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169 Cards in this Set

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Sources of Law for the Multistate Bar Examination
Common Law

Majority Statutory Rules where differ from Common Law

Model Penal Code
Massachusetts - Common Law with Mass statutory variations
Essential Elements of a Crime
Act requirement

Mental state

Causation

Concurrence Principle
Specific Crimes, generally
Can be both against persons and property
Liability for the Conduct of Others
Accomplice Liability
Inchoate Offenses
"Incomplete" Offenses

Solicitation
Attempt
Conspiracy
Defenses
Insanity
Voluntary Intoxication
Infancy
Mistake
Self-Defense
Necessity
Duress
Entrapment
Jurisdiction
A crime may be prosecuted in any state where the ACT that was part of the crime took place; or the RESULT that took place
Burden of Proof
In a criminal case, the prosecution must prove each element of the crime beyond a reasonable doubt
Felony
Crime that may be punished by more than one year in prison
Misdemeanor
Crime for which the maximum punishment may not exceed one year in prison
Act Requirement
Culpable acts can be either commissions or omissions
Commissions
All bodily movements are physical acts that can be the basis fro criminal liability, provided the movements are voluntary
Involuntary movements
Not considered criminal acts:

1) one that is not the product of the actor's volition - i.e. pushed

2) Sleepwalking or otherwise unconscious conduct

3) Reflex or convulsion
Omissions
Failure to act can also be basis for criminal liability, provided:

1) Legal duty;
2) knowledge of facts giving ris to the duty; AND
3) Ability to help
Legal Duty
1) by statute
2) by contract
3) by a status relationship
4) by voluntary assumption of care
5) by creation of the peril
Common Law Mental States
Specific Intent
Malice
General Intent
Strict Liability
Specific Intent Definition
When the crime requires not just eh desire to do the act, but also the desire to achieve a specific result
Specific Intent Crimes
Crimes against the person:
1) Assault
2) 1st Degree Murder

Crimes Against Property:
1) Larceny
2) Embezzlement
3) False Pretenses
4) Robbery
5) Forgery
6) Burglary

Inchoate Crimes
1) Solicitation
2) Conspiracy
3) Attempt
Specific Intent Crimes Defenses
Voluntary intoxication

and

Unreasonable mistake of fact
Malice Definition
When a defendant acts intentionally or with reckless disregard of an obvious or known risk
Common Law Malice Crimes
Murder

Arson
General Intent Definition
Defendant need only be generally aware of the factors constituting the crime; need NOT intend a specific result
Jury can usually infer the general intent simply from the doing of the act
General Intent Examples
Battery
Forcible rape
False imprisonment
Kidnapping
Strict Liability Definition
When the crime requires simply doing the act; no mental state is needed
Two Types of Strict Liability Crimes
Public Welfare offenses - regulatory or morality offenses that typically carry small penalties

Statutory Rape - having sex with someone who is under the age of consent
Causation
Need BOTH:

Actual

and

Proximate
Actual Causation
D is the cause-in-fact if the bad result would not have happened BUT FOR the defendant's conduct

An "accelerating cause" is an actual cause - i.e. shooting a stabbing victim in the head
Proximate Causation
Legal cause - Proximate cause if the bad result is a natural and probable consequence of the defendant's conduct
Proximate Causation Cut-offs
Intervening Causes - unforeseeable intervening event causes the bad result

Eggshell victims - will be proximate even if victim's pre-existing weakness contributed to the bad result
Concurrence Principle
Defendant must have the required MENTAL STATE at the SAME TIME as he engages in the culpable act
Most frequently arises with Larceny and burglary
Battery
Unlawful
Application of Force
resulting in either
Bodily injury or
offensive touching

Mental state: general intent
Assault
Attempted Battery, OR

Intentional creation
other than by mere words
of a reasonable fear in victim's mind

Mental state: specific intent

MASSACHUSETTS - don't need to prove victim was actually harmed, just that D intended to make the victim fearful
of imminent bodily harm
Homicide Year-and-a-Day Rule
Majority/Mass Rule - death may occur at any time

Common Law Rule - death must occur within a year-and-a-day of the homicide
Murder definition
causing the DEATH,
of ANOTHER PERSON,
with MALICE AFORETHOUGHT

Massachusetts - human being includes a viable fetus

Common Law - child must be born alive
Malice Aforethought
Satisfied by any of four mental states:

