NextGen Bar Exam Criminal Law and Constitutional Criminal Procedure Flashcards

24 sample cards from the Criminal Law and Constitutional Criminal Procedure deck

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

1. When does mistake of fact serve as a defense, by type of crime?

   For specific-intent crimes, any honest mistake (even unreasonable) negating intent is a defense. For general-intent and malice crimes, only a reasonable mistake is a defense. For strict-liability crimes, mistake of fact is never a defense.

2. State the general rule on mistake of law and its narrow exceptions.

   Ignorance or mistake of law is generally NOT a defense. Exceptions: (1) the statute defining the offense makes knowledge of the law an element, (2) reasonable reliance on an official statement of law later found erroneous, (3) the law was not published/reasonably available, or (4) the mistake negates a specific-intent element.

3. State the two-part test for the entrapment defense (subjective/majority view).

   Entrapment exists when (1) the criminal design originated with law enforcement (government inducement), and (2) the defendant was not predisposed to commit the crime before government contact. Merely providing the opportunity to commit a crime is not entrapment.

4. When does a search or seizure implicate the Fourth Amendment, and what is the threshold test?

   The Fourth Amendment applies only to government conduct. A 'search' occurs when government action intrudes on a reasonable expectation of privacy (Katz: subjective expectation society recognizes as reasonable) or physically trespasses on a constitutionally protected area (Jones) to obtain information.

5. 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 or affirmation, and (3) describe with particularity the place to be searched and items/persons to be seized.

6. List the major recognized exceptions to the warrant requirement.

   ESCAPIST: (E)xigent circumstances/hot pursuit, (S)earch incident to lawful arrest, (C)onsent, (A)utomobile, (P)lain view, (I)nventory, (S)top and frisk (Terry), (T)errorism/special needs. Each still requires its own justification (e.g., probable cause or reasonable suspicion).

7. 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 weapons and evidence. 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.

8. What are the requirements of the automobile exception?

   Police with probable cause to believe a lawfully stopped vehicle contains contraband or evidence of a crime may search the entire vehicle, including the trunk and any container (belonging to driver or passenger) that could hold the item — without a warrant.

9. State the elements of the plain view exception.

   Police may seize an item without a warrant if (1) they are lawfully present at the location from which the item is viewed, (2) the item is in plain view, and (3) its incriminating nature is immediately apparent (probable cause).

10. What are the requirements for valid consent to a warrantless search?

    Consent must be voluntary and intelligent (not coerced); police need not warn of the right to refuse. Any person with actual or apparent authority over the area may consent. A physically present co-occupant's express refusal overrides another occupant's consent (Randolph).

11. State the exclusionary rule and the fruit of the poisonous tree doctrine.

    The exclusionary rule bars admission, in the prosecution's case-in-chief, of evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments. The fruit of the poisonous tree doctrine extends exclusion to evidence derived from the original illegality.

12. What are the main exceptions/limitations to the exclusionary rule (ways to admit tainted evidence)?

    Independent source, inevitable discovery, attenuation (intervening acts dissipate the taint), and the good-faith reliance on a defective warrant or law. The rule also does not apply to grand juries, civil cases, parole hearings, or impeachment of the defendant's testimony.

13. What level of suspicion is required for an arrest versus a Terry stop?

    An arrest (a seizure of the person taken into custody) requires probable cause. A brief investigatory detention (Terry stop) requires only reasonable, articulable suspicion of criminal activity; a frisk requires reasonable suspicion the person is armed and dangerous.

14. When does an arrest require a warrant?

    Police generally need no warrant to arrest in a public place if they have probable cause, even for a misdemeanor committed in their presence. But a nonconsensual arrest inside the suspect's own home requires an arrest warrant (absent exigent circumstances or consent).

15. When are Miranda warnings required, and what must they convey?

    Miranda warnings are required before custodial interrogation by police. The suspect must be told: the right to remain silent, that anything said can be used against him, the right to an attorney, and that an attorney will be appointed if he cannot afford one.

16. What constitutes 'custody' and 'interrogation' for Miranda purposes?

    Custody = a reasonable person would not feel free to leave and the environment presents the same coercive pressures as a formal arrest. Interrogation = express questioning or its functional equivalent — any words/conduct police should know are reasonably likely to elicit an incriminating response.

17. How does invoking the right to silence differ from invoking the right to counsel under Miranda?

    Invocations must be unambiguous. If the suspect invokes the right to remain silent, police must scrupulously honor it but may re-approach about a different crime after a break. If the suspect invokes the right to counsel, all interrogation must cease on all matters until counsel is present or the suspect reinitiates (Edwards).

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

    It attaches at the initiation of formal adversarial judicial proceedings (formal charge, indictment, arraignment, or preliminary hearing). It is offense-specific — it applies only to the charged offense, so police may question the suspect about unrelated, uncharged crimes.

19. Contrast the Fifth Amendment (Miranda) right to counsel with the Sixth Amendment right to counsel.

    Fifth Amendment counsel attaches only during custodial interrogation, is not offense-specific (bars all questioning once invoked), and must be invoked. Sixth Amendment counsel attaches at formal proceedings regardless of custody/interrogation, is offense-specific, and applies to all critical stages of prosecution.

20. When is a pretrial lineup or showup a 'critical stage' triggering the right to counsel?

    A post-charge corporeal identification (live lineup or showup) is a critical stage requiring counsel under the Sixth Amendment. There is NO right to counsel at photographic identifications or at the taking of physical evidence (fingerprints, handwriting) — or at pre-charge lineups.

21. What is the due process standard for challenging a pretrial identification?

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

22. What are a criminal defendant's core constitutional trial rights?

    Right to a public trial, to an impartial jury (for offenses with possible imprisonment over six months), to confront witnesses (Confrontation Clause/cross-examination), to compulsory process for obtaining witnesses, to be present, to effective assistance of counsel, and to proof beyond a reasonable doubt on every element.

23. State the two-prong Strickland test for ineffective assistance of counsel.

    (1) Deficient performance — counsel's representation fell below an objective standard of reasonableness; and (2) prejudice — a reasonable probability that, but for the deficiency, the result of the proceeding would have been different. Both prongs must be shown.

24. What does the Double Jeopardy Clause protect against, and when does jeopardy attach?

    It protects against a second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same offense. Jeopardy attaches in a jury trial when the jury is sworn, and in a bench trial when the first witness is sworn. The Blockburger 'same elements' test defines 'same offense.'

What this deck covers

Criminal Law and Constitutional Criminal Procedure flashcards FAQ