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210 Cards in this Set

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State Jurisdiction: in what state can a crime be prosecuted?
(3)
where an ACT that was an ELEMENT of the crime took place

Where result took place.

If crime involved neglect of a duty imposed by the law of the state
What are the 3 essential elements of crime?
1) Act Requirement
2) Mental State
3) Concurrence OF the two
What are culpable acts under the act requirement?
Culpable acts can be either “commissions” (physical acts) or “omissions” (the failure to act).
What are considered commissions or physical acts under the ACT requirement?
All bodily movements provided they are voluntary.
3 requirements for an omission or a failure to ACT to be the basis for criminal liability?
1) legal duty
2) knowledge of the facts giving rise to the duty,
AND
3) ability to help
Under the LEGAL DUTY needed for an OMISSION or a failure to act to be the basis for criminal liability, what are the FIVE WAYS ways in which a legal duty can be created?
1) By statute (e.g., filing tax returns, professionals reporting child abuse)

2) By contract (e.g. babysitter, doctor, lifeguard)

3) By status relationship (e.g. Parent/Child or Spouse/Spouse)

4) By voluntary assumption of care, particularly by assuming responsibility, D stops others from coming to aid of imperil party

5) By creation of the peril
4 common law mental states?
1) SPECIFIC INTENT (When the crime requires not just the desire to do the act, but also the desire to achieve a specific result; jury cannot inferred from doing the act)

2) MALICE ( with reckless disregard of an obvious or high risk that a particular bad result will occur)

3) GENERAL INTENT (the D need only be generally aware of the factors constituting the crime; he need not intend a specific result. Note, the jury can usually infer the general intent simply from the doing of the act)

4) STRICT LIABILITY (When the crime requires simply doing the act; no mental state is needed)
11 common law SPECIFIC INTENT crimes, divided into three categories?
-Crimes against the person
1) Assault
2) First Degree Premeditated Murder (statutory crime)

-Crimes against property
3) Embezzlement - intent to defraud
4) Robbery - intent to permanently deprive other of his interest in property
5) Burglary - intent to commit felony in dwelling of another
6) Larceny - intent to permanently deprive other of his interest in property
7) Larceny by Trick - intent to defraud
8) Forgery - intent to defraud


-Inchoate crimes
9) Solicitation - intent to have the person commit the crime
10) Conspiracy - intent to commit
11) Attempt - intent to complete
2 defenses available only for common law SPECIFIC INTENT crimes?
1) Voluntary intoxication; and
2) Unreasonable Mistake of Fact
What are the two common law malice crimes?

Special Defenses?
1) Murder - unlawful killing with malice aforethought
2) Arson - malicious burning of the dwelling house of another

> no special defenses

ON MBE MURDER MEANS 2ND DEGREE MURDER/CL, NOT A SPECIFIC INTENT CRIME
What are four examples of common law general intent crimes?
1) Battery
2) Forcible Rape
3) False Imprisonment
4) Kidnapping

Note, all crimes against the person.
What are the two types of common law strict liability crimes?
1) Public Welfare Offenses: regulatory or morality offenses that typically carry small penalties (e.g. selling alcohol to a minor; selling contaminated food; corrupting the morals of a minor)
2) Statutory without "knowingly, willingly, etc" in them.
What are the two types of causation needed to satisfy the causation element to prove a crime?
Actual (or but for) causation and proximate (or legal) causation
What is the general rule and exception regarding actual causation in a criminal case?
Under the general rule, a D is an actual cause (the “cause-in-fact”) if the bad result would not have happened but for D’s conduct.

The exception to this general rule is an “accelerating cause” is an actual cause (e.g., X stabs Y, giving Y a fatal wound. Z then shots Y in the head, killing him instantly. Both X and Z are actual causes.)
What is the general rule regarding proximate causation in a criminal case ?
A D is a proximate cause if the bad result is a natural and probable consequence of D’s conduct
How will eggshell victims impact whether or not a D is considered a proximate cause in a criminal case?
D will be considered a proximate cause even if the victim’s preexisting weakness contributed to the bad result
What is the rule regarding the essential element of concurrence and what two kinds of cases is it most frequently an issue?
D must have the required mental state at the same time as he engages in the culpable act.

Larceny and Burglary.
BATTERY
1) BATTERY: unlawful application of force to another resulting in either bodily injury or an offensive touching. (GI).
►Need not be intentional & force need not be applied directly
DEFINITION OF HOMICIDE?

THREE CATEGORIES OF HOMICIDE?
Unlawful killing of a human being.

►MURDER
►VOLUNTARY MANSLAUGHTER
►INVOLUNTARY MANSLAUGHTER
DEFINITION OF MURDER

4 INTENTS OF MURDER
Unlawful killing of a human being with malice aforethought

► “malice aforethought” is satisfied if D has any of the following four mental states:
1) Intent to Kill
2) Intent to inflict serious bodily injury;
3) reckless indifference to an unjustifiably high risk to human life (abandoned and malignant heart/depraved heart murder);
4) intent to commit a felony
What are the two special rules for common law "intent to kill" murder?
1) Deadly Weapon Rule: The intentional use of a deadly weapon creates an inference of an intent to kill

2) Transferred Intent: D intends to harm one V, but accidentally harms a different V instead, D’s intent will transfer from the intended V to the actual V
What is the definition of felony murder?
Felony Murder is any killing caused during the commission of or attempt to commit a felony (very broad).
What are the 5 defenses to felony murder?
1) D is not found guilty of underlying felony

2) felony must be inherently dangerous

3) The felony must be separate from the killing itself (for example, aggravated assault or battery cannot be the underlying crime)

4) The killing must take place during the felony or immediate flight from the felony. (Once the felon(s) reach a place of temporary safety, the felony ends.)

5) death must have been a foreseeable result of the felony

6) Redline view: victim cannot be a co-felon
What is vicarious liability in the context of felony murder?
If one of the co-felons causes the death, all of the other co-felons will be guilty of felony murder, so long as one of the felons is a “proximate cause” of the death.
Definition of Manslaughter?

voluntary manslaughter?
Involuntary manslaughter?
Unlawful killing of a human being without malice

►Voluntary: An intentional killing that would be murder but for the existence of adequate provocation (4 req's)

►Involuntary: committed with CRIMINAL negligence OR during the commission of an unlawful act like misdemeanor or unenumerated felony
Four requirements to satisfy adequate provocation in the context of common law voluntary manslaughter?
1) The provocation must be objectively adequate, which mean it would arouse a sudden intense passion in the mind of a reasonable person

2) D was actually provoked (D needs to be in a state of passion)
3) D did not have time to cool off
4) D did not actually cool off between the provocation and the killing (otherwise, would be revenge)
What are the two types of common law involuntary manslaughter?
1) A killing committed with criminal negligence (Note: do not conflate with tort negligence; criminal negligence is a higher level, a gross deviation of a reasonable standard of care)
2) A killing committed during a crime that doesn’t qualify for felony murder (this is sometimes called “misdemeanor manslaughter”)
What are the three elements and mental state required for common law false imprisonment?
-Elements: 1) The unlawful; 2) Confinement of a person; 3) Without his consent
-Mental State: General Intent
What are the two elements and mental state required for common law kidnapping?
-Elements: 1) False imprisonment; 2) That involves moving V or concealing V in a secret place
i-Mental State: General Intent
►3 elements of rape

►4 situations where consent is lacking
►Elements:
1) Absence of marital relationship
2) unlawful carnal knowledge-- even slightest penetration
3) Without V’s consent;

►CONSENT IS LACKING where:
1) actual force
2) threats great & immediate harm
3) V incapable of consenting (unconscious etc)
4) V fraudulently caused to believe act is not intercourse ( impersonating husband is not rape)
two elements for statutory rape and

what is the required mental state under the majority rule and under the minority/MPC rule?
Carnal knowledge of person under the age of consent.

