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541 Cards in this Set

  • Front
  • Back

What are the 3 sources of law on the MBE?

-Common Law


-Majority Statutory Rules
Limitations on Exclusionary Rule
1) Does not apply to conduct of the grand jury
2) Does not apply to civil proceedings
3) To qualify, the search must violate either the federal constitution or a federal statute
4) Does not include to use of evidence for impeachment purposes (this includes non-Mirandized confessions and illegally seized evidence)
5) Does not apply to parole revocation proceedings
6) Does not apply to violations of the knock and announce rule
7) There is a good faith defense to exclusion at commone law when the police rely in good faith on a judicial opinion later changed, a statute or ordinance later declared unconstitutional, or a defective search warrant
For NY:
NY does NOT recognize the good faith reliance limitation

What the 4 essential elements of proving ANY crime?

-Actus Reus

-Mens Rea


-Concurrence of act and mental state
The "situs" of the crime is defined by
1. where the proscribed act (or omission) takes place
2. the place of harmful result

What are the three Incoate offenses?




Exclusionary Rule
A victim of an illegal search or coerced statement can have that search or statement excluded from subsequent prosecution. If illegal evidence is admitted, a resulting conviction should be overturned unless the government can show beyond a reasonable doubt that the error was harmless. Denial of right to counsel is never harmless.

What are the 6 defenses to crimes?


What are the typical elements of a crime?
1) act or omission(actus reus);
2) mental state (mens rea); and
3) concurence of act and mental state.

**May also require proof of a result and causation.
[Preliminary matters - Jurisdiction]

Where must a crime be prosecuted?

Anywhere where the ACT took place or the RESULT took place
Fruit of the Poisonous Tree
Excludes evidence that was obtained or derived from unlawful police action. Ways to break the chain from the original police action:
1) Demonstrate an independent source
2) Inevitable discovery
3) Intervening acts of free will on the part of the defendant
4) Live witness testimony
5) In court identification
This does NOT apply if the original police illegality is a Miranda violation - evidence resulting from that violation can be admitted.
[Preliminary matters - Burden of Proof]

What's the burden of proof for prosecution?

Beyond a reasonable doubt
Federal criminal law is governed entirely by
statute (i.e. there is no federal common law)
[Preliminary matters - Burden of Proof]

What's the burden of proof for defenses?

**Burden on PROSECUTION to DISPROVE each element of the defense Beyond a reasonable doubt

EXCEPT: Insanity - burden is on the D
Law of Arrest
Arrest warrants are generally not required prior to arresting someone in a public place but the non-emergency arrest of an individual in his own home requires an arrest warrant.
[Preliminary matters - Classification of Crimes]

What is considered a felony, and what is considered a misdemeanor?

Felony = > 1 year

Misdemeanor = anything 1 year or less
Name the 10 specific intent crimes.
1) Solicitation
2) Attempt
3) Conspiracy
4) First degree murder
5) Assault
6) Larceny and robbery
7) Burglary
8) Forgery
9) False pretenses
10) Embezzlement
[Essential Elements - Physical Act: Requirement]

What is a sufficient act to satisfy "actus reus"?

ANY Voluntary bodily movement

NOTE: Not when someone else moves you, or unconsciousness
Stationhouse Arrest
Police need probable cause to arrest you to compel you to come to the police station either for interrogation or fingerprinting
[Essential Elements - Physical Act: Omissions]

What are the basic elements that must be met before a FAILURE to act is enough to satisfy "actus reus"?

-Legal duty

-Knowledge of facts giving rise to the duty

-Ability to help
Article I of the Constitution places these two substantive limitations on both federal and state legislatures
1. No Ex Post Facto Laws
2. No Bills of Attainder
[Essential Elements - Physical Act: Omissions]

What 5 ways can there be a legal duty to act?

-Contract (babysitter)
-Status (parent/spouse)
-Voluntary assumption
-Creation of peril
Automobile Stops
Police generally need reasonable suspicion that the law is being violated to stop a car. If special law enforcement needs are involved, then the police can set up roadblocks to stop cars without individual suspicion but the roadblock must:
1) Stop cars on the basis of some neutral, articulable standard and
2) Be designed to serve purposes more closely related to a particular problem related to cars and their mobility
[Essential Elements - Physical Act: Possession]

What are the two types of possession?

What is the actus reus?
1) Voluntary physical act; or
2) Omission under a legal duty to act.
[Essential Elements - Physical Act: Possession]

What is enough to there to be actual possession?

-Control, for a long enough period for there to be

-An opportunity to terminate possession
Request for Information in NY
This is the least intrusion of police into a person's life. Police can request informaiton based on anything except a whim or caprice and the individual has the right to not respond to the request and even run away without giving probable cause for arrest.
[Essential Elements - Physical Act: Possession]

What is enough to there to be constructive possession?


Ex Post Facto Laws opertate to retroactively
1. Make criminal an act that when done was not criminal
2. Aggravate a crime or increase punishment thereafter
3. Change the rules of evidence to the detriment of criminal defendants as a class
4. Alter the law of criminal procedure to deprive substantive rights
[Essential Elements - Mental States: Common Law]

What are the 4 common law mental states?

