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168 Cards in this Set
- Front
- Back
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MURDER
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Murder is a homicide committed with malice (and no justification, excuse, or mitigation)
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HOMICIDE
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Homicide is the killing of another human caused by the defendant
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Ways defendant can “cause the killing of another human”
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a. Defendant acted alone.
b. Defendant’s omission caused death and defendant had a duty to act by statute, contract, relationship, or voluntary undertaking c. Act of a third party contributed to death (if foreseeable) |
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Forms of vicarious liability for murder
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a. Defendant solicits the crime.
b. Defendant is a conspirator with one who commits the crime c. Defendant is an accomplice to the one who commits the crime d. Felony Murder rule |
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MALICE
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Malice is the mental state required for murder
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Ways to establish malice
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1. Intent to kill
2. Intent to inflict great bodily harm 3. Depraved heart murder |
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Ways to establish intent to kill
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a. Defendant’s words
b. Using a deadly weapon in a deadly manner |
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DEPRAVED HEART MURDER
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Depraved heart murder is when defendant acts with reckless indifference to known high risk of death
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FELONY MURDER RULE
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Felony murder is a homicide committed during the perpetration of an inherently dangerous felony
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Felony Murder: “during the perpetration”
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From attempt until felon reaches a place of temporary safety
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Felony Murder: “inherently dangerous felonies”
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BARRK: Burglary, Arson, Rape, Robbery, Kidnapping
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Minority Rule for Felony Murder
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Felony murder includes homicides committed during the perpetration of non-dangerous felonies committed in a dangerous manner
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Elements of Felony Murder
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i. homicide
ii. during the perpetration of an inherently dangerous felony iii. independent from the act that caused death iv. proximate cause |
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Defense to felony murder
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A defense to the felony is a defense to a felony murder charge
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Vicarious liability for felony murder
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All felons are liable for death caused by a co-felon
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Exceptions to vicarious liability for felony murder
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1. Majority: no felony murder if non-felon (police officer, store owner) kills a felon.
2. Minority: no felony murder if a non-felon kills another non-felon while resisting the felony. |
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Felony Murder: proximate causation
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Homicide must be a foreseeable result of the felony.
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INVOLUNTARY MANSLAUGHTER
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Involuntary manslaughter is a homicide committed without malice under one of the three following circumstances:
1. Intent to inflict slight bodily injury 2. Criminal negligence 3. Misdemeanor Manslaughter Rule |
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MISDEMEANOR MANSLAUGHTER RULE
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Defendant kills while committing a non-inherently dangerous felony, or a malum in se misdemeanor.
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Involuntary Manslaughter: intent to inflict slight bodily injury
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Defendant kills victim with no intent to kill or seriously injure, but did have intent to inflict some slight bodily injury
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Involuntary Manslaughter: Criminal negligence
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Defendant kills victim while acting in a more than ordinary negligent manner but the defendant’s conduct does not present a high enough risk of death for depraved heart recklessness.
Defendant’s conduct is a “gross deviation” from RPP standard of care |
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Examples of Malum In Se misdemeanors
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Battery
Larceny Public intoxication Possession of drugs |
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Justifications for homicide
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1. Self-defense
2. Defense of others 3. Crime prevention 4. Apprehension/Arrest of Criminal 5. Reasonable Mistake 6. Defense of Habitation/Property (only if a violent intruder, or if intruder intends to commit a felony inside) |
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SELF-DEFENSE
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Defendant may use deadly force to protect against an imminent deadly attack.
Deadly force must be reasonable and necessary |
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Self-defense: duty to retreat
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Defendant need not retreat before using deadly force, unless defendant is the initial aggressor and safe retreat is available.
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Minority rule: self-defense duty to retreat
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Defendant must retreat before using deadly force if safe retreat available, unless Defendant is in his home.
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Self-defense: defendant is initial aggressor
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Defendant cannot assert self-defense unless he first:
1) withdraws and clearly communicates intent to stop fighting 2) initially used non-deadly force and is now faced with attacker suddenly using deadly force; or 3) attempts safe retreat |
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DEFENSE OF OTHERS
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Defendant can use deadly force if reasonable and necessary to defend another.