Intent to Kill;
Intent to Inflict serious bodily harm;
Extreme recklessness; or
Intentional commission of a dangerous felony

Extreme Recklessness - reckless indifference to human life or having "abandoned + malignant heart"
"Intent to Kill" Murder
Deadly weapon rule

Transferred Intent
Deadly Weapon Rule
Intentional use of a deadly weapon creates an inference of an intent to kill
Transferred Intent
If a defendant intends to harm one victim, but accidentally harms a different victim instead, the defendant's intent will transfer from the intended victim to the actual victim
Does not apply to ATTEMPTS, only to crimes with completed harms
Felony Murder Definition
Any killing caused during the commission of or attempt to commit a felony
Most common limitations on felony murder
Must be foreseeable death during/immediate flight after a separate inherently dangerous felony

Once the felon reach a place of temporary safety, the felony ends

Victim must not be a co-felon EXCEPT in MASSACHUSETTS
Vicarious Liability
Killing by Co-Felons

Killings by Third Parties
Killing by Co-Felons
If one of the felons causes the death, all of the other co-felons will be guilty of felony murder
Killings by Third Parties
Majority (proximate cause) - if a third party commits the actual killing, the felons are still guilty of felony murder so long as at least one of them is a "proximate cause of the death

Massachusetts (agency) - actual killing MUST be committed by one of the felons for the felony murder doctrine to apply
First Degree Murder
A)
An intentional killing committed with:
1) premeditation AND deliberation
OR
2) Extreme atrocity or cruelty

B)
Felony murder, when the underlying felony is punishable by death or life imprisonment
Premeditation - thought about it ahead of time

deliberation - calm, cool, collected
Second Degree Murder in Mass
All other murders
Voluntary Manslaughter Definition
an INTENTIONAL killing
committed in the HEAT OF PASSION
upon ADEQUATE PROVOCATION
Four requirements of adequate provocation
1) Provocation from the VICTIM, would arouse a SUDDEN INTENSE PASSION in the mind of a reasonable person
2) D was ACTUALLY provoked
3) D - NO TIME to cool off
4) D DID NOT cool off between the provocation and the killing

Adequate provocation at CL - assault/battery, presently witnessed adultery

Inadequate - At common law, words alone; MASS exception for inflammatory information (spouse infidelity)
Involuntary Manslaughter Common Law/Majority
Killing committed with criminal negligence OR during a crime that does not qualify for felony murder

Crim Neg - Gross deviation from the reasonable standard of care
Involuntary Manslaughter MASSACHUSETTS rule
Wanton + reckless conduct, OR
during the commission of an unlawful act not amounting to a felony nor likely to endanger life
False Imprisonment
Unlawful
confinement of a person
Without his consent

General Intent
Kidnapping
False imprisonment
that involves either moving the victim or concealing the victim in a secret place

General Intent
Forcible Rape
Sexual intercourse
without consent
by force/threat of force/unconscious

General intent
Statutory Rape
Sexual intercourse
with someone under the age of consent (16 in Mass)

Mental State:

Majority - strict liability
MPC/Minority rule - reasonable mistake of age is a defense
Larceny Definition
Trespassory
Taking and
Carrying Away the
Tangible
Personal Property
of Another, with the
Intent to
Permanently Retain the property
T - wrongful or unlawful
T - property must be moved

TPPA - did someone else have lawful custody of the property at the time of the taking

Permanently - if D intends to give property back, not larceny
Erroneous Takings Rule
Taking under a claim of right is NEVER larceny even if defendant erroneously believes the property is his
Continuing Trespass
Takes without intent, not guilty. But if D later forms intent to steal, the initial trespassory taking is considered to have continued and he will be guilty of larceny
Exception to the Concurrence Principle for larceny
Embezzlement
Conversion of the personal property of another by a person already in lawful possession of that property with the intent to defraud

D must already have lawful possession - authority to exercise some discretion over the property
Specific intent to defraud
False Pretenses
Obtaining title to the personal property of another by an intentional false statement, with the intent to defraud
- must be of a present/past event, not future promise
Defendant gets title, meaning ownership
Larceny by Trick
D obtains only custody, NOT TITLE, as a result of intentional false statement
Robbery
A larceny from another's person/presence by force or threat of immediate injury

Specific Intent

No future threats - extortion, blackmail
Massachusetts Theft Crimes
Consolidated into one offense - Larceny