-Mental State: the majority rule is strict liability,
-if no such answer is available, then reasonable mistake as to age is a defense if D reasonably believed the V was old enough to give effective consent
What is the definition of common law larceny? (6 elements)
1) a taking
2) and carrying away
3) of tangible personal property
4) of another with possession
5) by trespass (without consent/induced by fraud)
6) with intent to permanently deprive that person of her interest in the property

Also note, if D intends to give the property back, the taking is not larceny, unless later changes his mind.
What is common law embezzlement and what is the required mental state?
Embezzlement is unlawful taking with intent to defraud of the personal property of another by a person already in lawful possession of that property i


(note, if D intends to give the exact property back in the exact form, he will not have the intent to defraud)
What is the key difference between embezzlement and larceny?
D must already have lawful possession of the property before a taking can be considered embezzlement; possession involves more than mere custody, requires some authority to exercise some discretion over the property.
What is common law false pretenses?
False pretenses is obtaining title to the personal property of another by an intentional false statement with the intent to defraud.

Note, the “false statement” must be of a past or present event (not a future promise)
What is the key difference between common law larceny and false pretenses?
In larceny, D gets only custody of the property; in false pretenses, D gets title, meaning ownership
How is common law larceny by trick distinguishable from common law false pretenses?
If D obtains only custody as a result of the intentional false statement, the crime is “larceny by trick,” not false pretenses.
What is the required mental state for common law robbery and what are the three elements?
-Mental State: Specific Intent
-Elements: 1) A larceny; 2) from another’s person or presence (some location reasonably close to V, e.g. rooms to a house other than the room in which V is located); 3) by force (any amount of force sufficient to overcome resistance; e.g., snatching a chain off the victim’s neck, snatching a handbag off a woman’s extended arm) or threat of immediate injury

Note, Pickpocketting is not robbery; it’s larceny. Also, note that under modern statutory law, an individual who obtains the property of another through oral or written threats of future harm does not commit robbery; he commits the crime of extortion, which is also called blackmail (e.g., “give me your money, or I’ll break your legs tomorrow!”; “give me your money, or I’ll post those pictures of you on the web!”)
What is common law forgery and what is the required mental state?
Common law forgery is the making or altering a writing so that it is false. The required mental state is intent to defraud.
For the possession offenses, what are the requirements for the act element?
When a statute criminalizes the possession of contraband (e.g., drugs, stolen property, child pornography), “possession” means control for period of time long enough to have an opportunity to terminate possession
For possession offenses, what does "constructive possession" mean?
"Constructive Possession" means that the contraband need not be in D’s actual possession, so long as it is close enough for him to exercise dominion and control over it.
What is the required mental state for possession offenses?
Knowledge (of possession AND of the character of the item possessed)
What are three examples of possession offenses in NY?
1) Drugs: Criminal Possession of a controlled substance
2) Firearms: Criminal Possession of a weapon (Note, the gun must be loaded and operable. Also note that the presence of a gun in a vehicle creates the statutory presumption that all occupants of the vehicle possessed the gun)
3) Stolen Property: Criminal possession of stolen property (Note, the property must really be stolen. Property that is abandoned or is used with permission - e.g., by the police in an undercover sting - is not considered “stolen”)
What is common law burglary?
Common law burglary is breaking and entering the dwelling (a structure where someone sleeps regularly) of another at night with the intent to commit a felony inside.
What does "breaking" mean in the context of common law burglary?
“Breaking” means creating/enlarging an opening by at least minimal force. This includes: breaking a window, opening a window, opening a door, but does not include climbing through an already open window, entering with permission.

Note, “breaking can be “constructive” ("constructive" breaking), meaning entry is gained through by fraud, threats or intimidation (e.g., woman obtain key to an apartment by telling the owner she will clean it for him while he is on vacation, but she actually intends to steal his computer, which she does. Because she gained entry to the apartment by fraud, this is a constructive breaking)
What does "entry" mean in the context of common law burglary?
Some part of D’s body must enter the building.
What does with the intent to Commit a Felony Inside” refer to in the context of common law burglary?
Specific Intent Crime (intent to steal, rob, rape, assault, kill, etc. ---INTENT AT THE TIME D BREAKS IN!
What is common law arson and what is the required mental state?
►malicious burning of a building Burning requires material wasting AND it must be the building itself that burns (not the carpet).

►The required state of mind is MALICE (satisfied by criminally reckless conduct too)
In accomplice liability, who is the principal?
The person who commits the crime.
In accomplice liability, who is the accomplice?
An accomplice aids or encourages the principal with the intent that the crime be committed.
What is the scope of accomplice liability?
The accomplice is guilty of all crimes he aided or encouraged (just as if he did it), and all other foreseeable crimes committed along with the aided crime.
What are three important principles to keep in mind to determine when someone is not an accomplice?
1) Mere presence at the scene of the crime does not make someone an accomplice; he or she must actively aid or encourage the principle
2) Mere knowledge of the crime does not make someone an accomplice; he must intend to aid or encourage the principal (Note, like the common law, NY also requires intent for accomplice liability. However, mere knowledge can make someone guilty of the lesser crime of criminal facilitation)
3) Victims of crime cannot be accomplices, since they are considered members of a protected class (e.g., minors can’t be convicted of “selling alcohol to a minor”)
How can an encourager accomplice withdraw?
An accomplice who only “encouraged” the principal may w/draw simply by discouraging the crime (before it is committed).
How can an aider accomplice withdraw?
An accomplice who actually helped the principal must either neutralize the assistance or prevent the crime from happening (including notifying the authorities)
What is the common law approach to accessory after the fact?
To commit the separate common law offense of being an “accessory after the fact,” a D must 1) Help a principal who has committed a felony; 2) With knowledge that the crime has been committed; and 3) With the intent to help the principal avoid arrest or conviction (usually not involved in planning or execution of the crime)
What are the modern statutory approaches to accessory after the fact?
Typically called “obstruction of justice,” “harboring a fugitive,” or (as in NY) “hindering prosecution.”
What is the definition of solicitation and what is the required mental state?
Solicitation is asking someone to commit a crime with the intent that the crime be committed. The required mental state is specific Intent. Note, completion is unnecessary; the crime is in the asking.
What are the inchoate crimes?
1) Solicitation
2) Conspiracy
3) Attempt
What is the definition of conspiracy (3)?
1) two or more people (don't need to know each other)
2) intent to enter into the agreement (express or implied) to commit a crime
3) plus an overt act in furtherance of the crime.

-specific Intent crime
-does not merge into a completed crime.
What is an "overt act" in the context of conspiracy?
An “overt act” is any act, even if merely preparatory

(MAJORITY requires;
minority does not because agreement itself is the act.)
Can you have a one-person conspiracy under Common Law and under MPC?
-Common Law: NO. There must be at least two parties, both of whom ACTUALLY agree to accomplish the conspiracy’s objectives. (Related Common Law Rules: If all other parties to the agreement are acquitted, last remaining D cannot be convicted)
-MPC: YES. D may be guilty of conspiracy even if the other parties are acquitted or were just pretending to agree
What is the common law rule regarding vicarious (or "Pinkerton") liability?
In addition to conspiracy, a D will be liable for other crimes committed by his co-conspirators, so long as those crimes 1) Were in furtherance of the conspiracy’s objective; and 2) Were foreseeable.
When is IMPOSSIBILITY a defense to CONSPIRACY?
NEVER
(For example, D and A agree to kill V. When they arrive at V’s house, they find that he is already dead. D and A can still be convicted of conspiracy to commit murder)
ATTEMPT:
What is the general ACT REQUIREMENT?

