CRIMINAL LAW & CRIMINAL PROCEDURE: BAR EXAM CHECKLIST - Webs

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Definition. Prohibits the introduction of evidence obtained in violation of a criminal's 4th, 5th, and 6th Amend. rights . ... CRIMINAL LAW & CRIMINAL PROCEDURE: BAR EXAM CHECKLIST Author: George A. Bibikos Last modified by: George A. Bibikos
Criminal Law & Criminal Procedure: Bar Exam Checklist

1) Hot MBE Topic a) Mental States b) Transferred Intent c) Accomplice Liability d) Inchoate Offenses e) Defenses: Intoxication, Infancy, Self Defense, Mistake of Fact f) Homicide g) Felony Murder Defenses h) Distinctions between Larceny, Embezzlement, & False Pretenses i) Robbery j) Burglary k) Arson

2) Exam Tips a) “What is (’s best defense” means what is defendant’s most complete defense b) “Which of the following is most likely . . .” c) “Law is unconstitutional” is presumptively the wrong answer in criminal law questions (not criminal procedure questions) d) MBE is fundamentally a reading comprehension test

3) Jurisdiction a) Situs of Crime i) Where conduct of crime occurred or ii) Where result of crime occurred b) Can be more than one state c) Crimes of omission: JD where the act should’ve taken place

4) Merger a) Generally, no merger b) Solicitation and attempt merge into substantive offense c) Conspiracy does not merge into substantive offense

5) Act a) Any bodily movements b) Exceptions i) Conduct not product of one’s own volition ii) Reflexive or convulsive acts (seizures) iii) Acts performed while unconscious or asleep (sleepwalking) c) Omissions i) No duty to rescue ii) Duty to Act IF: 1) Statute says so 2) Contract says so 3) Relationship requires it 4) You voluntary assume a duty of care and then fail to perform 5) Your conduct creates the peril

6) Mental States a) Specific Intent b) Malice—Recklessness or extreme indifference to human life c) General Intent d) Strict Liability 7) Specific Intent Crimes (S-C-A-F-A-L-B-E-R-F-F) a) Solicitation b) Conspiracy c) Attempt d) First degree murder (MBE will tell you if it’s first degree murder) e) Assault f) Larceny g) Embezzlement h) False pretenses i) Robbery j) Burglary k) 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 OBJECTIVE—i.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 it’s a minority JD—rests 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) You’re in your own home 2) You’re being raped or robbed 3) You’re a police officer

d) Original Aggressors i) Must withdraw from using force AND ii) Communicate your withdraw iii) VERY RARE—don’t 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) Duress—“I’ll kill you if you don’t rob that store” b) Necessity—criminal 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 Application of Defense

Specific Intent ANY Mistake, whether reasonable or unreasonable

Malice & General Intent Reasonable Mistakes Only

Strict Liability NEVER!

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 doesn’t apply

25) Battery a) General Intent Crime b) Battery is a completed assault

26) Assault a) Majority View: Attempted battery assault (specific intent crime) b) Minority View: Threaten with bodily harm (general intent crime)

27) Murder a) Intent to kill b) Intent to cause great bodily harm c) Depraved heart murder d) Felony murder 28) Voluntary Manslaughter a) PASSION killing b) EXTREME provocation

29) Involuntary Manslaughter a) Killings from criminal negligence b) Misdemeanor manslaughter (killing during commission of misdemeanor or unenumerated felony)

30) First Degree Murder: MBE Ways to Test a) Say “First Degree Murder” b) Give you a statute

31) Felony Murder a) Death during the commission of a felony b) Felony is either enumerated or inherently dangerous

32) Defenses to Felony Murder a) ( must be guilty of the underlying felony b) Felony must be independent of the killing (i.e., manslaughter or battery cannot be the underlying felony) c) Death must be foreseeable (usually is) d) Death must come during the commission of a felony or while fleeing and lasts until ( reaches a temporary place of safety e) Red Line View: ( NOT liable for the death of a co-felon as a result of resistance by co-defendant of the police

33) Rape a) Unlawful carnal knowledge with woman without her consent b) Slightest penetration completes the rape c) Consent is a defense

34) Statutory Rape a) Strict liability crime b) No consent, no mistake of fact defenses (see chart)

35) Larceny a) Taking property in the belief that it is yours or you have some right to it is not larceny b) Elements i) Taking (stealing) ii) Carrying away (however slight) iii) Personal property iv) Of another v) Without consent (consent by fear or fraud is not consent) vi) With the intent to permanently deprive owner of property vii) Intent must exist at the time of the taking

36) Robbery a) Robbery = Larceny + Assault b) Taken from the person or his presence (presence defined broadly) c) Against the will of victim d) By violence or fear of imminent harm (not future harm; future harm is extortion) e) Not pick-pocketing

37) Embezzlement a) Lawful possession (E.g., trustee of trust fund) b) Followed by illegal conversion c) Embezzler need not benefit d) Possession only, not title

38) False Pretenses a) Convey title b) By false representation c) Present or past fact (not future facts)

