California Bar Examination Criminal Law and Criminal Procedure Flashcards

24 sample cards from the Criminal Law and Criminal Procedure deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. State the requirements for non-deadly and deadly self-defense.

   Non-deadly force: reasonable belief of imminent unlawful force, proportional response. Deadly force: reasonable belief of imminent death or serious bodily harm. The aggressor generally may not claim self-defense unless he withdraws or the victim escalates.

2. What is the duty to retreat and the 'castle' exception?

   Majority/modern (stand-your-ground) rule: no duty to retreat before using deadly force. Minority rule: must retreat if safely possible before using deadly force, but there is no duty to retreat in one's own home (castle doctrine).

3. State the elements of the necessity defense and how it differs from duress.

   Necessity: defendant reasonably believed the crime was necessary to avoid a greater imminent harm caused by NATURAL forces, with no reasonable alternative. Duress involves a human threat of harm. Necessity is generally unavailable for homicide.

4. State the elements of the duress defense.

   Defendant committed the crime because of another person's threat of imminent death or serious bodily harm to him or a family member, and the threat created a reasonable fear. Duress is NOT a defense to intentional murder.

5. State the four insanity tests.

   (1) M'Naghten: disease of the mind so defendant did not know the nature of the act OR did not know it was wrong. (2) Irresistible Impulse: could not control conduct/conform to law. (3) Durham: crime was the product of mental illness. (4) MPC: lacked substantial capacity to appreciate criminality or conform conduct.

6. What is diminished capacity and how does it differ from insanity?

   Diminished capacity allows evidence of a mental defect (short of insanity) to show the defendant could not form the requisite mens rea. Most jurisdictions limit it to specific-intent crimes. Unlike insanity, it is not a complete excuse—it negates an element.

7. Distinguish the effects of voluntary versus involuntary intoxication.

   Voluntary intoxication: a defense ONLY to specific-intent crimes (if it negates the intent); not a defense to general-intent, malice, or strict-liability crimes. Involuntary intoxication (unknowing/coerced) is treated like insanity and can be a defense to any crime.

8. How does mistake of fact operate as a defense across the intent categories?

   Specific-intent crimes: ANY honest mistake (even unreasonable) negating intent is a defense. General-intent and malice crimes: only a REASONABLE mistake is a defense. Strict-liability crimes: mistake of fact is NEVER a defense.

9. When is mistake or ignorance of the law a defense?

   Generally NEVER a defense. Narrow exceptions: when the statute makes knowledge of the law an element; reasonable reliance on an official statement of law (statute later overturned, court decision, or official interpretation); or lack of fair notice (unpublished law).

10. State the two tests (and required predisposition element) for the entrapment defense.

    Subjective test (majority/federal): (1) the criminal design originated with law enforcement AND (2) the defendant was not predisposed to commit the crime. Objective test (minority): the police conduct would induce an ordinarily law-abiding person to commit the crime.

11. What must a defendant show to invoke Fourth Amendment protection, and when does it apply?

    The Fourth Amendment (applied to states via the 14th) protects against unreasonable searches/seizures by GOVERNMENT actors. The defendant must have standing—a reasonable expectation of privacy in the place/item searched (own home, overnight guest, etc.).

12. What are the requirements for a valid search warrant?

    It must be (1) issued by a neutral and detached magistrate, (2) based on probable cause established by oath/affidavit, and (3) particularly describe the place to be searched and items to be seized. Reliability of informant tips is judged by the totality of the circumstances.

13. List the major exceptions to the warrant requirement.

    ESCAPIST: Exigent circumstances (hot pursuit/evanescent evidence), Search incident to lawful arrest, Consent, Automobile (probable cause), Plain view, Inventory/administrative, Stop-and-frisk (Terry). Each has its own scope limits.

14. What is the scope of a search incident to a lawful arrest, including in a vehicle?

    Officers may search the arrestee's person and the area within his immediate control (wingspan). For a vehicle (Gant), they may search the passenger compartment only if the arrestee is unsecured and within reach, or it is reasonable to believe evidence of the crime of arrest is inside.

15. State the requirements for a Terry stop and frisk.

    Stop: reasonable suspicion (articulable facts) of criminal activity. Frisk: reasonable suspicion the person is armed and dangerous; limited to a pat-down of outer clothing for weapons. Items felt to be contraband (plain feel) may be seized.

16. What is the exclusionary rule and the fruit of the poisonous tree doctrine, including its exceptions?

    Evidence obtained from a constitutional violation, and evidence derived from it (fruit), is inadmissible in the prosecution's case-in-chief. Exceptions: independent source, inevitable discovery, attenuation of the taint, and the good-faith reliance on a facially valid warrant.

17. State the requirements and key rules for Miranda warnings under the Fifth Amendment.

    Before custodial interrogation, police must warn of: right to remain silent, anything said may be used against you, right to an attorney, and right to appointed counsel. Required only when the suspect is in custody AND subject to interrogation by a known agent of the state.

18. How must a suspect invoke, and how can police obtain a waiver of, Miranda rights?

    Invocation must be unambiguous. Invoking the right to counsel halts all interrogation until counsel is present (or 14 days after release from custody). Waiver must be knowing, voluntary, and intelligent. Mere silence is not invocation or waiver.

19. How does the Sixth Amendment right to counsel differ from the Fifth Amendment Miranda right to counsel?

    Sixth Amendment attaches at the start of adversarial judicial proceedings (formal charge/arraignment) and is OFFENSE-SPECIFIC. Fifth Amendment (Miranda) is triggered by custodial interrogation and is NOT offense-specific. The Sixth applies to all critical stages.

20. At which pretrial stages does the Sixth Amendment right to counsel apply (critical stages)?

    Post-charge lineups, post-indictment interrogation, arraignment, preliminary hearings, plea negotiations, trial, sentencing, and first appeal as of right. It does NOT apply to photo arrays, pre-charge lineups, blood/handwriting samples, or discretionary appeals.

21. What is the test for a due process violation in identification procedures, and the remedy?

    An identification violates due process if the police procedure was unnecessarily suggestive AND created a substantial likelihood of misidentification (judged by reliability factors). Remedy: exclusion of the identification unless an independent source exists for an in-court ID.

22. What three things must a court ensure before accepting a guilty plea?

    The plea must be voluntary and intelligent: the judge must address the defendant on the record to ensure he understands (1) the nature of the charge, (2) the maximum and any mandatory minimum penalty, and (3) the rights waived (jury trial, confrontation, self-incrimination).

23. What are a defendant's rights regarding bail and the preliminary hearing?

    Bail issues are immediately appealable; bail set higher than necessary to ensure appearance is reviewable. A preliminary hearing to determine probable cause is required unless there has been a grand jury indictment or other determination of probable cause (e.g., Gerstein hearing).

24. What are the Sixth Amendment limits on judicial fact-finding at sentencing (Apprendi/Blakely)?

    Other than the fact of a prior conviction, any fact (other than those admitted by the defendant) that increases the penalty beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. This includes facts raising a mandatory minimum (Alleyne).

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