MENTAL STATE?
attempt requires an OVERT ACT BEYOND MERE PREPARATION

mental state: the specific intent to commit the underlying crime.
Can a D attempt an unintentional crime?
No, you cannot attempt unintentional crimes, since you cannot intend to do something unintentional. Practically speaking, this means there are no attempt versions of recklessness crimes, negligence crimes, or felony murder.
What is factual impossibility and how does it impact criminal liability for attempt crimes?
Factual impossibility means it is impossible to complete the crime because of some physical factual conditions unknown to D. Factual impossibility is never a defense to attempt.
What is legal impossibility and how does it impact criminal liability for attempt crimes?
Legal impossibility means it is impossible to complete the crime because of some legal circumstance or status that prevents the underlying crime from taking place. Legal impossibility is a defense to attempt.

Note, in NY, legal impossibility not a defense to attempt.
Under inchoate offense doctrines, is withdrawal/renunciation/abandonment ever a defense in under the common law?
MPC?
-Common Law Rule: Withdrawal is not a defense. The exception is that once D withdraws from a conspiracy, he will no longer be vicariously liable for subsequent crimes committed by the co-conspirators.

-MPC: Withdrawal can be a defense, but only if
1) D completely and voluntarily renounces the solicitation, conspiracy, or attempt, AND 2) the renunciation is based on a change of heart,” not a fear of failing or being caught.
What are the merger rules for the inchoate offenses?
-Solicitation and attempt merge with completed requirement (Note, in NY, solicitation does not merge).
-Conspiracy does not merge.
What are the three CAPACITY DEFENSES?
1) Insanity - at time of crime D was so mentally ill as to be entitled to acquittal
2) Infancy
3) Voluntary Intoxication
What are the FOUR TESTS OF INSANITY?
MENTAL DISEASE OR DEFECT PLUS:

1) M’NAGHTEN RULE:
►At time of crime D A) didn't know that his act was wrong, OR B) Did not understand the nature & quality of his act.

2) IRRESISTABLE IMPULSE TEST:
►D was unable to control his action or conform his conduct to the law

3) ALI/MPC Test: :
►@ time of the crime D lacked SUBSTANTIAL CAPACITY to either:
A) Appreciate the criminality of his conduct OR
B) Conform his conduct to the requirements of law

4) DURHAM (or Product) TEST
►crime was product of her mental illness
What is the first requirement needed for any insanity defense?
The first requirement for the insanity defense is that D must have a mental disease or defect
How does incompetency differ from insanity?
1) Insanity: the issue is whether D was insane at the time of the crime. If yes, then D is not guilty
2) Incompetency: the issue is whether D is insane at the time of trial. If yes, then the trial is postponed until D is competent
when can INTOXICATION be a defense and what does the defense require?
1) VOLUNTARY INTOXICATION - could be for addicts or alcoholics
►defense only to specific specific intent crimes

2) INVOLUNTARY INTOXICATION -- hold you down and get you drunk, slips something in your drink (somewhat like insanity defense)
►defense to all crimes including strict liability
2 RULES FOR INFANCY DEFENSE
“Rule of Sevens”:

If @ TIME OF CRIME the child was:

► under 7 y.o.: NO CRIMINAL LIABILITY
► under 14: Rebuttable presumption against prosecution of no liability
Rule for MISTAKE OF FACT defense

REASONABLE OR UNREASONABLE?
Whether a D’s mistake of fact will be a defense depends on mental state for the crime and whether the mistake is reasonable or unreasonable. Relevant if shows lack of the required intent.

►Specific intent: any mistake (even an unreasonable one)
►Malice or general intent: reasonable mistake only
►Strict liability: irrelevant
Under the Common Law what is the rule regarding mistake of law defenses?
Mistake of law is generally not a defense. However, if the statue specifically makes knowledge of the law an element of the crime (e.g. “selling phony Rolex watches knowing it is unlawful to do so”), mistake of law can be a defense.
What are common examples of deadly and nondeadly force?
-Common examples of nondeadly force: shoves and punches
-Common examples of deadly force: guns and knives
Rule for use of NON-DEADLY force in self-defense?
D may use non-deadly force any time he reasonably believes that force is about to be used against him
Rule for use of DEADLY force in self-defense?
D may use deadly force any time he reasonably believes deadly force is about to be used against him.
INITIAL AGGRESSOR RULE in the context of using deadly force in self-defense?
D may not use deadly force if he is the initial aggressor D may regain right to self-defense if:

► 1) he withdraws from the fight AND
2) communicates that withdrawal to the other person;

OR

► other party suddenly escalates the non-deadly fight into a deadly one
DUTY TO RETREAT rule (minority) and 4 exceptions
retreat to the wall is required before using DEADLY FORCE, unless
1) D is in his home
2) D cannot retreat in complete safety
3) Assailant is in process of robbery or rape
4) attack occurs while victim is making a lawful arrest
What happens if D is mistaken about the need for self-defense?
-Reasonable Mistake: If the mistake is reasonable, it’s a complete defense
-Unreasonable Mistake: If mistake is unreasonable, there is a split. Under the Common Law/NY Rule, it's no defense at all, but under the Minority/MPC Rule, it will mitigate liability (“Imperfect Self-Defense”: An unreasonable belief in the need to use deadly force in self-defense will mitigate murder to voluntary manslaughter)
May force be used to prevent a crime?
-Nondeadly force may be used if necessary to prevent a crime
-Deadly force may only be used to prevent a felony risking human life
Will a D have a defense if he uses force in DEFENSE OF OTHERS?
A D may use force and deadly force to protect others just the same as he could use to defend himself.
What is the GENERAL rule and BURGLARY rule to DEFENSE OF PROPERTY?
-General Rule: Deadly force may not be used to defend property
-Burglary Rule: Deadly force may be used to prevent a burglary if the D is inside his or home
Will a D have a defense if he uses force in resisting arrest?
If D knows or reasonably should know the person performing the arrest is a police officer, under the Majority Rule: D may use nondeadly force to resist the arresting officer if the arrest is unlawful.

In NY, force may not be used to resist an arrest, even an unlawful one, unless the arresting officer uses excessive force.
When can a law enforcement officer use deadly force?
An officer may use deadly force only when doing so is reasonable under the circumstances.
What is the rule regarding the defense of necessity?
Necessity is a defense to criminal conduct if D reasonably believed that his conduct was necessary to prevent a greater harm However, necessity cannot be a defense to homicide
Rule regarding the DEFENSE OF DURESS?
Duress is a defense to crime OTHER THAN HOMICIDE if:
► D reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family if he did not commit the crime.
What is the defense of ENTRAPMENT?
This very narrow defense works only if