Grand Larceny - Property valued at $251 and up, OR motor vehicle

Petit Larceny - property valued at $250 or less
Forgery
Making or altering a writing
so that it is false
with Intent to defraud
Possession of Contraband
Control for a period of time long enough to have
an opportunity to terminate possession

Constructive - exercise dominion and control over it
Knowledge of possession AND character the item possessed
Massachusetts Drug Possession
Illegal to knowingly possess a controlled substance, unless it was obtained with a prescription

Separate offense to knowingly/intentionally possess controlled substance with intent to manufacture/distribute/dispense
Intent inferred by quantity, manner of packaging, records
OUI
Felony in Mass to operate a motor vehicle under the influence of intoxicating liquor, narcotics or other controlled substances anywhere the public has a right of access
Carjacking
Felony in Massachusetts assault, confine, maim, or to put any person in fear for the purpose of stealing a motor vehicle

D need not succeed in stealing the vehicle
Burglary
Breaking and entering the dwelling of another at night with the intent to commit a felony inside

SPECIFIC INTENT
Breaking - creating/enlarging an opening by at least minimal actual/constructive force

Entry - some part

Dwelling - structure where someone regularly sleeps
Statutory Burglary in Massachusetts
Recognizes common law burglary and various statutes which eliminate one or another of the common law elements
Common Law Arson
Malicious burning of a building

Burning - scorching not enough, must be building itself
Malice intent
Massachusetts Arson
Malicious burning of a building not limited to dwelling of another
Common Law Accomplice
One who aid/encourages the principal with the intent that the crime be committed

Mere presence/knowledge/victims cannot be accomplices

Guilty of all crimes he aided/encouraged AND all other foreseeable crimes committed along with the aided crime
Withdrawal
Accomplice can avoid criminal liability by withdrawing before the crime is committed

Encourager - discourage before committed

Aider - neutralize or prevent crime, includes notifying authorities
Massachusetts Joint Venture Rule
Elements - Knowingly participated in the commission of the crime, with the mental state required for the offense

Guilty of the principal's crime

Joint venture rule defines liability for accomplices other than accessories after the fact
Accessory After the Fact
- Help a principal who has committed a felony;
- with knowledge that the crime has been committed; and
- with intent to help the principal avoid arrest/conviction

Massachusetts distinctions - no accessory liability for certain family members, including spouses, parents, grandparents, siblings, children
Solicitation
Asking someone to commit a crime, with intent that crime be committed

Specific intent, crime is in the asking
Conspiracy
Agreement between two or more people to commit a crime, plus an overt act in furtherance of the crime

Overt act - any, even if mere prep - NOT in Mass

Specific intent
One-Person Conspiracy
MPC - yes under unilateral approach

Mass/Common Law - No
- Bilateral: Must be at least two guilty minds, both of whom actually agree to accomplish the conspiracy's objective

- related: if all other parties to the agreement are acquitted, the last remaining D can't be convicted
Wharton Rule
Two or more people are necessary for commission of the substantive offense, there is no conspiracy unless MORE parties participate in the agreement than are necessary for the crime

Massachusetts does not follow
Vicarious ("Pinkerton") Liability
Common Law: In addition to conspiracy, D liable for other crimes committed by co-conspirators, so long as those crime:
- were in furtherance of the conspiracy's objective, AND
- were foreseeable

Massachusetts requires joint venturer, not vicarious liability
Impossibility
Never defense to conspiracy charge
Attempt
Requires overt act beyond mere prep

Mass/common Law - Dangerous Proximity

MPC/Majority - substantial step towards commission of crime, provided that conduct strongly corroborates actor's criminal purpose

Specific Intent, cannot be unintentional crime (reckless, negligent, felony murder)
Factual Impossibility
Claim that it was impossible to complete the crime because of some physical/factual condition unknown to D

NEVER defense to attempt
Legal Impossibility
Claim it was impossible to complete the crime because of some legal circumstance/status that prevents the underlying crime from taking place

IS defense to attempt
Massachusetts/Common Law Withdrawal
Not a defense - no longer vicariously liable for crimes committed by his co-conspirators after leaving conspiracy, though guilty of conspiracy and foreseeable crimes committed before withdrawal
Merger Rules for Inchoate Offenses
Solicitation and Attempt merge with completed crime

