Criminal Law Bar Exam, Criminal Procedure - MBE - Bar Exam Correct 100%

Specific and General Intent Examples - ANSWER D is charged with assault with intent to commit murder, assault is usually only general intent while intent to murder is a specific intent. Specific intent may be nullified by an honest but unreasonable mistake of fact, voluntary intoxication. Only an honest and reasonable mistake of fact will nullify general intent. Fruit of the Poisonous Tree DOES NOT apply to ______________ unless the police act in ________________ in obtaining such information - ANSWER miranda violations; bad faith Malice - ANSWER Essential mens rea element for murder at common law. 3 ways to break the chain between an original, unlawful police action and some supposedly derived piece of evidence: - ANSWER 1. independent source 2. inevitable discovery 3. intervening acts of free will Express Malice to kill - ANSWER D intended to kill another human. D can act with purpose to kill another, with knowledge her conduct would kill another, or with intent to inflict grievous bodily harm on the victim. On appeal, the court will apply the _____________________________ test. - ANSWER harmless error test Implied Malice to kill - ANSWER Where D caused a death as a result of extreme recklessness or criminal negligence that manifested a wanton disregard for human life. Killing may be unintentional. Malice is also implied for felony murder. Under the harmless error test, a conviction will ___________________ if the conviction would have resulted despite the improper evidence. - ANSWER be upheld Exam Tip for Murder - ANSWER Any unlawful killing + malice = murder, even if D didn't set out to kill someone or didn't even expect his conduct would cause death. 4th amd. protects CITIZENS from __________________________ and __________________. - ANSWER unreasonable searches and seizures. Strict Liability Crimes - ANSWER Only require the act and no mens rea. i.e. statutory rape. an arrest must be based on _____________________________. - ANSWER probable cause Transferred Intent - ANSWER Where D intends to produce a criminal result against one party but inadvertently harms another. Intent transfers to the unintended victim, not a defense that D harmed the wrong person. arrest warrants are generally not required before arresting someone in a ___________________________________. - ANSWER public place Concurrence - ANSWER Needed to prove guilt, have to show the criminal act was set in motion by the requisite criminal state of mind and that mens rea and criminal act concurred precisely in time. i.e. D breaks into house to escape rain, sees valuable item and decides to steal it. Not burglary because breaking and entering was not actuated by the requisite mens rea- which occurred later. a non-emergency arrest of an individual _____________________________ DOES require an arrest warrant. - ANSWER in her home/ at home Legal Cause - ANSWER D's conduct must be both the actual and proximate cause of the specified criminal result. Actual cause + proximate cause = legal cause. the police need probable cause to arrest you and compel you to come to the police station either for ____________ or ___________. - ANSWER fingerprinting OR interrogation the police have the authority to briefly detain a person even if they lack probable cause to arrest. In order to make such a stop, the police must have __________________________________ of criminal activity - ANSWER reasonable suspicion supported by articulable facts Actual Cause Tests - ANSWER 1. The criminal result would not have occurred "but for" D's act. 2. If there were multiple causes, D's act was a "substantial factor" in causing the criminal result. 3. D "accelerated" an inevitable result. i.e. D1 stabs victim, D2 then shoots him in the head. Proximate Cause - ANSWER Established when the harm produced by D was objectively foreseeable. whether the police have reasonable suspicion depends on: - ANSWER the totality of the circumstances Superseding Cause - ANSWER Breaks the causal connection to relieve D of liability. Have to see if the intervening cause was dependent or responsive to D's initial cause, or was independent or a mere coincidence. The police may stop a car if they have at least _____________________ that the law has been violated. - ANSWER reasonable suspicion Criminal Homicide - ANSWER The unlawful killing of a human being caused by another. Unlawful when there is no legal justification or is the result of a criminal state of mind. Rule about checkpoint roadblocks - ANSWER must be neutrally applied Murder - ANSWER The unlawful killing of a human being with malice. At CL, death of a human being