1) The criminal design originated with the government, AND

2) D was not predisposed to commit the crime
What are the four global search and seizure issues?
1) Whether a search or seizure is governed by the Fourth Amendment
2) Whether a search or seizure conducted with a warrant satisfies Fourth Amendment requirements
3) Whether a search or seizure conducted without a warrant satisfies Fourth Amendment requirements; AND
4) The extent to which evidence obtained through a search and seizure that violates the Fourth Amendment is nonetheless admissible in court
To determine whether the search or seizure is government by the fourth amendment, what two things should you look for?
1) Was the search or seizure executed by a government agent?
2) Was there a reasonable expectation of privacy in the area searched or the item(s) seized?
In the context of the Fourth Amendment, what are the two most important categories of government agents and what are additional categories?
-Two most important categories of gov’t agents for bar: 1) Publicly paid police, on or off duty; 2) Private Citizens, if (and only if) they are acting at the direction of the police.
-Additional categories of potential gov’t agents: 1) Private Security Guards only if they are deputized w/ the power to arrest (e.g. campus security officers at many public universities); 2) Public school administrators (e.g. principals; vice-principals)
What are the four protected areas which the Fourth Amendment protects individuals from unreasonable searches and seizures of?
1) Persons (i.e. bodies);
2) Houses (including hotel rooms);
3) Papers (e.g. letters, personal correspondence); AND
4) Effects (e.g. purses, back packs)
What does the protection of houses include under the Fourth Amendment?
The protection of “houses” includes the “area of domestic use” immediately surrounding the house, called the curtalige (e.g. back yard enclosed by fence; front porch)
To implicate the Fourth Amendment, a search or seizure of persons, houses, papers or effects by gov’t agents must invade an individual’s reasonable expectation of privacy; what is the two-prong test for figuring out whether this standard has been met?
1) The individual must have exhibited an actual or subjective expectation of privacy in the area searched or item(s) seized, AND
2) The privacy expectation must be “one that society recognizes as reasonable." Note, police search is presumptively unreasonable under the Fourth Amendment when it uses a device that is not in public use to explore details of the home that officers could not have known without physical intrusion (e.g. Police violated the Fourth Amendment when, positioned outside the home without a warrant, they used a “thermal imaging device” to detect “hot spots” inside the home where the homeowners had placed halid lights to grow marijuana)
What are the eight categories of items that are sufficiently "public" in nature that they carry no reasonable expectation of privacy, even if they are searched or seized by gov't agents?
1) Paint scrapings on the outside of car
2) Account records held by a bank
3) Airspace: anything that can be seen below while flying in public airspace
4) Garbage left at the curb for collection
5) Voice (sound of your voice)
6) Odors (most important for the bar: those that emanate from D’s car or D’s luggage)
7) Handwriting
8) Open fields: that is, anything that can be seen in or across the open field

Note, the thing that these items have in common is knowing exposure to third parties.
Who has standing to challenge a search or seizure under the Fourth Amendment?
To have authority, or “standing,” to challenge the lawfulness of a search or seizure by a gov’t agent, an individual’s personal privacy rights must be implicated, not those of a third party.
Does a search or seizure by gov’t agent implicates individuals’ reasonable expectation of privacy so as to confer standing under the Fourth Amendment if they own the premises searched?
Yes, always.
Does a search or seizure by gov’t agent implicates individuals’ reasonable expectation of privacy so as to confer standing under the Fourth Amendment if they do not own the premises, but reside there?
Yes, always.
Does a search or seizure by gov’t agent implicates individuals’ reasonable expectation of privacy so as to confer standing under the Fourth Amendment if they neither own nor reside in the premises searched but they are overnight guests there?
Always as to areas overnights guests can be expected to access (e.g. YES: living room, dining room, bathroom; NO: closet in host’s bedroom)
Does a search or seizure by gov’t agent implicates individuals’ reasonable expectation of privacy so as to confer standing under the Fourth Amendment if they neither own, nor reside, nor are staying overnight but are merely using someone’s residence solely for business purposes?
No, never (e.g. apartment of acquaintance used only to bag cocaine)
Does a search or seizure by gov’t agent implicates individuals’ reasonable expectation of privacy so as to confer standing under the Fourth Amendment if they own the property seized?
Only if they have a reasonable expectation of privacy in the area from which property was seized (e.g. Man who hides drugs in girlfriend’s purse? NO!)
Does a search or seizure by gov’t agent implicates individuals’ reasonable expectation of privacy so as to confer standing under the Fourth Amendment if they are passengers in a car?
Only if they have a reasonable expectation of privacy in the area searched or the item seized (e.g., a cop finds a baggie of drugs w/ passenger’s name on it under the driver’s seat? NO!; A cop finds a bag of marijuana in a passenger’s coat pocket in back seat? YES) But remember, a passenger’s effects are considered part of the vehicle for purposes of automobile searches; therefore, if the search is valid, the passenger will lose the challenge.

Note, in NY, passengers in cars can challenge possession of weapons if possession is attributed to them.
Is the fact that incriminating evidence may be introduced against an individual in court sufficient, in and of itself, to provide the authority to challenge the search or seizure in court?
No, the fact that incriminating evidence may be introduced against an individual in court is insufficient, in and of itself, to provide the authority to challenge the search or seizure in court.
To determine whether the search warrant under which criminal evidence was gathered satisfy Fourth Amendment requirements, what three key questions do you need to answer?
1) Is the warrant supported by probable cause and particularity?
2) If not, did police officers rely on a defective warrant in “good faith”? (applies to MBE only: NY rejects the “good faith doctrine”)
3) Was the warrant properly executed by the police?
What is the majority test for determining whether a search warrant was supported by probable cause?
Probable cause requires proof of a “fair probability” that contraband or evidence of crime will be found in the area searched, based on a preponderance of the evidence. Note, hearsay is admissible for this purpose.
May the police use an informant's tip to establish probable cause in support of a search warrant?
Yes, police may rely on information obtained through an informant’s tip, even if the information is unanimous; the sufficiency of the informant’s tip rests on corroborations by the police of enough of the tipster’s information to allow the magistrate to make a “common sense practical” determination that probable cause exists (based on a totality of the circumstances).
What is the standard regarding particularity and a search warrant?
The search warrant must specify the place to be searched AND the items to be seized. Note, you cannot have a general warrant that authorizes a fishing expedition in private areas that could not house the evidence for which there was probable cause to search.
If a warrant that invalid due to absence of probable cause or particularity still be saved?
Yes, on the MBE, a warrant that is invalid due to absence of probable cause or particularity can still be saved if the officer relied on it in “good faith."

Note, this is not the case in NY.
What are the four categorical exceptions to the MBE's good faith doctrine for search warrants that have constitutional deficits in probable cause and particularity?
1) The affidavit supporting the warrant application is so egregiously lacking in probable cause that no reasonable officer would have relied on it (e.g., “bare bones” affidavit that states only that police have received information from a confidential informant” who is “known to them” and “has provided reliable information in the past”)
2) The warrant is so facially deficient in particularity that officers could not reasonably presume it to be valid (e.g., warrant authorizes a search for “all serial numbers and identification numbers on all property” at an address where probable cause existed only as to the presence of a stolen vehicle parked outside)
3) The affidavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding
4) The magistrate who issued the warrant is biased in favor of prosecution (e.g., salary of town official responsible for issuing search warrants comprised entirely of cash award for each warrant issued).
If the police had a valid warrant or, on the MBE only, a defective warrant saved by the officers’ good faith, what question must you ask?
Was the warrant properly executed by the police?
What are the two important aspects of the inquiry into whether the warrant was properly executed by the police?
1) Whether the officers executing the warrant complied with its terms and limitations (in executing the warrant, officers are allowed to search only those areas and items authorized by the language of the warrant); AND
2) Whether the officers executing the warrant complied with the “knock and announce” rule
What is the "knock and announce" rule?
This rule requires police to “knock and announce” their presence AND their purpose before forcibly entering the place to be searched, unless the officer reasonably believes that doing so would be futile or dangerous or inhibit the investigation