Conspiracy does not merge
Insanity
D must have a mental disease or defect

Three Common tests for legal insanity:
- M'Naghten Test (Majority)
- Irresistible Impulse (volitional)
- Massachusetts/MPC (cog/vol)
M'Naghten Test
Majority test - purely cognitive

D did not know that his act was wrong, or did not understand nature of his act
Irresistible Impulse Test
Volitional

D unable to control his actions, or unable to conform conduct to the law
Massachusetts/MPC Insanity test
Cognitive and volitional

D lacks substantial capacity to either: appreciate criminality of his conduct, or could not conform his conduct to requirements of law
Diminished Capacity in Mass
Not a separate defense, but mental illness that not insanity may still reduce first-degree murder:
1) second-degree murder due to absence of premeditation, or
2) voluntary manslaughter due to absence of malice
Incompetency
Issue is whether D insane at time of TRAIL, postpone until competent

Insanity contrast - D insane at time of crime, not guilty
Voluntary Intoxication
Defense to specific intent crimes
Infancy
Under 7 at time of crime - no prosecution

Under 14 at the time of crime - presumption against prosecution (NOT in Mass)

14 or older, prosecution allowed
Mistake of Fact
Common Law - reasonable mistake will be a defense to any crime except strict liability; Unreasonable mistake defense ONLY to specific intent crimes

Massachusetts - Mistake generally not a defense except if statute specifically makes knowledge of law an element of the crime
Use of Nondeadly Force
May use if:
1) reasonably necessary
2) to protect against an immediate use
3) of unlawful force against himself
Shoves/punches

May be used if necessary to prevent a crime, including burglary if D inside his own home
Use of Deadly Force
May use in self-defense if imminent threat of death or serious bodily injury

Officer may use deadly force when doing so is reasonable under the circumstances

complications: initial aggressor rule and retreat rule
Guns/knives

May be used to prevent a felony risking human life, not used to defend property
Reasonable mistake for use of force
Complete defense

In Massachusetts, if reasonable but D uses excessive force in causing victim's death, crime is voluntary manslaughter
Unreasonable mistake for use of force
Mass/Common Law - no defense

Minority/MPC - mitigate, not exonerate; mitigate murder to voluntary manslaughter
Necessity/Choice of Evils
Defense to criminal conduct if the defendant reasonably believed that the conduct was necessary to prevent a greater harm
Not defense to homicide
Duress
Defense if D was forced to commit a crime because of a threat, from another person, of imminent death/serious bodily injury to himself/close family member
Not defense to homicide
Entrapment
Unfairly tempted the defendant to commit the crime, he may claim entrapment

Very Narrow:

- Criminal design originated with the government, AND
- D not predisposed to commit the crime
Potential government agents re seizure
For government seizure:

1) publicly paid police on or off duty
2) private citizens if acting at police direction
3) private security guards ONLY if deputized with power to arrest
4) Public school administrators
Fourth Amendment Analysis
1) Search and Seizure governed by Fourth Amendment?
2) S+S conducted with warrant?
3) S+S conducted without warrant falls under exception?
4) Admissibility of evidence obtained through improper S+S?
Threshold questions - S+S governed by Fourth Amendment
- S+S executed by government agent

- Reasonable expectation of privacy in area searched/items seized
Reasonable Expectation of Privacy
- persons
- houses (hotels, includes curtilage or area of domestic use immediately surrounding house)
- papers
- affects; things worn/carried

Two-Prong Test:
1) Individual must exhibit actual/subjective expectation of privacy in area/item; AND
2) Privacy expectation must be one society recognizes as reasonable

Police may not use device not in public use to explore details of home officers couldn't have known without physical intrusion
Items without Reasonable Expectation of Privacy
"Patty Achieved A Glorious Victory Over Her Opponents"

(Share exposure to third parties)

Paint scrapings on outside of car;

Account records held by bank

Air space (public)

Garbage at curb for collection

Voice

Odors - car/luggage

Handwriting

Open Fields
Standing to Challenge S+S
Has Standing:
- Own premises
- Reside on premises
- Overnight guest in expected areas
- Owner of property seized if reasonable expectation of privacy in area where seized
- Passenger in car only if reasonable expectation of privacy in area searched

Mass - automatic standing possession is essential element and taken from home/auto
No Standing:
- Use someone else's residence solely for business
Warrant Requirements
1) Must be supported by Probable Cause and Particularity

2) If not, did police rely on defective warrant in "good faith?" - NOT IN Massachusetts

