Juris Doctor (JD) 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. Define common-law burglary.

   The breaking and entering of the dwelling of another at nighttime with the intent to commit a felony therein.

2. Define common-law arson.

   The malicious burning of the dwelling of another; modern statutes extend it to other structures and require some charring (not just scorching/smoke).

3. What are the elements of self-defense, and when may deadly force be used?

   A person may use reasonable force to defend against an imminent unlawful threat. Deadly force is permitted only when facing an imminent threat of death or serious bodily harm; some jurisdictions impose a duty to retreat before using deadly force.

4. How does the M'Naghten test for insanity work?

   A defendant is not guilty if, due to a mental disease or defect, he did not know the nature and quality of his act OR did not know that the act was wrong.

5. Compare the M'Naghten, Irresistible Impulse, Durham, and MPC/ALI insanity tests.

   M'Naghten: didn't know nature or wrongfulness. Irresistible Impulse: couldn't control conduct. Durham: act was product of mental illness. MPC: lacked substantial capacity to appreciate wrongfulness OR conform conduct to law.

6. How do voluntary and involuntary intoxication function as defenses?

   Voluntary intoxication is a defense only to specific intent crimes (negating the required intent); involuntary intoxication is a defense to all crimes if it negates an element or amounts to insanity.

7. What are the elements of duress as a defense, and to what crime does it not apply?

   Reasonable belief of an imminent threat of death or serious bodily harm to oneself or another that coerces the crime. Duress is not a defense to intentional murder.

8. When does mistake of fact serve as a defense?

   A mistake of fact is a defense if it negates the required mens rea. For specific intent crimes any honest mistake suffices; for general intent/malice crimes the mistake must be reasonable; it is no defense to strict liability crimes.

9. What is entrapment, and what is the key element under the majority subjective test?

   Entrapment occurs when the criminal design originates with law enforcement and the defendant was not predisposed to commit the crime. The majority subjective test focuses on the defendant's predisposition.

10. What does the Fourth Amendment protect against, and what is required for it to apply?

    It protects against unreasonable searches and seizures by the government. It applies only to government conduct that intrudes on a person's reasonable expectation of privacy (Katz test).

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

    It must be issued by a neutral and detached magistrate, based on probable cause established under oath, and describe with particularity the place to be searched and items to be seized.

12. List the major exceptions to the warrant requirement.

    Search incident to lawful arrest, automobile exception, plain view, consent, stop and frisk (Terry), hot pursuit/exigent circumstances, and evanescent evidence.

13. What is the scope of a search incident to a lawful arrest?

    Police may search the arrestee's person and the area within his immediate control (wingspan). For a vehicle, only if the arrestee is unsecured and within reach OR the vehicle may contain evidence of the crime of arrest (Gant).

14. What does the automobile exception permit?

    With probable cause to believe a vehicle contains contraband or evidence, police may search the entire vehicle and any containers within it that could hold the object of the search, without a warrant.

15. State the exclusionary rule and its primary purpose.

    Evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments is generally inadmissible in the prosecution's case-in-chief. Its purpose is to deter unlawful police conduct.

16. What is the 'fruit of the poisonous tree' doctrine and its exceptions?

    Evidence derived from an unconstitutional search/seizure is also excluded. Exceptions: independent source, inevitable discovery, attenuation (intervening acts of free will), and the good-faith reliance on a defective warrant.

17. What is the difference between an arrest and a Terry stop?

    An arrest requires probable cause that the suspect committed a crime; a Terry stop (detention) requires only reasonable suspicion of criminal activity based on articulable facts and is limited in scope and duration.

18. What justifies a frisk (pat-down) during a Terry stop, and what is its scope?

    Reasonable suspicion that the suspect is armed and dangerous. The frisk is limited to a pat-down of outer clothing for weapons; an item is seizable only if its incriminating nature is immediately apparent (plain feel).

19. When are Miranda warnings required, and what must they include?

    Required before custodial interrogation by police. They must inform the suspect of the right to remain silent, that statements may be used against him, the right to an attorney, and that one will be appointed if he cannot afford one.

20. How does the Fifth Amendment right to counsel differ from a request to remain silent?

    An unambiguous request for counsel requires all interrogation to cease until counsel is present (and bars re-initiation for 14 days after release from custody); invoking silence requires police to scrupulously honor it but they may re-question later after fresh warnings.

21. When does the Sixth Amendment right to counsel attach, and how is it offense-specific?

    It attaches at the initiation of formal adversarial proceedings (formal charge, indictment, arraignment, or preliminary hearing). It is offense-specific, applying only to the charged offense, unlike the Fifth Amendment right.

22. What is the standard for ineffective assistance of counsel under Strickland v. Washington?

    The defendant must show (1) counsel's performance was deficient (fell below an objective standard of reasonableness) and (2) prejudice (a reasonable probability the result would have been different but for the deficiency).

23. When is a pretrial identification (lineup/showup) subject to the Sixth Amendment right to counsel?

    A post-charge lineup or showup is a critical stage requiring counsel's presence. Photo identifications and pre-charge lineups do NOT trigger the right to counsel.

24. What is the due process test for excluding an unreliable pretrial identification?

    An identification is excluded if the procedure was unnecessarily suggestive AND, under the totality of the circumstances, created a substantial likelihood of irreparable misidentification (unreliable).

What this deck covers

Criminal Law and Criminal Procedure flashcards FAQ