Compare:
-No-knock entry was deemed reasonable where there was probable cause to believe occupant was dealing drugs out of his home, had a violent criminal history, and kept a cache of weapons in the home
-No-knock entry was deemed unreasonable where occupants believed to be making methamphetamine in their home had no violent criminal record, no evidence suggesting they were armed, and no demonstrated risk of destruction of evidence in the time it would take to knock and announce
What are the eight exceptions to the warrant requirement that would make a warrantless search through which criminal evidence was gathered valid?
1) Exigent Circumstances
2) Search Incident to Arrest
3) Consent
4) Automobile
5) Plain View
6) Inventory
7) Special Needs
8) Terry “Stop and Frisk”
What are the three kinds of exigent circumstances that would create an exception to the warrant requirement?
1) Evanescent Evidence: evidence that would dissipate or disappear in the time it would take to get a warrant (e.g. scrapping under fingernail(s); blood evidence in DUI where breathalyzer refused).
2) Hot Pursuit of Fleeing Felon: Hot pursuit allows police, when looking for a suspect, to enter a suspect’s home or that of a third party into which he has fled. During hot pursuit, any evidence of a crime discovered in plain view while searching for the suspect is admissible.
3) “Emergency Aid” exception: Police may enter a residence w/out a warrant when there’s an objectively reasonable basis for believing that a person inside is in need of emergency aid to address/prevent injury.
What is the search incident to arrest exception to the warrant requirement?
The arrest (also called a “custodial” arrest) must be lawful. The justifications are officer safety AND the need to preserve evidence.The search must be contemporaneous in time and place with the arrest and the geographic scope is the wingspan, which includes body, clothing, and any containers w/in the arrestee’s immediate control without regard to the offense for which the arrest was made.

Note, in NY, to search containers w/in the wingspan, police must suspect the arrestee is armed
What is the rule regarding automobiles searched incident to custodial arrest in the context of the search incident to arrest exception to the warrant requirement?
For automobiles searched incident to a custodial arrest, the permissible scope is the interior cabin, including closed containers but not the trunk. Note, once an officer has “secured” an arrestee (by, for example, handcuffing him and placing him in the squad car), the officer can search the arrestee’s vehicle only if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made

In NY, once the occupant is out of the car, police cannot search closed container or bags inside the vehicle to look for weapons or evidence of crime.
What is the standard regarding the consent exception to the warrant requirement?
The consent exception to the warrant requirement is consent must be voluntary and intelligent. To satisfy this standard, police officers do not need to tell someone that she has the right to refuse consent.

ii. Scope of consent: Officer’s consent to search extends to all areas for which a reasonable officer would believe permission to search was granted (objective reasonableness)
What is the scope of consent regarding the consent exception to the warrant requirement?
For the consent exception to the warrant requirement, the scope of consent is the officer’s consent to search extends to all areas for which a reasonable officer would believe permission to search was granted (objective reasonableness)
What does "apparent" authority mean in the context of the consent exception to the warrant requirement?
“Apparent” authority means if a police officer obtains consent to search from someone who lacks “actual” authority to grant it, the consent is still valid under the Fourth Amendment, provided the officer reasonably believed that the consenting party had “actual” authority.

Example: “apparent” authority was found where officers believed that a woman had “actual” authority to consent to their entry into her boyfriend’s apartment since she referred to the apartment as “ours,” had a key to enter it, and claimed to keep personal belongings there.
How do shared premises impact the consent exception to the warrant requirement?
When adults share a residence, any or all of them may consent to a search of common areas w/in it. However, if co-tenants disagree regarding consent to search common areas, the objecting party prevails, as to areas over which the co-tenants share dominion and control.
What is the standard for the automobile exception to the warrant requirement?
Police officers need probable cause to believe that contraband or evidence of crime will be found in the vehicle
For the automobile exception to the warrant requirement, where can police officers search?
The police officers may search the entire vehicle and they may open any package, luggage, or other container that may reasonably contain the item(s) for which there was probable cause to search.
How do traffic searches affect the automobile exception to the warrant requirement?
Sometimes what begins as a routine traffic stop results in a search of all or part of the vehicle. For the search to be lawful, an officer does not need probable cause at the time the car is pulled over, provided he acquires it before initiating the search.
What are the three requirements of the plain view exception to the warrant requirement and what is the special NY rule?
1) Lawful access to the place from which the item can be plainly seen;
2) Lawful access to the item itself; AND
3) The criminality of the item must be immediately apparently


Special NY Rule: Plain view seizure of an obscene material requires prior judicial authorization.
For the inventory searches exception to the warrant requirement, inventory searches occur in what two contexts?
1) Arrestees: when they are booked into jail
2) Vehicles: when they are impounded
What are the three requirements needed to make inventory searches constitutional without a warrant?
1) The regulations governing them are reasonable in scope;
2) The search itself must comply with those regulations; AND
3) The search is conducted in good faith; that is, it is motivated solely by the need to safeguard the owner’s possessions and/or to ensure officer safety (officer’s subjective intent matters)
What are the four categories for the special needs exception to the warrant requirement?
1) Random drug test: SCOTUS has approved warrantless, random drug tests in a variety of contexts, including A) Railroad employees, following an impact accident; B) Customs agents, who are responsible for drug interdiction; AND C) Public school children, who participate in any extracurricular activities. However, suspicionless drug tests are not permitted where their primary purpose is to gather criminal evidence for general use by law enforcement (e.g., the Indianapolis police department set up a “checkpoint” in a part of the city associated with drug trafficking, that subjected randomly stopped vehicles to search for drugs. SCOTUS disallowed the practice, finding that – unlike sobriety checkpoints – its primary purpose was to gather criminal evidence against drug dealers, not to protect motorists from imminent threat to physical safety).
2) Government employees’ desk and files: Warrantless searches of government employees’ desks and files are permitted to investigate work-related misconduct
3) Students’ “effects” in public schools: Warrantless searches of the “effects” (e.g. purses, back packs) of public schoolchildren are permissible to investigate violations of school rules, such as the prohibition of smoking on school grounds
4) Border searches: Neither citizens nor non-citizens have any Fourth Amendment rights at the border, with respect to routine searches of persons and effects
What are terry stops in the context of the terry stops and frisks exception to the warrant requirement?
A terry stop is a brief detention or “seizure” for the purpose of investigating suspicious conduct. Note, terry stops can take place anywhere, e.g. on the street, in a car, in an airport concourse, or on a bus.

3. 4. “Seizure” and Traffic Stops
a. In a traffic stop, both the driver AND the passenger are seized, such that either can challenge legality of the stop
i. Dog sniffs: Dog sniffs at traffic stops are permissible provided the “sniff’ does not prolong the stop unreasonably
1. E.g., it is permissible for “K-9” officers to sniff the exterior of a car during a traffic stop while the computer is checking the driver’s license and registration
In the context of terry stops for the terry stops and frisks exception to the warrant requirement, when is an individual "seized" for Fourth Amendment purposes?
An individual is seized for Fourth Amendment purposes when, based on a totality of the circumstances, a reasonable person would not feel free to leave OR to decline an officer’s request to answer questions. In evaluating whether an individual has been seized during questioning by law enforcement, you should consider whether an officer brandishes a weapon; the officer’s tone and demeanor when interacting with the person questioned; AND whether the individual was told she had the right to refuse consent.
In the context of terry stops for the terry stops and frisk exception to the warrant requirement, what is the federal and NY standard for police pursuit and "seizure."
-Federal Standard: When being pursued by a police officer, an individual is seized only if he submits to the officer’s authority by stopping or if the officer physically restrains him.
-NY Standard: Police pursuit is a seizure in and of itself
What are terry frisks in the context of the terry stops and frisks exception to the warrant requirement?
A terry frisk is a pat down of the body and outer clothing for weapons that is justified by an officer’s belief that a suspect is armed and dangerous. If during a Terry frisk, an officer finds a weapon, it can always be seized. If, instead, the officer finds something she recognizes as contraband without manipulating the object she can seize it as well