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Majority Rule: defense of others
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Defendant may claim defense of others if the victim REASONABLY APPEARS to have the right to use deadly force
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Minority Rule: defense of others
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Defendant can use no more force than the person they are defending (i.e. “STAND IN THE SHOES” of the person they defended)
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CRIME PREVENTION
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A police officer or private person may use deadly force if reasonably necessary to prevent the commission of a dangerous felony (but not merely to protect property)
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APPREHENSION/ARREST OF CRIMINAL
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May use deadly force if reasonably necessary to apprehend/arrest a dangerous felon.
Private person can only use deadly force if the person apprehended is actually guilty. |
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REASONABLE MISTAKE
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Defendant may use deadly force based on a reasonable mistake as to self-defense, defense of others, and crime prevention (but not arrest)
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Excuses to homicide
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1. Youth/Infancy
2. Insanity 3. Intoxication |
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YOUTH/INFANCY
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Under 7: no criminal liability
Between 7 and 14: rebuttable presumption of no criminal liability Over 14: treated as adult |
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Tests for Insanity
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1. M’Naghten or “Right/Wrong” test
2. Irresistible Impulse test 3. ALI/Model Penal Code test 4. Durham test |
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M’NAGHTEN TEST
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Defendant did not know wrongfulness or could not understand the nature and quality of his acts
(Focus is on cognitive impairment, not volitional ability) |
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IRRESISTIBLE IMPULSE TEST
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Defendant was unable to control his conduct or conform his conduct to the law
(Focus is on volitional ability, not cognitive) |
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ALI/MODEL PENAL CODE TEST
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Defendant lacked the substantial capacity to either appreciate the wrongfulness of his conduct or to conform to the requirements of the law.
(Focus is on volitional and cognitive ability) |
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DURHAM TEST
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Defendant is not guilty if his crime was the product of a mental disease or defect.
(Just need to show causation) |
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VOLUNTARY INTOXICATION
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No defense to strict liability, general intent crimes, or malice.
May negate specific intent or deliberation. |
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INVOLUNTARY INTOXICATION
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Is a defense to all crimes if the intoxication renders the defendant “insane” under the applicable test
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MITIGATION
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An intentional killing that would otherwise be murder will be mitigated to voluntary manslaughter in the event of:
1. Adequate Provocation; or 2. Good Faith Mistake |
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Adequate Provocation for voluntary manslaughter
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Provocative act must be one that would cause
i. subjective passion; ii. objective passion; and iii. no “cooling off" |
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Voluntary manslaughter: Examples of “reasonable provocation”
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a) Defendant struck by victim who inflicts a “staggering blow”
b) Defendant catches spouse in act of adultery |
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Voluntary manslaughter: Good Faith Mistake
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A homicide by a defendant who intentionally kills victim under a good faith, but unreasonable mistaken belief as to self-defense, defense of others, or crime prevention, can be mitigated to voluntary manslaughter
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Degrees of murder: opening sentence
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“At common law there were no degrees of murder. However, by statute today, all states have at least two degrees of murder.”
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Types of first degree murder
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1. Premeditated and deliberate intent to kill
2. Felony murder (if felony is specified in the state statute) |
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Premeditated
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If defendant had time (even for a brief few seconds) to think about killing the victim before doing so.
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Deliberate
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If defendant acted in a calm & cool frame of mind (i.e. “cold-blooded")
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Second degree murder
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All other murders that do not qualify as first degree murder
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Types of criminal ASSAULT
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1. Attempted battery (victim is unaware)
2. Intentional creation of reasonable apprehension of harmful contact |
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BATTERY
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Unlawful application of force to another person causing bodliy injury or offensive contact
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KIDNAPPING
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The confinement of another person involving either MOVEMENT or CONCEALMENT of the victim.
(no ransom required) |
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LARCENY
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i. Trespassory
ii. taking and carrying away of iii. personal property of another iv. with the intent to permanently deprive |
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Larceny: “trespassory”
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Defendant takes possession of victim’s property without consent.
Consent must occur before taking if the action is to be deemed non-trespassory. |
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Larceny: “taking and carrying away”
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Must move property. Slight movement is enough.
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Larceny: “personal property of another”
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Larceny is a crime against possession, not ownership.
An owner can commit larceny over property he owns if he’s given possession of it to the victim. |
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Larceny: “with intent to permanently deprive”
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Defendant must have specific intent to keep the property at the time of the taking
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Larceny: continuing trespass
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Even if initial taking was not wrongful, defendant is guilty of a continuing trespass if he later decides to keep the item.
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Larceny: defendant abandon’s victim’s property
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Defendant has “intent to permanently deprive” if he abandons the victim’s property creating a SUBSTNTIAL RISK OF LOSS.