39) Extortion a) Blackmail b) Need not take from person or his presence c) Must be a threat of future harm

40) Burglary a) Actual or constructive breaking b) Entering c) Dwelling house d) Of another e) At night f) With the intent to commit a felony therein (at common law, not assault, not battery) g) Intent must exist at the time of the breaking and entering

41) Arson a) Malicious burning b) Dwelling house c) Of another d) Material wasting of fiber of building by the fire e) No explosions, water damage, or smoke damage—must be damage from FIRE

Criminal Procedure: Bar Exam Checklist

1) Hot Topics a) Exclusion and its Limitations b) Fruit of the Poisonous Tree Doctrine c) Search and Seizure d) Miranda e) Pretrial Identification f) Right to Jury Trial g) Guilty Pleas h) Ineffective Assistance of Counsel i) Fifth Amendment j) Double Jeopardy k) Compelled Testimony

2) Exclusionary Rule (Hot Topic!)

a) Definition i) Prohibits the introduction of evidence obtained in violation of a criminal’s 4th, 5th, and 6th Amend. rights ii) At a criminal trial

b) Fruit of the Poisonous Tree (Hot Topic!) i) Illegally obtained evidence and all evidence obtained from that evidence must be excluded. ii) Ex: If ( was illegally arrested w/o probable cause and confessed, the confession is excluded.

c) Breaking the Causal Chain Exceptions (3 Ways) i) Independent Source: Evidence obtained from a source independent of the original illegality. ii) Intervening Act of Free Will: by the ( will break the causal chain (Ex: ( was illegally arrested and released but then returned to the station house later to confess. iii) Inevitable Discovery: Police would have discovered the evidence whether or not they had acted constitutionally.

d) Limitations on the Rule: The Exclusionary Rule is Inapplicable to: i) Grand Juries: witnesses may be compelled to testify even if the questions are based on evidence from illegal search and seizures. ii) Civil Proceedings. iii) Internal Agency Rules. iv) Parole Revocation Proceedings.

e) Good Faith of Police Defense (3 Circumstances) i) Case law later changed by another judicial opinion. ii) Facially valid statute as it then existed, even if the statute was later declared unconstitutional. iii) Defective search warrant.

f) Exceptions to Good Faith Defense based on Defective Search Warrant (4 Exceptions) i) Affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would have relied on it. ii) Warrant is defective on its face. iii) Police officer getting the warrant lied to the magistrate. iv) Magistrate has wholly abandoned his judicial role.



g) Use of Excluded Evidence for Impeachment Purposes i) Voluntary Confessions in Violation of Miranda is admissible to impeach ii) Truly involuntary confession is never admissible. iii) Fruit of Illegal Searches may be used to impeach a criminal defendant on cross. 1) Ex: Prosecution had an illegally obtained shirt that the ( cut holes out of to make pockets to smuggle drugs. ( took the stand and said he never smuggled drugs with a shirt. Prosecution brought in the shirt. 2) Illegally obtained evidence is never admissible to impeach a witness other than the (.

3) Fourth Amendment

a) Arrests and Other Detentions i) Public Place Exception 1) Police do not need a warrant to arrest a ( in a public place. ii) Home Arrests Require Warrant 1) Police must have an arrest warrant to do a non-emergency arrest in someone’s own home. iii) Station House Detention 1) Police officers must have full probable cause for arrest to bring a suspect to the station house for questioning or fingerprinting.

b) Evidentiary Search and Seizure (8 MBE ?’s) i) Does the ( have a 4th Amend. right? 1) Was there governmental conduct? a) Either the publicly paid police or b) Citizens acting at their discretion or c) Private security guards deputized as officers of the public police w/ the power to arrest. 2) Did the ( have a Reasonable Expectation of Privacy? ii) If the ( had a 4th Amend. right, did the police have a valid warrant? iii) If the police did not have a valid warrant, did they make a warrantless search and seizure? iv) If so, is it subject to the Good Faith Defense?

c) Reasonable Expectation of Privacy i) Person must have a REOP with respect to the place searched or the item seized to have a 4th Amend. right. ii) REOP gives a person standing to challenge a search or seizure

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 Grandparent’s 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 one’s voice. 2) One’s handwriting. 3) Paint on the outside of a car. 4) Smell of one’s luggage and other odors (i.e., drug dogs). 5) Account records held by bank. 6) Garbage. 7) Automobile’s movement on public roads and arrival at a private residence, even if detection of movement requires a tracking bug. 8) Open Fields Doctrine. 9) Fly-over

e) Searches Conducted Pursuant to a Warrant

i) 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.

ii) Showing of Probable Cause (Essay ?) 1) Use of Informers – Totality of Circumstances Test a) If affidavit of probable cause is based on information obtained from informers, its sufficiency is determined by the totality of the circumstances. b) Warrant may be based on hearsay.