requires the victim had been born alive, though some states have extended to killing of a viable fetus. Death must be caused by someone other than the victim. During routine traffic stops, a ________________ is not a search so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries. - ANSWER Sniff Acceleration of Death - ANSWER Killing someone who is already dying is still considered murder, because of speeding up their death. True or false? During a traffic stop, a dog "alert" to the presence of drugs can form the basis for probable cause to search? - ANSWER True Year and a Day Rule - ANSWER At CL, if victim died more than a year and a day after D's act, treated the death as unforeseeable and D was not the legal cause of death. Most states have eliminated this rule. Can the police use a drug sniffing dog outside the house of a suspected drug dealer? - ANSWER NO 4 Ways D can be Liable even without personally killing the victim - ANSWER 1. D is an accomplice to the actual killer; 2. Reasonably foreseeable result of a conspiracy is a homicide, which is committed in furtherance of the conspiracy; 3. Where both a 3P and D acting together is a substantial factor in the victim's death; 4. Felony murder. Steps for model search and seizure essay - ANSWER 1. Is there governmental conduct? 2. Is there a reasonable expectation of privacy? 3. Did the Police have a valid search warrant? 4. If the warrant is not valid, does an officer's good faith defense save the defective search warrant? 5. If a warrant is invalid and cannot be saved by the good faith defense or if the police never had a warrant at all, is there an exception to the warrant requirement? Express versus Implied Malice for Murder - ANSWER If D engaged in conduct he expected would cause death, malice is express. If D didn't expect the conduct to cause death but it resulted because of creation of extreme risk, malice is implied. governmental conduct for purposes of the 4th amd. - ANSWER 1. publicly paid police (on or off duty) 2. any private individual acting at the direction of the public police 3. privately paid police that are deputized with the power to arrest. Intent to Kill - ANSWER D acts with purpose to kill another human, or knowledge his conduct will kill. 1st degree murder in non common law fact pattern. privately paid police (examples) - ANSWER 1. store security guards 2. subdivision police 3. campus police Automatic categories of standing - ANSWER 1. If you own the premises searched; you always have standing 2. you live on the premises searched, whether you have an ownership interest or not 3. overnight guests have standing to object to the legality of the search of the place they are staying. Deadly Weapons Doctrine - ANSWER Intent to kill is inferred when D uses an instrument designed to kill or uses in a manner likely to kill or inflict serious bodily harm. i.e. deliberately shooting gun, swinging bat at victim's head. 1st degree murder in non common law fact pattern. Intent to Cause Serious Bodily Harm - ANSWER Still express malice, even though D did not intend to kill. Can arise from a conscious desire or substantial certainty that D's actions will result in victim's injury. i.e. Driving over victim's legs to scam insurance, but victim dies instead. 2nd Degree murder in non common law fact pattern. If you ___________ the premises searched, you always have standing to object to the search - ANSWER own Depraved Heart Murder - ANSWER Unintentional killing resulting from reckless / grossly neg conduct that creates an extreme risk to others and demonstrates wanton indifference to human life. Malice is implied. i.e. encouraging someone to play Russian Roulette, having a highly dangerous animal in a residential area. 2nd Degree Murder in non common law jurisdiction fact pattern. If you _________the premises searched, whether you have an ownership interest or not, you have a right to object to the search. - ANSWER live on Felony Murder - ANSWER Malice is automatically established by causing death in commission or attempted commission of an inherently dangerous felony. First Degree Murder in non common law fact pattern. ________________________________ have standing to object to the legality of the search of the place they are staying - ANSWER overnight guests Collateral Felony Test - ANSWER Majority requires the killing to be independent of the felony. i.e. if primary purpose is serious physical harm, not independent and fails the collateral felony test. Includes manslaughter, aggravated battery, aggravated assault. If you own the property seized, you have standing to object to the search ONLY IF ___________________ - ANSWER you have a reasonable