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LARCENY BY TRICK
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Same elements as larceny, plus VICTIM CONSENTS TO THE TAKING.
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EMBEZZLEMENT
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i. Fraudulent conversion of the property of another
ii. by one in rightful possession |
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Embezzlement: fraudulent conversion
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Defendant must deal with victims property in some manner inconsistent with victim’s grant of possession of the property to the defendant
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Embezzlement: one in rightful possession
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Victim must first voluntarily give defendant rightful possession of the property that defendant later fraudulently converts
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FALSE PRETENSES
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i. ACQUISITION OF TITLE to defendant’s property
ii. by FALSE REPRESENATION |
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False Pretenses: acquisition of title
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Usually when defendant intends to sell the property to defendant.
Includes acquisition of money |
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ROBBERY
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Same elements as larceny, plus:
v. committed from the victim’s person or presence vi. by force or threat of force of immediate bodily harm |
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ARSON
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i. The BURNING
ii. of a PROTECTED STRUCTURE iii. OF ANOTHER iv. with MALICE |
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Arson: of another
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The protected structure must be in the rightful POSSESSION of another when burned.
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Arson: malice
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Defendant has malice if
1) intent to burn the structure; or 2) acts with knowledge of the extremely high risk of the structure burning |
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Arson: protected structure
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At common law, the structure had to be the dwelling house of another. Today, most states protect all structures.
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BURGLARY
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i. Trespassory
ii. breaking & entering iii. of the protected structure of another iv. at night v. with the intent to commit a felony therein. |
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Burglary: trespassory
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Without consent
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Burglary: breaking
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Physical movement of a door or window (or entry by fraud)
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Burglary: entering
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Some portion of defendant’s body, or some tool must enter the structure
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Burglary: protected structure
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At common law, the structure had to be the dwelling house of another. Today, most states protect all structures.
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Burglary: of another
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Like arson, burglary is a crime against possession (a landlord may burglarize his own unit if it is rented to another)
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Burglary: at night
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Today, most states have eliminated this common law requirement.
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Burglary: with the intent to commit a felony therein
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Intent to commit a felony must exist at the time the entry occurs
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Inchoate crimes
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1. Attempt
2. Solicitation 3. Conspiracy |
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ATTEMPT
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Defendant is guilty of attempt if Defendant commits an act of perpetration with the intent to commit the intended (target) crime
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Attempt: act of perpetration
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Defendant must either:
i. take a substantial step toward commission of the crime, or ii. come dangerously close to completing the intended crime |
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Defenses to attempt
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1. Merger (defendant cannot be convicted and punished for both attempt and the intended crime)
2. Legal Impossibility (when the acts defendant intends to commit are not a crime in the jurisdiction) |
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FACTUAL IMPOSSIBLITY
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Not a defense to attempt.
Exists when the acts defendant intended to commit would be a crime, if the facts were as defendant believed them to be. |
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SOLICITATION
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Defendant asks or requests another to commit a crime with the intent that the person actually commit the crime.
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Vicarious liability for solicitation
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If the party solicited actually commits the requested crime, the solicitor will also be liable.
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CONSPIRACY
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i. agreement
ii. with another party iii. for an unlawful objective iv. and an overt act is performed in furtherance of the unlawful objective |
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Conspiracy: agreement
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Can exist by spoken word or by conduct
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Conspiracy: with another party
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Majority: all parties must actually agree to commit the unlawful objective (2 Guilty Minds rule)
Minority: one guilty mind is enough |
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WHARTON’S RULE
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If a target crime requires two parties (e.g. dueling), there is no conspiracy unless one more party is involved.
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Conspiracy: overt act
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Just about anything qualifies—including acts of preparation (e.g. buying supplies, planning escape route, etc.)
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Conspiracy: vicarious liability
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All conspirators are liable for any crime committed by another conspirator so long as crime was
i. reasonably foreseeable; and ii. in furtherance of the conspiracy |
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Defenses to conspiracy
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1. Withdrawal
2. Impossibility |
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Conspiracy: merger
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Conspiracy does not merge with the completed crime.
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WITHDRAWAL from conspiracy
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Defendant must timely communicate to all other co-conspirators that he is no longer a participant in the conspiracy.