iii) Warrant Must Be Precise on Its Face (1 MBE ?) 1) Warrant must state with reasonable precision the place to be searched and the things to be seized. 2) Requirement is strictly enforced. 3) Ex 1: Warrant for 416 Oak Street issued but the address is a duplex. In a multi-unit dwelling, the warrant must say what unit to search. But if the police reasonably believe there is only one unit, anything they discover from the wrong unit before they realize their mistake is admissible. 4) Ex 2: Warrant issued for specific documents and “other fruits and instrumentalities” unknown at that time was valid in a complex criminal fraud case. The police had a difficult time predicting exactly what form the evidence to prove guilt could take.

iv) Neutral and Detached Magistrate (1 MBE ?) 1) Magistrate must be neutral and detached from business of law enforcement. 2) No good faith defense available if magistrate is not neutral and detached. 3) Example: Clerk of court issuing warrants for violations of city ordinances is neutral & detached 4) Not Neutral and Detached a) State attorney general. b) Magistrate who doesn’t get paid unless she issues warrants. c) Magistrate who comes along in the search

4) Exceptions to Warrant Requirement

a) Search Incident to Lawful Arrest i) Lawful arrest ii) Search must be contemporaneous with time and place of arrest iii) Scope is the person’s wingspan iv) Automobiles: Wingspan includes interior of car, compartments BUT NOT the trunk

b) Automobile Exception i) Probable cause required ii) Scope is entire car, interior, compartments, trunk, and containers iii) Containers—must have PC that the item you’re looking for could reasonably be found in the container (i.e., drugs( search the container; TVs( can’t search the container) iv) PC can arise after the car is stopped but MUST arise before anything or anyone is searched

c) Plain View Searches i) Officer must legitimately be there and ii) Item must be in plain view



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) Stop & Frisk i) Reasonable suspicion (less than PC) ii) Stop and frisk to search for weapons iii) Weapons always admissible as long as the stop was reasonable iv) Non-weapons: If it appeared from the frisk that it could be a weapon or contraband, admissible

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 anyone’s home, not just fleeing felon

h) Wiretapping & Eavesdropping i) Both require a warrant ii) ONLY Exception: Unreliable Ear: Everyone assumes the risk that the person to whom one is speaking with is wired or working for the police

5) Miranda

a) Test i) Custody—not free to leave ii) Interrogation—any conduct where police knew or should’ve 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 can’t afford one, they’ll give you one

c) Where Miranda is Not Required i) Spontaneous Statements ii) Probation Interviews & Routine Traffic Stops (i.e., not custodial)

d) Waiver i) Voluntary ii) Intelligent iii) NOTE: Where ( says nothing or shrugs his shoulders, NO WAIVER



e) Fifth Amendment “Right to Counsel” i) During interrogation, ( asserts right to terminate the interrogation and requests attorney ii) Once asserted, police cannot reinitiate interrogation without presence of the attorney iii) Covers any topic, not a specific offense iv) NOTE: All other right to counsel claims fall under Sixth Amendment

6) Sixth Amendment Right to Counsel a) Offense specific b) Lawyer needs to be present only if ( is asked about that lawyer’s case

7) Pretrial Identifications

a) Denial of Right to Counsel i) Post-charge lineups and show-ups (one-on-one) give rise to a right to counsel ii) No right to counsel for photographs

b) Denial of Due Process i) Substantial likelihood of misidentification ii) Unnecessarily suggestive

c) Remedy i) Exclude any in-court identifications ii) Exception: Independent source—where 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) Right to Unbiased Judge i) No financial interest in the outcome ii) No actual malice toward the ( (i.e., “next time I see you, you’re getting the max” is not malice)

b) Right to Jury Trial i) Whenever maximum authorized sentence exceeds 6 months = right to jury trial ii) Up to and including 6 months = no right to jury trial iii) Sum of sentences for criminal contempt exceeds 6 months = right to jury trial

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 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) Ineffective Assistance of Counsel i) Deficient performance by counsel ii) But for such deficiency. The results of the proceeding would’ve been different iii) Must be a colorable argument that ( is NOT guilty; otherwise DENY it

11) Guilty Pleas & Plea Bargaining

i) Guilty Pleas and Plea Bargaining 1) Supreme Court will not disturb guilty pleas after sentencing 2) Plea bargains are evaluated under contract theory

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) Exceptions Permitting Retrial i) Jury cannot agree on verdict ii) Mistrials for manifest necessity iii) Retrial after successful appeal is not DJ iv) Breach of agreed-upon plea bargain by ( 1) Plea and sentence is vacated 2) Original charges reinstated



c) “Same Offense” i) Two crimes do not equal the same offense if each crime requires proof of an additional element that the other does not require ii) Lesser Included Offenses 1) Jeopardy for greater offense bars retrial for lesser offense 2) Jeopardy for lesser offense bars retrial for greater offense unless a) ( charged with battery b) Victim dies c) ( can be retried for murder

d) Separate Sovereigns i) Double jeopardy does not apply if tried for same crime in different states, federal JD and state JD ii) Jeopardy DOES apply for state and locality

14) Fifth Amendment Compelled Testimony

a) Standard i) Anybody, Any case, and Under oath ii) Response might tend to incriminate iii) Civil cases—must 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) Prosecutor’s 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 can’t 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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