3) Was warrant properly executed by police?
Warrant Probable Cause
Requires proof a "fair probability" that contraband or evidence of a crime will be found in area searched

- Hearsay admissible
- Sufficiency of informant's tip rests on corroboration by police to allow magistrate to make COMMON SENSE PRACTICAL determination

Mass - Aguilar-Spinelli: Prosecution must establish informant's bais of knowledge and veracity/reliability; independent police collaboration may make up for deficiencies
Warrant Particularity
Search warrant must specify place to be searched AND items to be seized
Defective Warrants in Massachusetts
No good faith doctrine, evidence obtained through deficient warrants excluded from prosecutor's case-in-chief, provided constitutional violation was substantial and prejudicial
Good Faith and Warrant Deficiency
General Rule: an officer's good faith overcomes constitutional deficits in probable cause and particularity with four exceptions:

So egregious in PC or particularity, not reasonably presume validity

Contains knowing/reckless falsehoods

Biased magistrate
Mass Defective Warrants
Warrant whose defect was not substantial and prejudicial is valid
Proper Warrant compliance
Comply with terms/limitations and knock and announce

Mass - must have warrant in hand
Valid Warrantless Searches
Escapist

Exigent Circumstances
Search Incident to Arrest
Consent
Automobile
Plain View
Inventory
Special Needs
Terry "Stop and Frisk"
Exigent Circumstances
1) Evanescent evidence would dissipate/disappear

2) Hot pursuit - suspect's home/third party, in plain view

3) Objectively reasonable basis for entering to administer emergency aid
Search Incident to Arrest
Arrest must be lawful

Officer safety and preserve evidence

Must be contemporaneous in time/place

Within wingspan - body, clothing, containers within immediate control

Autos - Permissible - interior cabin including closed containers NOT trunk

- After secured, search only if believe vehicle may contain evidence relating to crime for which the arrest was made
Consent
Voluntary and intelligent, police need not inform right to refuse

Scope - reasonable officer would believe

Apparent Authority - consent from someone who lacks actual authority, valid if officer reasonably believed consenting party had actual authority

Shared Premises - any/all may consent to common areas, however objecting party prevails over shared areas
Automobile
Police need probable cause to believe that contraband or evidence of crime will be found in the vehicle

Scope - entire vehicle, may open package, luggage, other container may reasonably contain

Officer does not need probable cause at the time of the stop, just needs it before initiating search

Mass - motor homes don't fit
Plain View
1) Lawful access to place from which item can be plainly seen

2) Lawful access to item itself; and

3) Criminality of the item must be immediately apparent
Inventory Searches
Timing - booked into jail/vehicle impounded

Constitutional if:
1) regulations are reasonable in scope;
2) must comply with regulations;
3) conducted in good faith (solely by need to safeguard possessions and/or officer safety)

Mass - if regulations governing inventory searches do not specifically mention closed containers, cannot be searched
Random Drug Testing
SCOTUS approved warrantless random drug tests:
- railroad employees following accident
- customs agents responsible for drug interdiction
- public school children

Not allowed when purpose is to gather criminal evidence for general use

Mass - state constitution prohibits random check for illegal drugs by officials in absence of consent/reasonable suspicion unless state can prove substantial government interest
Special Needs Warrant Exceptions
- Random drug tests
- government employees' desks and files for work-related misconduct
- Students' effects in public school for violations of school rules
- Border Searches re: routine searches
Terry Stop Definition
Brief detention or "seizure" for the purpose of investigating suspicious conduct
Fourth Amendment Seizure definition
seized when, based on totality of the circumstances, a reasonable person would not feel FREE TO LEAVE or to DECLINE answering questions

Consider:
- Officer branding weapon
- tone/demeanor
- told right to refuse consent
Police Pursuit and 4th Amendment Seizure
Individual is seized only if he submits to authority by stopping or physically restrained

Mass - pursuit itself is seizure
Traffic Stops and 4th Amendment Seizure
Both Driver and Passenger are seized, either can challenge

Mass - inquiry ends when driver proves valid license or registration unless basis for further inquiry

Dog sniffs of outside are permissible so long as does not prolong unreasonably
Terry Frisk
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

Weapons may be seized, if recognize object as contraband without manipulation may seize

Car - search passenger cabin if danger, limit areas in which weapon may be

May sweep residence during in-home arrest for confederates who may be dangerous
Terry Evidentiary Standards
Reasonable suspicion, which is less than probable cause - specific and articulable facts that inform an officer's belief that criminal activity is present