Defendant remains liable for the conspiracy, but not for the target crime. |
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Minority position on withdrawal from conspiracy
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If withdrawing conspirator goes to police in time to stop the target crime, conspirator will not be liable for either conspiracy or target crime.
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Parties to a crime include
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Principal
Accomplice Accessory after the fact |
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Principal
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One who with the intent to commit the crime, causes the crime to occur
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Accomplice
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One who, with the intent the crime be committed, aids, counsels, or encourages the principal (silent approval is not enough)
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Accessory after the fact
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One who, with the intent to help a felon escape or avoid arrest or trial, receives, relieves, or assists a known felon after the felony has been completed
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Liability of Accomplice
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Accomplices are liable for:
a. crimes the principal committed that the accomplice assisted, counseled, or encouraged. b. other crimes committed by the principal that were foreseeable |
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Liability of accessories after the fact
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Accessories after the fact are not liable for crimes committed by the principal.
They are guilty of “obstructing justice.” |
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DURESS
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A defendant’s criminal liability (except intentional homicide) is excused if the crime is committed under the threat of imminent death or great bodily harm
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ENTRAPMENT
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A defendant will not be liable for a crime if committed because defendant was entrapped by government officials.
Defendant must NOT BE PREDISPOSED to commit the crime prior to the contact with the government |
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REASONABLE MISTAKE OF FACT
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If defendant makes a reasonable mistake of fact, or is ignorant of a fact that negates the required mental state for the crime, defendant is not guilty of the crime.
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UNREASONABLE MISTAKE OF FACT
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If the defendant is mistaken or ignorant of a fact, but the mistake is unreasonable under the circumstances, then the mistake is a defense only if the crime is a specific intent crime.
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MISTAKE OF LAW
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Mistake or ignorance of law is no defense if charged with violation of that law
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Key defense for crimes of general intent (battery, rape, and assault)
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Reasonable mistake of fact
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Key defenses for crimes of specific intent
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Reasonable or unreasonable mistake of fact
Sometimes voluntary intoxication |
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Only defense for strict liability crimes
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Defendant performed no voluntary act
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4th Amendment
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1. Unreasonable searches and seizures
2. Exclusionary rule |
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5th Amendment
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1. Compulsory self-incrimination
2. Double jeopardy |
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6th Amendment
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1. Speedy trial
2. Public trial 3. Trial by jury 4. Confronting witnesses 5. Compulsory process 6. Assistance of counsel |
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8th Amendment
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1. Cruel and unusual punishment
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Exclusionary Rule
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"Fruit of the Poisoness Tree" Doctrine.
Evidenced resulting from an illegal search or coerced confession can be excluded. |
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Exclusionary Rule Exceptions (4th A)
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1. Fruits from statements obtained in violations of Miranda
2. Violations of knock & announce rule 3. Evidence independent of illegality (1st "I") 4. Intervening acts of free will by D (2nd "I") 5. Inevitable discovery (3rd "I") |
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Exclusionary Rule Limitations (4th A)
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1. Inapplicable to grand juries
2. Inapplicable in civil proceedings 3. Parole revocation proceedings 4. Good faith reliance on law, defective search warrant, clerical error 5. Impeachment: All illegally seized evidence may be used to impeach ONLY D's testimony |
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Harmless Error Test (4th A)
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Convictions made in light of illegal evidence will be thrown out unless the error was harmless beyond a reasonable doubt. Denial of counsel is never harmless.
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Arrests (4th A)
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1. Must be based on probable cause
2. Warrant generally not required in public, is required for nonemergency home arrests. |
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Stop and Frisk (4th A)
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1. Reasonable suspicion
2. Supported by articulance facts 3. Reasonable suspicion D is armed |
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Roadblocks (4th A)
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1. Cars must be stopped on a neutral articulable bases (every other car, etc.)
2. Must serve purpose closely related to cars and their mobility (drunk drivers but not illegal drug checks) |
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Search & Seizure strategy (4th A)
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1. Is there Governmental conduct?