In NY, officers can seize an item only if it feels like a weapon.
What is standard for car frisks in the context of the terry stops and frisks exception to the warrant requirement?
When conducting a traffic stop, if an officer believes that a suspect is dangerous, he may search the passenger cabin of the suspect’s vehicle, limited to those areas in which weapon may be placed or hidden.
What are "protective sweeps" in the context of terry frisks and the terry stops and frisks exception to the warrant requirement?
When making an in-home arrest, police may “sweep” the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety
What evidentiary standards apply to terry stops and frisks?
Reasonable suspicion, which is less than probable cause. For terry stops, it requires specific and articulable facts that inform an officer’s belief that criminal activity is present (Note, an officer’s subjective intent is irrelevant in evaluating the legality of the stop; the Fourth Amendment is concerned solely w/ its objective reasonableness). For terry frisks, it requires specific and articulable facts that suggest a suspect is armed and dangerous (remember, a terry frisk is justified by a concern for officer safety only; it is not a general search for criminal evidence)
What evidentiary standards apply in protective sweeps in the context of the terry stops and frisks exception to the warrant requirement?
-Officers may “sweep” the area immediately adjoining the place of aresst, provided there is reasonable suspicion that the house harbors a person who poses a danger to those on the arrest scene
-To justify a “sweep” of more remote areas, the arresting officers must have additional facts sufficient to allow a reasonable prudent officer to conclude that an individual who may threaten officer safety is present in the area swept
Under the exclusionary rule, to what extent can prosecutors use the evidence gathered in an unconstitutional search and seizure against D in court?
According to the exclusionary rule, evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated.
What are the five Fourth Amendment limits on the exclusionary rule?
1) Case-in-chief vs. cross-examination: Unconstitutionally obtained evidence is excluded from the case-in-chief; it may be introduced to impeach D’s testimony on cross-examination
2) “Knock and Announce” violations: A failure to comply with the “knock and announce” rule does not require suppression of the evidence subsequently discovered
3) Police misconduct: To trigger application of the exclusionary rule, police misconduct must be deliberate, reckless, or grossly negligent (e.g. exclusionary rule did not apply to bookkeeping error by police employee that led to an unlawful arrest where the error was the result of simple, not gross negligence)
4) Officers’ “reasonable” mistakes: The exclusionary does not apply to evidence erroneously obtained when executing a search warrant, provided an officer’s mistake was reasonable (need to stop search when they realize their mistake
5) “Fruit of the Poisonous Tree”: “Derivative” ("secondary") evidence, or evidence, both physical and testimonial, that is obtained by exploiting prior unconstitutional conduct, e.g., a confession obtained as a result of an earlier unlawful arrest, is called “fruit of the poisonous tree” and like direct evidence obtained in violation of the Fourth Amendment, it’s inadmissible in the prosecution’s case-in-chief. To nullify “fruit of the poisonous tree,” prosecutors must show a break in the causal link between the original illegality and criminal evidence that is later discovered.
What is direct evidence in the context of the "fruit of the poisonous tree" Fourth Amendment limits on the exclusionary rule?
Direct Evidence is evidence directly linked to the constitutional violation, e.g., evidence gathered pursuant to a search warrant that violates the Fourth Amendment
To nullify "fruit of the poisonous tree," what are the three doctrines that can show a break in the causal link between the original illegality and criminal evidence that is later discovered?
1) “Independent Source”: this doctrine applies where there is a source for the discovery and seizure of the evidence that is distinct from the original illegality (e.g., a parallel process initiated by other officers)
2) “Inevitable Discovery”: this doctrine applies where the evidence would necessarily have been discovered through lawful means (e.g., the body of a dead girl, discovered by the police through an unlawful interrogation, would necessarily have been found lawfully by the police who were presently conducting a “grid search” of the area in question)
3) “Attenuation”: this doctrine admits derivative evidence where the passage of time and intervening events “purge the tape” of the original illegality and restore D’s free will (e.g., D illegally arrested on Friday, meets with attorney on Monday, confesses on Tuesday)
What are the four major requirements for a wiretap warrant?
1) Suspected persons: the warrant must name the suspected persons whose conversations are to be overheard
2) Crimes: There must be probable cause that specific crime has been committed
3) Conversations: The warrant must describe with particularity conversations that can be overheard
4) Time: Wiretap must be for a strictly limited time period
What is the "Unreliable Ear" doctrine and Assumption of Risk?
According to “Unreliable Ear” doctrine and Assumption of the Risk, if you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no Fourth Amendment claim; you assume the risk that the other party will not keep your conversations private.
When does an arrest occur?
An arrest occurs whenever the police take someone into custody against his will for prosecution or interrogation. Note, it is considered a de facto arrest when the police compel someone to come to the police station for questioning or fingerprinting.
What is the standard of proof for all arrests?
THE STANDARD OF PROOF for all arrests is always PROBABLE CAUSE.
For what offense does the FOURTH AMENDMENT PERMIT A CUSTODIAL ARREST?
ALL OFFENSES, even those punishable by a monetary fine only
Do the police need a warrant to arrest someone in a public place, in their home, or in the home of a third party?
-Police do not need a warrant to arrest someone in a public place;
-Absent an emergency, police officers need a warrant to arrest someone in his or her home
-To arrest someone in the home of a third party, police officers need an arrest warrant and a search warrant
What is the "common enterprise theory?"
Under the "common enterprise theory," in a traffic stop, where a police officer discovers evidence of crime that suggests a common lawful enterprise between the driver and his passenger(s), the officer may arrest any or all of them, based on the reasonable inference of shared dominion and control over the contraband.
What are the three federal constitutional challenges that can be brought to exclude a confession?
1) Fourteenth Amendment: Due Process Clause
2) Sixth Amendment: Right to Counsel
3) Fifth Amendment: Miranda Doctrine
What is the standard for excluding a confession under the due process clause?
The standard for excluding a confession under the due process clause is involuntary-ness, which means that the confession is the product of police coercion that overbears the suspect’s will. Note, spiritual compulsion does not implicate due process!

NY has specifically ruled that the length of interrogation and custody are factors in determining voluntary-ness of confessions.
What is the right to counsel under the Sixth Amendment?
The right to counsel under the Sixth Amendment is an express constitutional guarantee that attaches when D is formally charged, not upon arrest and applies at all “critical stages” of the prosecution that take place after the filing of formal charges, including arraignment, probable cause hearings, police interrogation and sentencing.
4) This offense is “offense specific.” This means it applies only to the charges filed against you. It provides no protection for uncounseled interrogation for other uncharged criminal activity.
5) Incriminating statements obtained from D by law enforcements about charged offenses violates the Sixth Amendment if those statements are deliberately elicited and D did not knowingly, intelligently, and voluntarily waive his right to have his attorney present.
Is the Sixth Amendment right to counsel offense specific?
Yes, the right is “offense specific.” This means it applies only to the charges filed against you. It provides no protection for uncounseled interrogation for other uncharged criminal activity.
When does an incriminating statement obtained from D by law enforcements about charged offenses violate the Sixth Amendment?
Incriminating statements obtained from D by law enforcements about charged offenses violates the Sixth Amendment if those statements are deliberately elicited and D did not knowingly, intelligently, and voluntarily waive his right to have his attorney present.
What are Miranda rights?
Miranda rights are implied rights grounded in the Self-Incrimination Clause of the Fifth Amendment.
What are the core Miranda warnings?
1) Right to remain silent
2) Anything you say can and will be used against you in a court o law
3) Right to an attorney
4) If you cannot afford one, an attorney will be appointed for you
What are the two core requirements for when Miranda warnings are necessary?
1) Custody: A suspect is in custody, for Miranda purposes, if the atmosphere, viewed objectively, is characterized by police domination and coercion such that suspect’s freedom of action is limited in a “significant way”
2) Interrogation: The Fifth Amendment Miranda doctrine defines as any conduct the police knew or should have known was likely to elicit an incriminating response (subjective intent of police officer is less important here than under Sixth Amendment). Note, Miranda does not apply to incriminating statements made spontaneously since they are not the product of interrogation.
What is the "public safety" exception to the Miranda doctrine?
Under the "public safety" exception, if a custodial interrogation is prompted by an immediate concern for public safety Miranda warnings are unnecessary and any incriminating statements are admissible against the suspect.
When are incriminating testimonial responses obtained through custodial interrogation admissible?
Unless the public safety exception applies, incriminating testimonial responses obtained through custodial interrogation are admissible provided the officer, before initiating questioning “reasonably conveys” to the suspect his core Miranda rights; AND thereafter obtains a valid waiver of the suspect’s Miranda rights to silence and counsel.
What are the two core requirements for a valid Miranda waiver?
1) “Knowing and Intelligent”: A Miranda waiver is “knowing and intelligent if the suspect understands the nature of the rights AND the consequences of abandoning them
2) Voluntary: A Miranda waiver is voluntary if it is not the product of police coercion (Note, under NY’s parent/child rule, if the police use deception or concealment to keep a parent away from a child who is being interrogated, the child’s waiver may be deemed invalid)
How can a Miranda waiver be executed?
A Miranda waiver need not be “express;” it may, instead be implied by a course of conduct that indicates the desire to speak with police interrogators. If a suspect has received and understood his Miranda rights, he waives his right to remain silent by making an uncoerced statement to the police