Mass - if based on informant's tip, must assess reliability and basis of knowledge, with independent corroboration
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
Fourth Amendment Limits on Exclusionary Rule
To trigger exclusionary rule, erroneous police conduct must be deliberate, reckless or grossly negligent

Does not apply to erroneously obtained evidence if mistake was reasonable

Unconstitutionally obtained evidence excludes from case-in chief, can impeach on cross

Failure to knock/announce does not require suppression
Fruit of the Poisonous Tree
Evidence obtained by exploiting prior unconstitutional conduct is inadmissible in prosecutor's case in chief

Nullify by breaking causal link between original illegality and criminal evidence later discovered
Breaking Causal Chain, Poisonous fruit
Independent Source doctrine

Inevitable Discovery doctrine

Attenuation doctrine - passage of time/intervening events purged the taint restores original free will

Massachusetts Inevitable Discovery - Pros. must prove with great specificity/detail discovery was certain, depends on severity of violation and bad faith
Wiretapping
"Screen Telephone Calls Carefully"

Suspected Persons - named in warrant
Time - limited
Crime - pc for specific crime
Conversation - describe with particularity conversations that can be overheard
Eavesdropping
Speaking to someone who has agreed to wiretap/other monitoring, no 4th Amendment claim - you Assume the Risk

Mass - unlawful to willfully engage in electronic surveillance of conversation in a private home with consent of only one party
When Arrest Occur?
Whenever police take someone into custody against her will for prosecution or interrogation

De facto arrest - police compel someone to come to the police station for questioning or fingerprinting

Probable cause standard of proof

Fourth amendment permits custodial arrest for all offenses
When is Arrest Warrant Required?
Not in public place

Absent emergency, needed to arrest someone in their home

In home of third party, need arrest warrant AND search warrant
Common Enterprise Theory
traffic stop where evidence of crime suggests common unlawful enterprise between driver/passengers, officer may arrest any or all of them based on reasonable inference of shared dominion and control over contraband
Three Federal confession Exclusion Challenges
Fourteenth DPC

Sixth Right to Counsel

Fifth Miranda doctrine
Standard for Excluding confession under DPC
Involuntariness, which means confession is product of police coercion that overbears suspect's will

Massachusetts - voluntariness determined initially by judge

Involuntary - excluded

Voluntary - jury makes independent assessment of voluntariness
6th Amendment Right to Counsel
Express guarantee, attaches on formal charge, applies at all critical stages.

Offense specific

Incriminating statements obtained from D by law enforcement re charged offenses violate 6th A if deliberately elicited AND D did not knowingly, intelligently, and voluntarily waive right
Miranda Rights
Implied

Four Core Warnings:
- right to remain silent
- anything you say can and will be used against you in a court of law
- right to an attorney
- if you cannot afford one, an attorney will be appointed for you
Miranda Necessary?
Custody and Interrogation

Custody - if atmosphere, objectively, characterized by police domination and coercion such that freedom of action significantly limited

Interrogation - Any conduct police knew or should have known was likely to elicit an incriminating response

Exceptions - Spontaneous statements, public safety

Unless either applies, incriminating responses are admissible provided officer reasonably conveyed core rights and obtained valid waiver to silence and counsel
Miranda waiver requirements
Knowing and intelligent - understand nature of right sand consequences of abandoning

Voluntary - no coercion

MASS - Police have a duty to inform a suspect who is in custody of his attorney's offer of assistance
Executing Miranda Waiver
May be implied through course of conduct, waived if uncoerced statement

Prosecution bears burden by preponderance of the evidence
Invoking Right to Silence
Unambiguously invoke right; police must scrupulously honor; must wait significant time before reinitiating and get waiver
Invoking Right to Counsel (Miranda)
All interrogation must cease (not offense-specific) unless initiated by suspect; must be sufficiently clear

Expires 14 days after release from custody, waiver after is valid if knowing, intelligent, voluntary
Limit on Miranda Evidentiary Exclusion
May use statement to impeach D, not third party

No physical evidence suppression

Subsequent incriminating statements presumed tainted, overcome if P shows - break in stream of events OR statement did not incriminate D

Subsequent statements after waivers are admissible if after initial violating statement not obtained through the use of inherently coercive police tactics