2. Is there a reasonable expectation of privacy (i.e. standing)? 3. Did police have a valid search warrant? 4. If warrant is not valid, does officer's good faith defense save defective warrant? 5. If no/invalid warrant and no good faith defense, is there an exception to the warrant requriement? |
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SS1:
Governmental Conduct |
1. Publicly paid police, on/off duty
2. Private individuals acting under direction of police 3. Privately paid police NOT government conduct unless they are deputized with the ability to arrest you. |
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SS2:
Reasonable Expectation of Privacy: automatic standing to object to search |
1. If you own the premises searched
2. If you live on premises searched but aren't owner 3. Overnight invited guests |
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SS2:
Reasonable Expectation of Privacy: potential categories of standing |
1. If you own the property seized, IF you have a reasonable expectation of privacy in the item or area searched
Note: passengers in cars that don't claim to own car and don't claim to own property taken out of car have no standing to object to search of car merely because theyw ere legitimately present during search |
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SS2:
Reasonable Expectation of Privacy: no standing |
1. Sound of your voice
2. Style of your handwriting 3. Car paint 4. Account records held by bank 5. Monitoring location of your car on a public street or in your driveway 6. Anything in open fields 7. Anything that can be seen from flying over public air space 8. Garbage on curb for collection |
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SS3:
Valid Search Warrant |
1. 2 "P's": probable cause and particularity of time and place to be searched
2. Police may rely on heresay for warrant issuance 3. Informants tips can be basis for probable cause if reliable if they meet the "totality of the circumstances" test. Anonymous tips may be a part basis for probable cause. 4. Warrant must state with particularity place to be searched and things to be seized. |
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SS3:
Probable Cause (definition) |
A fair probability that contraband or evidence of a crime will be found in area searched
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SS3:
Voiding a Warrant Based on an Affadavit |
Must have:
1. A false statement was included in the affidavit by the officer applying for the warrant, AND 2. The officer intentionally or recklessly include the false statement AND 3. The false statement was material to the finding of probably cause. |
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SS4:
Good Faith Defense to Defective Warrant |
An officer's good faith reliance on a search warrant overcomes probable cause or particularity defects
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SS4:
Good Faith Defense to Defective Warrant: exceptions |
1. Affidavit underlying warrant so lacking probable cause or particularity no reasonable officer would rely on it
2. Police officer or prosecutor lied or misled magistrate to obtain warrant 3. Biased magistrate issuing warrant |
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SS5:
Exceptions to Warrant Requirement |
1. Search incident to lawful arrest
2. Automobile exception 3. Plain View 4. Consent 5. Stop and Frisk 6. Hot Pursuit & Evanescent Evidence |
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SS5:
Exceptions to Warrant (1): search incident to lawful arrest |
• Arrest must be lawful
• Arrest and search must be contemporaneous in time and place • Search is limited to areas a suspect can store a weapon (his "wingspan") |
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SS5:
Exceptions to Warrant (2): automobile exception |
• In order for police to search anyone/anybody under automobile exception, they must have probable cause (same stanard as needed to get warrant)
• If & only if before searching anything or anyone, police have probable cause, then they can search whole car without warrant and open any package or container that may reasonably contain the item they had probably cause to look for. • Probable cause for automobile exception warrantless search can arise after the car stops but must be before anything/anybody is searched! |
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SS5:
Exceptions to Warrant (3): plain view |
• If officer is legitimately present, evidence in plain view can be seized without a warrant
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SS5:
Exceptions to Warrant (4): consent |
• Consent must be voluntary and intelligent
• 3rd party consent rule: when two or more people have equal right to use a piece of property, either can consent to warrantless search, but if both are present, both must consent. |
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SS5:
Exceptions to Warrant (5): stop and frisk |
• Terry stop: brief detention for purpose of investigating suspicious conduct
• Legal standard for stopping: reasonable suspicion, which is less than probably cause • Terry frisk: pat down of outer clothing & boy to check for weapons & contraband |
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SS5:
Exceptions to Warrant (6): hot pursuit and evanescent evidence |
• Evanescent evidence: evidence that might disappear if police took time to get warrant
• Hot pursuit of fleeing felon (must be within 15 minutes). If within 15 minutes, can enter anyone's home an seize any evidence in plain view |
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Wiretapping and eavesdropping (4th A)
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• All requires warrant. Warrant requirements:
--1. Showing of probably cause --2. Suspected persons involved in conversation are named --3. Particularity the conversations to be overheard --4. Wiretap limited to short period of time --5. Wiretap terminated when desired info obtained --6. Return is made to court showing intercepted conversations • Exception: anyone can be legally wired to recor conversations ("unreliable ear") |
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Public School Searches (4th A)
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• Probable cause not required; only reasonable grounds for search. Reasonable if:
--1. Offers moderate chance of finding evidence of wrongdoing --2. The measures adopted to carry out the search are reasonably related to the objectives of the search AND --3. The search is not excessively intrusive in light of the age and gender of the student and the nature of the infaction |
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Miranda warnings (5th A)
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1. Right to remain silent
2. Anything you say can be used against you 3. You have the right to an attorney 4. Right to terminate the interrogation at any time • Protects against compelled testimonial evidence |
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Miranda warnings (5th A):
Trigger |
• Custodial interrogation. You are in custody if at the time of interrogation, you aren't free to leave (jail, police car, also home or hospital bed potentially)
• Must know you are being interrogated by a government agent • Probation interviews and routine traffic stops aren't custodial, so no warnings given and evidence can be used against you • Interrogation: any conduct where police knew or should have known that a suspect may give an incriminating response • Miranda not required for admission of spontaneous statement |
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Miranda warnings (5th A):
waiver |
• Must be knowing, voluntary & intelligent
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Right to Counsel (5th A)
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• Once D exercises right to terminate interrogation and requests attorney, police may not resume questioning on ANY matter until attorney is present
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Double Jeopardy (5th A)
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1. Jeopardy attaches in jury trial when jury is sworn in. In bench trial, attaches when first witness is sworn in.