expectation of privacy in the item or area searched. You have no expectation of privacy, and no standing for anything that _________________________ - ANSWER you hold out to the public everyday Inherently Dangerous Felony - ANSWER B.A.R.R.K. Burglary, arson, rape, robbery, kidnapping. Satisfied when inevitable secondary effect of the felony is serious risk to human life. Felony Murder: Context and Abstract Jurisdictions - ANSWER Majority requires the felony to be dangerous in all contexts, minority considers the manner of commission to determine inherent dangerousness. i.e. D pretends to be a doctor and cure victim's cancer, who dies of cancer later. Practicing medicine without a license is a felony. D can be charged with felony murder in a context jurisdiction, but in an abstract jurisdiction this would not be the right type of felony because not dangerous to human life in all situations. No right to privacy in which things: - ANSWER 1. the sound of your voice 2. the style of your handwriting 3. the paint on the outside of your car 4. account records held by the bank 5. monitoring the location of your car on a public street or in your driveway. 6. anything that can be seen across the open fields. 7. anything that can be seen from flying over in the public airspace 8. the odors emanating from your luggage or car 9. your garbage set out on the curb for collection. Right Connection to the Felony - ANSWER The death must be a foreseeable outgrowth of the felony. Most courts are liberal in applying foreseeability requirement, only deaths totally unrelated to the felony and occur as mere coincidence are excluded. Installation of a GPS device on a suspect's car constitutes a ______________________ within the ______________ amendment. - ANSWER search; 4th Felony Murder: starting and ending time - ANSWER Felony starts when D could be convicted of attempting the underlying felony, terminates when the felon has reached a place of temporary safety, i.e. no longer in immediate flight from the felony. two requirements for a facially valid search warrant - ANSWER 1. probable cause 2. particularity Co-Felon Liability - ANSWER When victim is killed at hand of one felon or another person. probable cause standard - ANSWER a fair probability that contraband or evidence of a crime will be found in the area searched Co-Felon Liability: Agency Rule - ANSWER Majority Rule: Felony murder liability is limited to killings committed by the hand of a co-felon. Some jurisdictions still give liability when a non-felon kills another non-felon (victim aims at felon but misses and kills officer instead.) particularity - ANSWER the warrant must state with particularity the place to be searched and the things to be seized if an officer's affidavit or probable cause is based on informant information, its sufficiency is determined by _________________________________________________________________________. - ANSWER the totality of the circumstances Common Law Rule for Co-Felon Liability - ANSWER All felons are liable for any homicide that occurred as a result of the felony. i.e. Homeowner trips during burglary and dies. Non Violent Felon Exception - ANSWER Minority of CL juris exempt a non-violent co-felon from felony murder. i.e. one who was not armed and did not participate in or have any knowledge of the co-felon's intentions. an informant's __________________________________ and _________________________ are relevant factors in making the determination of sufficiency of a search warrant. - ANSWER credibility; basis of knowledge Deserving Victim Exception - ANSWER Minority of CL juris also exempt a killing of a co-felon from felony murder. may a valid warrant be based on information from an anonymous informant? - ANSWER Yes, in part. Redline Limitation - ANSWER Many CL juris limit the agency theory for felony murder, where there is no liability for killings at the hand of a non-felon when the killing is justifiable. i.e. bank robber's accomplice is justifiably killed by the police. No Knock entry is permitted in the execution of a search warrant if: - ANSWER 1. knocking would be dangerous or futile, or would inhibit the investigation (destruction of evidence). Murder by Degrees - ANSWER Based on belief that not all murders are equally evil. Although all murders require malice. an officer's _________ on a search warrant overcomes defects with the probable cause or particularity requirements. - ANSWER good faith reliance First Degree Murder - ANSWER Most egregious, additional proof to establish under CL was proof of D's decision to kill was both premeditated and deliberate to elevate from 2nd degree murder. four exceptions to officer's