Note, Justice O’Connor has commented in this regard that suspects are not entitled to “a flow of information to calibrate their self-interest.”
Who bears the burden of proving a valid Miranda waiver?
In proving a valid wavier of suspect’s Miranda rights, prosecution bears burden of proof by a preponderance of the evidence
How must a D invoke his right to remain silent under the Miranda doctrine and what is it effect?
Suspects must unambiguously invoke their right to remain silent (have to say it). Once the suspects invoke the right to remain silent, police officers must “scrupulous honor“ the invocation. This means, the very least that the police cannot badger a suspect into talking, must wait a significant period of time before reinitiating question; AND must first obtain a valid Miranda waiver before reinitiating questioning.
How must a D invoke his right to conusel under the Miranda Doctrien and what is the effect of a D invoking this right?
D's request for counsel must be sufficiently clear that a reasonable officer in the same situation would understand the statement to be a request for counsel. Once a suspect asks for counsel (“lawyers up”); all interrogation must cease unless initiated by the suspect. The request for counsel expires 14 days after a suspect is released from custody; a waiver of the Miranda right to counsel obtained after this period is valid, provided it is knowing, intelligent and voluntary

Note, unlike the Sixth Amendment, the Fifth Amendment right to counsel is not offense-specific; therefore, interrogation following a request for counsel under Miranda is prohibited as to all topics, outside the presence of the suspect’s attorney.
What are the three limitations on evidentiary exclusion as applied to Miranda violations?
1) Incriminating statements obtained in violation of a suspect’s Miranda rights are inadmissible in the prosecutor’s case-in-chief but may be used to impeach D’s testimony on cross-examination but NOT the testimony of third party Ws.
2) Failure to give a suspect Miranda warnings does NOT require the suppression of the physical fruits of incriminating statements, provided the statements are voluntary (e.g., D confesses to officer that he killed V and where he hid the murder weapon. The interrogation is found to violate Miranda. However, the weapon cannot be suppressed)
3) If a statement is inadmissible due to a Miranda violation, subsequent statements made after obtaining a Miranda waiver are admissible, provided initial, non-Mirandized statement was not obtained through the use of inherently coerce police tactics, offensive to due process
If testimonial evidence that should have been excluded as violative of Miranda was improperly admitted at trial and D was convicted, is the court required to vacate the guilty verdict?
It depends. The guilty verdict will stand if the government can prove, beyond a reasonable doubt, that the error was harmless, because the D would have been convicted without the tainted evidence. This harmless error rule also applies to physical evidence improperly admitted under the Fourth Amendment.
What are the three types of pretrial identification?
1) Line-ups: W is asked to id the perpetrator from a group
2) Show-ups: one-on-one confrontation between W and suspect
3) Photo arrays: W asked to pick out the perpetrator from a series of photos
What are the two substantive challenges to pretrial identification?
1) Denial of the Right to Counsel: There is no Fifth Amendment right to counsel under Miranda for pretrial id procedures. However, a right to counsel exists under the sixth Amendment at line ups and show ups that take place after formal charging, but there is no Sixth Amendment right to counsel at photo arrays (Note, NY provides greater protection for suspects. In NY, you have the right to have an attorney present at a line-up conducted before formal charges if you are aware that you have counsel and you request that counsel be present)
2) Violation of Due Process: A pretrial identification procedure violates the DP clause of the Fourteenth Amendment when it is so unnecessarily suggestive that it creates a very substantial likelihood of irreparable misidentification. In making this determination, courts must weigh the reliability of a suggestive identification against its corrupting effect.
What is the remedy for constitutional violations in pretrial identifications?
The remedy for constitutional violations in pretrial identification is the exclusion of W’s in court identification. However, even if there is a constitutional violation in a pretrial identification procedure, an in-court identification will still be allowed if the prosecution can prove that it is based on observations of the suspect other than the unconstitutional show-up, line-up or photo array.
What are three facts that the prosecution can point to in order to prove that a W's in-court trial identification is based on observations of the suspect other than the unconstitutional show-up, line-up or photo array?
1) W’s opportunity to view D at the crime scene;
2) The certainty of the W’s identification; AND
3) The specificity of the description given to the police
What do grand juries do?
Issue indictments
Are grand jury proceedings public?
No, they are secret proceedings.
Do states have to use grand juries as part of the charging process?
No, they do not need to use grand juries as part of the charging process and most states don't.
What is the standard of proof for pretrial detention?
The government needs probable cause both to bind a D over for trial and to detain him in jail before trial.
Is a detention hearing necessary to justify a pretrial detention?
A detention hearing, or a hearing to determine probable cause (sometimes called a Gerstein hearing), is unnecessary to justify pretrial detention if 1) the grand jury has issued an indictment; OR 2) a magistrate has issued an arrest warrant.
In the context of pretrial detention, what must happen soon after a D's arrest?
Soon after arrest, D must be bought before a magistrate who will:
1) advise him of his rights; 2) set bail; AND 3) appoint counsel if necessary.
When may decisions regarding bail be appealed?
Decisions regarding bail are immediately appealable.
What is the Brady rule?
A prosecutor must disclose to a criminal D all material exculpatory evidence.
What two things does a right to an unbiased judge mean?
1) The judge has no financial stake in the outcome of the case; AND
2) The judge has no actual malice toward D
When does a criminal defendant have a right to a jury trial?
Criminal Ds have the right to a jury trial when the maximum authorized sentence exceeds six months.
How many jurors must there be and how many does NY require?
There must be at least six jurors in a criminal trial. NY (like most states) requires 12 person juries; however, a D can waive this requirement and proceed to verdict with only 6 jurors participating in the deliberations.
Do jury verdicts need to be unanimous?
Jury verdicts in criminal trials must be unanimous only if 6 jurors are used; verdicts in 12-person juries need not be unanimous.

