Uniform Bar Examination (UBE) Criminal Law and Procedure Flashcards

24 sample cards from the Criminal Law and Procedure deck

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

1. What are the key limitations on felony murder liability?

   The underlying felony must be independent of the killing, the death must be foreseeable, the death must occur during the felony (before reaching a place of temporary safety), and (majority/agency theory) the killing is not of a co-felon by police/victims.

2. Distinguish first-degree from second-degree murder.

   First-degree: a deliberate and premeditated killing, or one falling within a felony-murder statute. Second-degree: a default category for all other common-law murders (e.g., depraved-heart, intent-to-cause-serious-harm).

3. Distinguish battery from assault.

   Battery: an unlawful application of force to another causing harmful or offensive contact (general intent). Assault: either an attempt to commit a battery or intentionally placing another in reasonable apprehension of imminent harm.

4. Define common-law rape.

   Unlawful sexual intercourse with a woman without her consent, accomplished by force, threat of force, or where she is incapable of consenting (e.g., unconscious or fraudulently induced as to the act). Slightest penetration completes the crime.

5. Define kidnapping and false imprisonment.

   False imprisonment: unlawful confinement of a person without consent. Kidnapping: false imprisonment plus either movement (asportation) of the victim or concealment in a secret place.

6. Define common-law larceny.

   The trespassory taking and carrying away (asportation) of the personal property of another with the intent to permanently deprive at the time of taking (intent must coincide with the taking).

7. How does embezzlement differ from larceny?

   Embezzlement is the fraudulent conversion of property by someone already in lawful possession of it. In larceny, the defendant takes property from another's possession; in embezzlement, lawful possession precedes the conversion.

8. How does larceny by trick differ from false pretenses?

   Larceny by trick: defendant obtains possession (not title) by fraud. False pretenses: defendant obtains TITLE to property through a knowing false representation of a material fact made with intent to defraud.

9. Define robbery and what distinguishes it from larceny.

   Robbery is larceny from the person or presence of the victim accomplished by force or intimidation (threat of imminent harm). The force/threat element distinguishes it from larceny.

10. Distinguish robbery from extortion (blackmail).

    Robbery requires taking by force/threat of imminent harm from the victim's presence. Extortion involves obtaining property through threats of future harm and need not be in the victim's presence.

11. Define common-law burglary and its elements.

    The breaking and entering of the dwelling of another at nighttime with the intent to commit a felony therein (the felonious intent must exist at the time of entry).

12. Define common-law arson.

    The malicious burning of the dwelling of another. Malice means intent or reckless disregard; there must be some charring (mere scorching or smoke damage is insufficient).

13. What are the elements of receiving stolen property?

    Receiving control of stolen property, known to be stolen at the time of receipt, with the intent to permanently deprive the owner.

14. When does the Fourth Amendment apply, and what is required for a defendant to challenge a search?

    It applies to governmental conduct that intrudes on a reasonable expectation of privacy. To challenge, a defendant must have standing—a personal, legitimate expectation of privacy in the place or item searched.

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

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

16. 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 special needs (e.g., inventory, administrative searches). (Mnemonic: ESCAPIST.)

17. 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 vehicles, only if the arrestee is unsecured and within reach, or police reasonably believe evidence of the crime of arrest is inside (Gant).

18. State the standard and scope of a Terry stop and frisk.

    An officer with reasonable suspicion (articulable facts) of criminal activity may briefly detain a person; if the officer reasonably suspects the person is armed and dangerous, a frisk (pat-down of outer clothing for weapons) is permitted.

19. What triggers Miranda warnings, and what must they convey?

    Custodial interrogation by police. Warnings: the right to remain silent, that statements can be used against you, the right to an attorney, and that one will be appointed if you cannot afford one.

20. What is required to invoke and to waive Miranda rights?

    Invocation must be unambiguous (explicitly stating the right to silence or to counsel). Waiver must be knowing, intelligent, and voluntary; silence alone is not a waiver, but answering questions after warnings can constitute an implied waiver.

21. Compare the Fifth Amendment (Miranda) and Sixth Amendment rights to counsel.

    Fifth Amendment counsel right is triggered by custodial interrogation and is not offense-specific. Sixth Amendment counsel right attaches at the initiation of formal adversarial proceedings (charges) and is offense-specific.

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

    Evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments is inadmissible, as is derivative evidence (fruit) obtained from the illegality.

23. What are the exceptions that limit the exclusionary rule / break the chain from the poisonous tree?

    Independent source, inevitable discovery, attenuation (intervening acts of free will), and the good-faith reliance on a defective warrant or invalid law. Illegal evidence may also be used to impeach the defendant's testimony.

24. List the key constitutional rights a defendant has at and after trial.

    Right to a speedy and public trial, an impartial jury (12 for serious offenses, unanimous verdict for criminal cases), confrontation of witnesses, counsel, proof beyond a reasonable doubt, protection against double jeopardy, and the right to appeal/effective assistance of counsel.

What this deck covers

Criminal Law and Procedure flashcards FAQ