2. Jeopardy doesn't generally attach when proceedings are civil. 3. Exceptions permitting retrial 4. Two crimes don't constitute same offense if each crime requires proof of an element the other doesn't. Being put in jeopardy for a greater offense bars retrial for any lesser included offense. 5. Multiple punishments are available for the same offense if the legislature intended so. 6. Separate Soverigns. Double jeopary bars retrial for same offense by same sovereign. State and federal government are not same sovereign. |
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Double Jeopardy (5th A):
Exceptions |
Retrial allowed if:
1. Hung jury 2. Mistrials for manifest necessity 3. Retrial after successful appeal not double jeopardy 4. Breach of agreed upon plea bargain by D. |
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Self-Incrimination (5th A)
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1. Anyone asked a question under oath in ANY kind of case where the response can incriminate him is entitled to 5th A protections. Must assert privilege first time the question is asked or may be waived. Privilege must be claimed in civil to prevent use later in crminal.
2. Only compelled testimonial evidence is protected (not physical, identification, or voluntary) 3. Unconstitutional for prosecutor to negatively comment on D's failure to testify (harmless error test applies) |
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Self-Incrimination (5th A):
Exceptions |
1. Under grant of immunity
2. No possibility of incrimination (statute of limitations has run) 3. Waiver: criminal D who takes witness stand waives the 5th A privilege as to legitimate subjects of cross examination. |
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Right to Terminate Interrogation (5th A)
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• Accused may terminate interrogation at any time prior or during investigation by invoking either right to silence or right to counsel
• Police must "scrupulously" refrain from question if either is invoked |
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Right to Counsel (6th A)
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• Offense specific. Court-assigned attorney only has to be present at questioning if D were being asked about that attorney's case.
• So, if attorney has been assigned to one crime, and D is asked about another crime and doesn't request attorney, the 6th A right to an attorney doesn't protect him • Right aplies to all critical stages of prosecution after judicial proceedings have begun (formal charges have been filed) • Only applies to misdemeanor cases where a prison sentence is imposed. Thus, if counsel is not provided, due process hasn't been violated unless a jail sentence is imposed for a misdemeanor. |
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Right to Counsel (6th A):
when applicable |
1. Custodial police interrogation
2. Post-indictment interrogation (custodial or not) 3. Preliminary hearings to determine probable cause to prosecute 4. arraignment 5. Post-charge lineups 6. Guilty plea and sentencing 7. Felony trials 8. Misdemeanor trials when imprisonment or a suspeced jail sentence is imposed 9. overnight recesses during trial 10. appeals as a matter of right 11. appeals of guilty pleas |
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Right to Counsel (6th A):
not applicable |
1. Blood sampling
2. Handwriting/voice samples 3. Precharge/investigative lineups 4. Photo identifications 5. Preliminary hearings to determine probable cause to detain 6. Brief recesses during D's testimony at trial 7. Discretionary appeals 8. Parole/probation revocation proceedings 9. post-conviction proceedings |
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Pretrial (6th A):
Identification |
• Post-charge lineups & show-ups (one on one) give rise to right to counsel (not pre-trial)
• Certain pretrial ID techniques are so suggestive and likely to produce a misidentification that they deny due process of law. • Remedy is to exclude in-court ID. This can be defeated by showing an aequate independent source for in-court ID. |
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Pretrial (6th A): Bail
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• Bail issues immediately appealable
• Preventative detention IS constitutional |
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Pretrial (6th A):
Grand Juries |
• Exclusion doesn't apply to conduct of grand juries.