good faith reliance on a defective warrant - ANSWER 1. the affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied on it. 2. the affidavit is so lacking in particularity that no reasonable officer would have relief on it. 3. the police officer or prosecutor lied to or mislead the magistrate when seeking the warrant 4. if the magistrate is biased, and therefore has wholly abandoned his or her neutrality Premeditate - ANSWER Quantity of thought. D must think about the act of killing before doing it. At CL, possible to premeditate in the time it takes for your eye to twinkle (immediate). Today, some amount of time is necessary but can be extremely brief. exceptions to the warrant requirement - ANSWER 1. search incident to arrest 2. community care taking exception 3. automobile exception 4. plain view 5. consent 6. stop and frisk 7. evanescent evidence 8. Deliberate - ANSWER Quality of thought. D must make deliberate choice to kill, which requires rational thought. Voluntary intoxication or diminished capacity may disable ability to think rationally. Search incident to arrest - ANSWER 1. arrest must be lawful, if arrest is unlawful -- search is unlawful 2. the arrest and search must be contemporaneous in TIME and PLACE 3. the person may be searched and the areas within the person's wingspan. Jurisdiction differences: premeditated and deliberate - ANSWER Most juris require some degree of reflection. Some say this can be extremely brief, like the time it takes to pull a trigger. search incident to arrest - automobiles - ANSWER the police may search the interior of the auto incident to arrest ONLY IF: 1. the arrestee is unsecured and still may gain access to the interior of the vehicle; OR 2. the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle. Other ways to elevate 2nd degree murder to 1st degree - ANSWER Felony murder, murder by poison, terrorism, torture, murder of a special victim i.e. child or police officer. Look at if the murder had malice and some other ingredient to elevate. Balancing test for technological searches? - ANSWER court balances the degree to which the search incident to arrest intrudes upon a person's privacy against the degree to which the search is needed to promote legitimate government interests. May police search the contents of a cell phone without a warrant? - ANSWER NO Second Degree Murder - ANSWER Any killing with malice but without the additional element for 1st degree. i.e. if juris says 1st degree is only with premeditation and deliberation, any murder committed without purpose to kill is 2nd degree. Voluntary Manslaughter - ANSWER Intentional killing mitigated by adequate provocation or other circums negating malice aforethought. Heat of passion killing, because sudden heat of passion strips malice off the intent to kill. May the police search the outside of a cell phone without a warrant? - ANSWER YES To trigger sudden heat of passion - ANSWER Needs adequate provocation, measured objectively. Provocation that would lead a reasonable person to lose self control and fly into a sudden homicidal rage. i.e. D was victim of serious battery, threat of deadly force, spouse engaged in sex with another, serious physical injury of family member. Automobile Exception - ANSWER 1. in order for the police to search anything or anybody and fall under the automobile exception they must have PROBABLE CAUSE. 2. If, BUT ONLY IF, before searching ANYTHING or anybody the police have probable cause then they can search the ENTIRE CAR. (This includes the entire interior compartment, and the trunk. Moreover, if there is probable cause, the police may open (without a warrant) any package, luggage, or other contained which could REASONABLY CONTAIN THE ITEM they had probable cause to look for whether that is owned by the passenger or the driver. Mere words: heat of passion - ANSWER Mere words are not enough to be adequate provocation, and cannot get rid of malice. The probable cause necessary to justify the warrant-less search of an auto under the automobile exception CAN arise AFTER THE CAR IS STOPPED, but the probable cause must arise before anything or anyone is searched. True or False? - ANSWER True Causal Connection for heat of passion - ANSWER Must be a causal connection between provocation and the killing. i.e. hit man finds man in bed with wife, was going to kill the man anyway so this is not voluntary manslaughter. Plain View Exception - ANSWER 1. To constitute a valid plain view seizure, the police officer must be legitimately present at the location where he or she does the viewing of the item seized. 2. it must be immediately apparent that the item is contraband or fruit of a crime.