Note, NY requires unanimous jury verdicts (like most states).
What is the "cross sectional" requirement for juries?
The “cross-sectional” requirement regarding jurors require that the pool from which the jury is drawn represents a cross-section of the community; therefore, a jury that contains all white women over the age of 60 does not violate the cross-sectional provided the pool from which it was drawn was appropriately diverse.
What are peremptory challenges in the context of juries?
Peremptory challenge permit both sides to exclude jurors without stating their reasons for doing so, but they can’t be used by either side to exclude prospective jurors on account of race or gender.
When does a D's Sixth Amendment right to confront Ws against him not apply?
D’s Sixth Amendment right to confront adverse Ws does not apply where face-to-face confrontation would contravene important public policy concerns (e.g., traumatizing a child W).
What is the two-prong test that applies to claims of ineffective assistance of counsel?
1) Counsel’s performance was deficient (example of the strictness of the deficiency standard: Insufficient showing of deficiency where attorney took “cat nape” during trial but was otherwise effective); AND
2) But for the deficiency, the outcome of the trial would have been different (the “prejudice” requirement) (example of strictness of prejudice standard: Insufficient showing of prejudice where attorney slept through entire 15-minute testimony of W for the prosecution and thus could not engage in any cross-examination; no prejudice because W testified as to “non-contested matters” only)
What is a NY example regarding an ineffective assistance of counsel claim?
Reversal of a guilty verdict was not required on ineffective assistance of counsel grounds when one (but not both) of two attorneys representing D was found to be unlicensed.
What is required for a plea to be valid?
For a guilty plea to be valid, the judge must establish that it is voluntary AND intelligent.
What is a "plea-taking colloquy?"
In order to show that a guilty plea is voluntary AND intelligent (thus making it valid), the judge must conduct a “plea-taking colloquy” in which judge addresses in open court and on the record: 1) the nature of the charges (including required elements of the offense); AND 2) the consequences of the plea (e.g., waiver of the right to plead not guilty; waiver of the right to a trial).
What are the four scenarios in which a D may withdraw a guilty plea after sentencing?
1) The plea is involuntary, due to a defect in the plea-taking colloquy;
2) There is a jurisdictional defect (i.e., the wrong court took the plea);
3) D prevails on a claim of ineffective assistance of counsel; OR
4) The prosecutor fails to fulfill his end of the bargain;the remedy is D can w/draw plea and go back to square one (e.g., prosecutor agrees to make no sentencing recommendation but at the sentence hearing, he tells the judge to impose maximum penalty).
In the context of punishment, what is the Eighth Amendment standard?
The Eight Amendment prohibition against cruel and unusual punishment disallows criminal penalties that are grossly disproportional to the seriousness of the offense committed
When does a death penalty statute violate the Eight Amendment?
A death penalty statute would violate the Eight Amendment if it created an automatic category for the imposition of the death penalty (e.g., a statute that provides that “any conviction for first degree murder where the victim is a police officer requires the imposition of a sentence of death").
What are the evidentiary requirements for the death penalty?
In deciding whether to impose the death penalty, jurors must be allowed to consider all potentially mitigating evidence.
The Eighth Amendment prohibits the death penalty in what three categories of Ds?
1) Ds with mental retardation
2) Ds who are presently insane (if regain mental health, but not while crazy)
3) Ds who were under the age of 18 at the time the relevant offense occurred (not the present age)
In the context of double jeopardy, when does jeopardy attach?
-Jury trial: when the jury is sworn
-Bench trial: when the first W is sworn
-Guilty plea: when the court accepts D’s plea unconditionally
Does the double jeopardy clause apply to civil proceedings?
No, the double jeopardy clause does not apply to civil proceedings.
What does the double jeopardy clause provide?
“….NOR SHALL ANY PERSON BE SUBJECT FOR THE SAME OFFENCE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB” BY THE SAME SOVEREIGN
What is the federal rule regarding the "same offence" requirement for double jeopardy?
Two offense are NOT the same offense for purpose of the double jeopardy clause if each contains an element the other does not

Consider Vehicular Manslaughter (causing death of another through the use of an auto operated negligently) vs. Hit and Run (causing bodily injury to another through the use of an auto operated negligently and unlawfully leaving the scene of the accident): Vehicular Manslaughter and Hit-and-Run are not the same offense for double jeopardy because vehicular manslaughter requires proof of death which hit and run does not; and hit and run requires proof that D unlawfully left the scene, which vehicular manslaughter does not.
Are two offenses the “same offense” if only one offense has an element not contained in the other?
Prosecution for the greater offense precludes latter prosecution for the lesser-included offense. Likewise, prosecution for the lesser-included offense also precludes later prosecution for the greater offense
Who are the same sovereigns for the purposes of the double jeopardy clause?
-State and federal governments are not the same sovereign
-Different states are not the same sovereign
-States and municipalities within them are the same sovereign
What are the four exceptions to the double jeopardy rule that permit retrial?
1) A hung jury
2) A mistrial for manifest necessary (e.g., retrial was permitted where a defect was found in the indictment during trial that could not be cured by amending it)
3) A successful appeal, unless the reversal on appeal was based on the insufficiency of the evidence presented by the prosecution at trial; AND
4) A breach of the plea agreement by D
Who may assert the Fifth Amendment Privilege against compelled testimony ("Taking the Fifth")?
ANYONE MAY ASSERT the privilege (e.g,"", Ds, Ws, parties to civil proceedings)
When may the Fifth Amendment Privilege against compelled testimony be asserted?
The privilege can be asserted in any proceeding in which an individual testifies under oath. However, the privilege must be asserted at the first opportunity or it is forever waived (when asked with the same question in a later proceeding).

Note, in NY, the privilege cannot be asserted in a grand jury proceeding.
What does the Fifth Amendment privilege against compelled testimony specifically protect against?
This is a testimonial privilege that protects us from compelled testimony only; it does not apply to the state’s use of our “bodies" (e.g., the privilege does not apply to the forcible extraction of blood or urine samples for prosecutorial use in a DUI case).
The Fifth Amendment privilege against compelled testimony disallows negative prosecutorial comment on what two things?
1) A D's decision not to testify at his trial
2) A D's invocation of his right to silence or counsel
What are the three ways to eliminate the Fifth Amendment privilege against compelled testimony?
1) Grant of Immunity: Prosecutors can grant “use and derivative use” immunity, which bars the government from using your testimony or anything derived from it to convict you (note, NY uses “transactional” immunity which is broader than “use and derivative use” immunity since it shields Ws from prosecution for any transaction they testified about in their immunized testimony). Remember, an individual can be convicted based on evidence obtained prior to the grant of immunity.
2) D taking the stand: By taking the stand, D waives the ability to “take the Fifth” as to anything properly within the scope of cross-examination
3) Statute of Limitations: The privilege is unavailable if the statute of limitations has run on the underlying crime since, in this circumstance, a W’s testimony could not expose him or her to criminal prosecution
rule for MERGER OF CONVICTION
1) COMMON LAW
2) American Rule
1) CL: Conduct that constitutes felony and misdemeanor, can only be convicted of the felony.

2) American:
Solicitation for a crime merges into completed crime
Attempt merges into completed crime

CONSPIRACY DOES NOT MERGE INTO COMPLETED OFFENSE
TRANSFERRED INTENT applies to which crimes?
BATTERY
ARSON
HOMICIDE

(but not attempt)
Note: D usually is guilty of two crimes, actual completed crime, and attempt against intended victim
RULE for using the DEFENSE of CONSENT
Not usually a defense unless the crime requires the lack of consent of the victim (like rape)
ASSAULT
(two types)
Assault can be EITHER

1) SPECIFIC INTENT: an attempted battery. (a swing and a miss)

OR

2) GENERAL INTENT: Intentionally create (other than mere words) a reasonable apprehension of imminent bodily harm. (a fake punch)