• Witnesses may be compelled to testify based on illegal evidence • Proceedings of grand juries are secent; D has no right to appear, no right to send in witnesses, and no right to have counsel present • Exclusion of minorities from the grand jury is about the only defect sufficient to quash grand jury indictment |
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Right to Speedy Trial (6th A)
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• Right to speedy trial doesn't attach until D has been arrested or charged.
• Must evaluate the totality of the circumstances (length of delay, reason for delay, etc.) |
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Competency to Stand Trial (6th A)
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• Based on D's mental condition at the time of trial, if incompetent, bars trial.
• Incompetence test: --1. D lacks a rational as well as factual understanding of the charges and proceedings, OR --2. Lacks sufficient present ability to consult with his lawyer with a reasonable degree of understanding |
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Trial Proceedings (6th A)
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• Right to an unbiased judge: no financial interest in outcome of case or actual malice against D
• Right to Jury Trial • Right to effective assistance of counsel: must be deficient performance by counsel AND that but for such deficiency, the result of proceeding would have been different • Due process violation if: --1. It is unlikely that the jury gave the evidence reasonable consideration --2. The state forces D to stand trial in prison clothing --3. State compels D to stand trial visibly shackled unless necessary for safety --4. Jury is exposed to influence favorable to prosecution. |
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Right to Jury Trial (6th A)
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• Constitutional right to jury trial attaches anytime D is tried for an offense with a max sentence exceeding 6 months.
• If sum of sentences for criminal contempt exceeds 6 months, then constitutional right to jury trial attaches • Must be at least 6 jurors, and must be unanimous verdict. If 12 jurors, unanimity not required. • Cross-sectional requirement: jury poolmust reflect fair cross-section of community, but empaneled jury doesn't need to reflect cross-section. • Preemptory challenges can be used to dismiss jurors for any reason whatsoever except racial/gender discrimination |
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Ineffective Counsel (6th A)
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• Counsel is generally presumed to be effective
• D must show: --1. Deficient performance by counsel --2. But for the deficiency, the result of the proceeding would have been different (non-conviction would result or a shorter sentence) • Joint representation where attorney advises trial court of conflict of interest & court refuses to appoint separated counsel results in automatic reversal for D. |
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Right to Confront Witnesses (6th A)
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• Observe witness demeanor & opportunity to cross exam
• Not absolute: Disruptive D, co-D's confession • Implicating co-D's confession: inadmissible unless: --1. All portions referring to D can be eliminated --2. Confessing D takes stand and is cross-examined re: truth or falsity of what the statement asserts, OR --3. Confession of nontestifying co-D is being used to rebut D's claim that confession was coerced • Prior testimonial statements of unavailable witnesses inadmissible unless declarant is unavailable and D had opportunity to cross-examine declarant at time statement was made |
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Guilty Plea Waivers for right to jury trial (6th A)
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• SC won't disturb guilty pleas after sentencing
• Terms of plea bargain revealed in the record will hold both sides to specific terms of deal |
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Guilty Plea Notices from Judge (6th A)
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1. Nature of charge
2. Max and mandatory minimum penalties 3. Must be informed of right to plead not guilty and demand trial 4. All must be on record |
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Withdrawing Guilty Pleas After Sentence (6th A)
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1. Plea was involuntary (some mistake in plea taking ceremony)
2. Lack of Jurisdiction 3. Ineffective assistance of counsel 4. Failure of prosecutor to keep agreed upon plea bargain** |
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Death Penalty (8th A)
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1. Death penalty statutes must allow D to present mitigating facts
2. No statutory automatic death penlty punishment 3. State may not statutorily limit mitigating factors; all relevant mitigating evidence must be admissible 4. Only a jury (not a judge) can determine aggravating factors justifying death penalty |
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Due Process (14th A)
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1. Burden of proof on prosecution; must prove every element of crime beyond a reasonable doubt. May place burden on D for affirmative defense.
2. Unnecessarily suggestive identifications not allowed |
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Search incident to arrest: automobiles
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Police may search the interior of the auto only if:
a) arestee is unsecured and still may gain access to the interior of the vehicle; OR b) police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle. |
