Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
169 Cards in this Set
- Front
- Back
- 3rd side (hint)
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
|