited as to all topics, outside the presence of the suspect's attorney."

What are the three limitations on evidentiary exclusion as applied to Miranda violations? "1) Incriminating statements obtained in violation of a suspect'sMiranda rights are inadmissible in the prosecutor's case-in-chief but may be usedto impeach D's testimony on cross-examination but NOT the testimony of third partyWs.2) Failure to give a suspect Miranda warnings does NOT require the suppression of the physical fruits of incriminating statements, provided the statements are voluntary (e.g., D confesses to officer that he killed V and where he hid the murder weapon. The interrogation is found to violate Miranda. However, the weaponcannot be suppressed)


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3) If a statement is inadmissible due to a Miranda violation, subsequent statements made after obtaining a Miranda waiver are admissible, provided initial, non-Mirandized statement was not obtained through the use of inherently coerce police tactics, offensive to due process""If testimonial evidence that should have been excluded as violative of Mirandawas improperly admitted at trial and D was convicted, is the court required to vacate the guilty verdict?" "It depends. The guilty verdict will stand if the government can prove, beyond a reasonable doubt, that the error was harmless,because the D would have been convicted without the tainted evidence. This harmless error rule also applies to physical evidence improperly admitted under theFourth Amendment."

What are the three types of pretrial identification? "1) Line-ups: W is asked to id the perpetrator from a group2) Show-ups: one-on-one confrontation between W and suspect3) Photo arrays: W asked to pick out the perpetrator from a series of photos"What are the two substantive challenges to pretrial identification? "1) Denial of the Right to Counsel: There is no Fifth Amendment right to counsel underMiranda for pretrial id procedures. However, a right to counsel exists under thesixth Amendment at line ups and show ups that take place after formal charging,but there is no Sixth Amendment right to counsel at photo arrays (Note, NY provides greater protection for suspects. In NY, you have the right to have an attorney present at a line-up conducted before formal charges if you are aware thatyou have counsel and you request that counsel be present)2) Violation of Due Process: A pretrial identification procedure violates the D

P clause of the Fourteenth Amendment when it is so unnecessarily suggestive thatit creates a very substantial likelihood of irreparable misidentification. Inmaking this determination, courts must weigh the reliability of a suggestive identification against its corrupting effect."What is the remedy for constitutional violations in pretrial identifications?"The remedy for constitutional violations in pretrial identification is the exclusion of W's in court identification. However, even if there is a constitutionalviolation in a pretrial identification procedure, an in-court identification will still be allowed if the prosecution can prove that it is based on observationsof the suspect other than the unconstitutional show-up, line-up or photo array.""What are three facts that the prosecution can point to in order to prove that aW s in-court trial identification is based on observations of the suspect other

than the unconstitutional show-up, line-up or photo array?" "1) W's opportunity to view D at the crime scene;2) The certainty of the W's identification; AND3) The specificity of the description given to the police"What do grand juries do? Issue indictmentsAre grand jury proceedings public? "No, they are secret proceedings."Do states have to use grand juries as part of the charging process? "No, they do not need to use grand juries as part of the charging process and most states don t.""In NY, what must a grand jury indictment establish?" Indictments must establish all elements of the offense and provide reasonable cause to believe that theaccused committed the offense.What is the standard of proof for pretrial detention? The government needs pro

bable cause both to bind a D over for trial and to detain him in jail before trial.Is a detention hearing necessary to justify a pretrial detention? "A detention hearing, or a hearing to determine probable cause (sometimes called a Gerstein hearing), is unnecessary to justify pretrial detention if 1) the grand juryhas issued an indictment; OR 2) a magistrate has issued an arrest warrant.""In the context of pretrial detention, what must happen soon after a D

s arrest?" "Soon after arrest, D must be bought before a magistrate who will:1) advise him of his rights; 2) set bail; AND 3) appoint counsel if necessary."When may decisions regarding bail be appealed? Decisions regarding bail are imm


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ediately appealable.What is the Brady rule? A prosecutor must disclose to a criminal D all materialexculpatory evidence.What two things does a right to an unbiased judge mean? "1) The judge has no financial stake in the outcome of the case; AND2) The judge has no actual malice toward D"When does a criminal defendant have a right to a jury trial? Criminal Ds havethe right to a jury trial when the maximum authorized sentence exceeds six months.How many jurors must there be and how many does NY require? "There must be at least six jurors in a criminal trial. NY (like most states) requires 12 perso

n juries; however, a D can waive this requirement and proceed to verdict with only 6 jurors participating in the deliberations."Do jury verdicts need to be unanimous? "Jury verdicts in criminal trials must be unanimous only if 6 jurors are used; verdicts in 12-person juries need not beunanimous.

Note, NY requires unanimous jury verdicts (like most states).""What is the cross sectional"" requirement for juries?""" "The cross-sectional requirement regarding jurors require that the pool from which the jury is drawn represents a cross-section of the community; therefore, a jury that containsall white women over the age of 60 does not violate the cross-sectional providedthe pool from which it was drawn was appropriately diverse."What are peremptory challenges in the context of juries? "Peremptory chal

lenge permit both sides to exclude jurors without stating their reasons for doing so, but they can't be used by either side to exclude prospective jurors on account of race or gender."When does a D s Sixth Amendment right to confront Ws against him not apply?"D's Sixth Amendment right to confront adverse Ws does not apply where face-to-face confrontation would contravene important public policy concerns (e.g., traumatizing a child W)."What is the two-prong test that applies to claims of ineffective assistance of counsel? "1) Counsel's performance was deficient (example of the strictness of thedeficiency standard: Insufficient showing of deficiency where attorney took catnape during trial but was otherwise effective); AND2) But for the deficiency, the outcome of the trial would have been different (the prejudice requirement) (example of strictness of prejudice standard: Insuffici

ent showing of prejudice where attorney slept through entire 15-minute testimonyof W for the prosecution and thus could not engage in any cross-examination; noprejudice because W testified as to non-contested matters only)"What is a NY example regarding an ineffective assistance of counsel claim?Reversal of a guilty verdict was not required on ineffective assistance of counsel grounds when one (but not both) of two attorneys representing D was found tobe unlicensed.What is required for a plea to be valid? "For a guilty plea to be valid,the judge must establish that it is voluntary AND intelligent.""What is a plea-taking colloquy?""""" "In order to show that a guilty plea isvoluntary AND intelligent (thus making it valid), the judge must conduct a plea-taking colloquy in which judge addresses in open court and on the record: 1) the nature of the charges (including required elements of the offense); AND 2) the c

onsequences of the plea (e.g., waiver of the right to plead not guilty; waiver of the right to a trial)."What are the four scenarios in which a D may withdraw a guilty plea after sentencing? "1) The plea is involuntary, due to a defect in the plea-taking colloquy;2) There is a jurisdictional defect (i.e., the wrong court took the plea);3) D prevails on a claim of ineffective assistance of counsel; OR4) The prosecutor fails to fulfill his end of the bargain;the remedy is D can w/draw plea and go back to square one (e.g., prosecutor agrees to make no sentencing recommendation but at the sentence hearing, he tells the judge to impose maxi


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mum penalty).""In the context of punishment, what is the Eighth Amendment standard?" The Eight Amendment prohibition against cruel and unusual puni

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