Harmless Error rule
Harmless Error Rule
If government can prove, beyond a reasonable doubt, the error was harmless because the defendant would have been convicted without the tainted evidence

5th A statements and 4th A physical evidence
Three Types of Pretrial Identifications
Line-ups

Show-ups

Photo arrays
L - witness is asked to identify the perpetrator from a group

S - one-on-one confrontation between the witness and the suspect

P - witness asked to pick out the perpetrator from a series of photos
Two Substantive Challenges to Pretrial Identifications
Denial of Right to Counsel - 6th A during line-ups and show-ups, no photo arrays

Violation of Due Process - unnecessarily suggestive; weigh reliability against corrupting effect

Massachusetts - unnecessarily suggestive is automatically excluded
Pretrial ID remedy
Exclusion of witness's in-court ID, still allowed if P prove based on other observations of suspect than unconstitutional ID
Factors: opportunity to view D at crime scene
certainty of witness's ID
specificity of description given to Police
Grand Juries
Issue indictments, secret proceedings, most States don't use them

Massachusetts - grand jury indictment or presentment is required for a valid felony prosecution in superior court
Pretrial Detention
Government needs PC

Gerstein hearing - determine PC; unnecessary if GJ issues indictment or magistrate issues arrest warrant
Mass - warrantless arrest, judicial determination must be made within 24 hours
First Appearance
Soon after arrest, D must be brought before a magistrate who will:
1. Advise him of his rights;
2. Set bail; AND
3. Appoint counsel if necessary

Bail - immediately appealable

Mass - 6 hour safe harbor, interrogation after is unlawful unless arraigned or waive right to arraign
Evidentiary disclosure
Prosecutor must disclose to a criminal defendant all material exculpatory evidence
Right to unbiased Judges
- Judge has no financial stake in the outcome of the case; and
- judge has no actual malice toward D
Jury Requirements
- Criminal defendants have the right to a jury trial when maximum authorized sentence exceeds six months

- 6 fewest allowed, must be unanimous (not so in 12)

- Pool from which jury is drawn represents a cross-section of community

Peremptory Challenges - may NOT be used to exclude on account of race/gender
Mass - All jury verdicts must be unanimous
Confronting adverse witnesses
6th A right to confront does not apply where face-o-face confrontation would contravene important public policy concerns

Mass - child wines may be positioned so as to avoid looking directly at D, but child cannot have back to D
Right to Effective Counsel
Two Prongs:
- counsel's performance was deficient; AND
- but for deficiency, outcome would've been different (prejudice)

Massachusetts - requires proof of performance falling measurably below that of an ordinary attorney that either deprived the D of a substantial ground of defense or otherwise materially affected the outcome of the trial
Guilty plea validity
Judge must establish voluntary and intelligent

Plea taking colloquy in which addresses in open court and on the record:
1) nature of charges
2) consequences of plea
Guilty Plea Withdrawal
Only if:
- plea is involuntary due to defect in plea-taking colloquy
- jurisdictional defect
- D prevails on claim of ineffective assistance of counsel
- Prosecutor fails to fulfill part of the bargain
Cruel and Unusual Punishment
8th A prohibits grossly disproportionate penalties

Death penalty staute would violate 8th A if automatic category

Jurors must consider any mitigating evidence

Prohibits imposition of death penalty against:
- D with mental retardation
- D who are presently insane
- Minors at time of offense
Double Jeopardy Attachment
Jury Trial - when jury sworn in

Bench trial - first witness sworn

Guilty Plea - Unconditionally accepted plea by court
Criminal only
"Same Offense" requirement for Double Jeopardy
General rule - not same offense if each contains an element the other doesn't

Greater and "Lesser-Included" Offenses - prosecution of one precludes prosecution of other

"nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb" by same sovereign
Same Sovereign requirement in Double Jeopardy
States and municipalities within them
Double Jeopardy Exceptions
Hung Jury
Mistrial for manifest necessity
Successful Appeal
Breach of plea agreement
5th A Privilege against Compelled Testimony
Anyone may assert privilege in any procedding where individual testifies under oath

Must be asserted at FIRST opportunity or FOREVER WAIVED

Allows negative prosecutorial comment on either D's:
- decision not to testify at his trial, OR
- invocation of his right to silence or counsel
Eliminate 5th A privilege against Compelled Testimony
Grant of Immunity

Defendant taking the stand

Statute of Limitations
Mass uses broader Transactional immunity