-Specific intent
-general intent
-strict liability
Common Law Right to Inquire in NY
The police must have founded suspicion of criminal activity. They can ask questions and the detention must be brief. If the individual gives an explanation, the police must release him.
[Essential Elements - Mental States: Common Law]

What are the 11 specific intent crimes?

-1st Degree Premeditated Murder
-False Pretenses (larceny by trick)
Two provisions of the Bill of Rights not held binding on the states
1. Right to indictment by a grand jury
2. Prohibition against excessive bail
[Essential Elements - Mental States: Common Law]

What is the definition of the "malice" common law mental state?

Acting intentionally or w/ reckless disregard of an obvious or known risk
Stop and Frisk in NY
Police need reasonable suspicion. Note: if they stop a person at gun point, the police always need at least reasonable suspicion.
[Essential Elements - Mental States: Common Law]

What are the two malice common law crimes?

A Bill of Attainder is a legislative act that
Inflicts punishment or denies a privilege without a judicial trial
[Essential Elements - Mental States: Common Law]

What is the definition of the "general intent" common law mental state?

General awareness of the factors of the crime

Can be inferred simply by doing the act!
Police Pursuit in NY
This impedes the individual's freedom of movement so it must be based on a reasonable suspicion that a crime has been, is being, or is about to be committed
[Essential Elements - Mental States: Common Law]

What are the 4 general intent common law crimes?

-False Imprisonment
When can D be held liable for an omission?
1) There is a specific duty act imposed by law;
2) D has knowledge of the facts giving rise to the duty to act; and
3) It is reasonable to perform the duty.
[Essential Elements - Mental States: Common Law]

What are the two times of strict liability common law crimes?

-Public welfare crimes (alcohol to minors)

-Statutory rape
Arrest in NY
A full arrest requires probable cause that a felony or misdemeanor has been committed by the offender whether in the officer's presence or not. This does not require a warrant.
[Essential Elements - Mental States: Common Law Mistake]

What is the effect of mistake of fact on common law crimes?

Acts to negate mental state
Plain meaning rule
when stautory language is plain and the meaning is clear, the court must give effect to it
[Essential Elements - Mental States: Common Law Mistake]

What effect of any mistake on a specific intent crime?

Mistake will be a defense, even if mistake was unreasonable
Warrant of Arrest in NY
Must be subscribed by the issuing judge and contain:
1) The name of the issuing court
2) The date of the issuing court
3) The name or title of an offense charged in the underlying accusatory instrument
4) The name of the defendant to be arrested or description with reasonable certainty if the name is unknown
5) The police officer(s) to whom the warrant is addressed
6) A direction that the police officer arrest the defendant and bring him before the issuing court
[Essential Elements - Mental States: Common Law Mistake]

What effect of any mistake on a general intent or malice crime?

Mistake will be a defense, BUT only if it's a reasonable mistake
What are the two defenses for specific intent crimes?
1) voluntary intoxication
2) any mistake of fact even if unreasonable
[Essential Elements - Mental States: MPC]

Definition of purposely

Contious object to accomplish
Private Arrest in NY
A private person can make a warrantless arrest when:
1) A felony has in fact been committed by the offender or
2) Any crime has in fact been committed by the offender in the presence of the arresting private person
[Essential Elements - Mental States: MPC]

Definition of Knowingly

Awareness of actions
Ambigous statements are construed how?
In favor of defendant
[Essential Elements - Mental States: MPC]

Definition of Recklessly
Aware of a substantial and unjustifiable risk
4th Amendment Right: Government Conduct
1) Publicly paid police on or off duty
2) Any private individual working at the direction of the public police
3) Privately paid police/secuirty workers ONLY if they are deputized with the power to arrest
[Essential Elements - Mental States: MPC]

Definition of negligently

D SHOULD have known (but didn't) of the risk
What can give rise to a duty to act?
1) Statue (eg, file taxes)
2) Contract (eg, life gaurd)
3) Relationship with victim (eg, parents, spouses)
4) Voluntary assumption of care for the victim
5) Creation of peril for the victim (eg, pushing someone in river)
[Essential Elements - Mental States: MPC Mistake]

Under the MPC, a mistake of fact, even an unreasonable one, will work to negate which mental states?

Purposely, knowingly, and Recklessly
4th Amendment Right: Reasonable Expectation of Privacy
This gives you standing to object to an illegal search
Automatic standing:
1) You own the premises searched
2) You live on the premises searched, whether you own it or not
3) Overnight guests
Sometimes standing:
1) You are legitimately present when the search takes place
2) You own the property seized
Note: if you are in the car and do not claim to own the seized you do not have standing just because you were in the car and if you are on property only to do something illegal like cut up drugs for sale, you do not have standing to object to the search
For NY:
If you are in the car when a weapon is seized, you do have standing to object to the search becaues there is a presumption of possession attributed to all the passengers in the car
[Essential Elements - Mental States: MPC Mistake]

Under the MPC, a reasonable mistake of fact, will work to negate which mental states?
Purposely, knowingly, Recklessly, and Negligently
Generally there is NO MERGER EXCEPT for
1. Solicitation or Attempt
2. Lesser included offenses merge into greater offenses
[Essential Elements - Causation]

What two types of causation are needed to prove a crime?

Actual and proximate
4th Amendment Right: Things Held out to the Public
You have no right of privacy to these things which include:
1) The sound of your voice
2) The sytle of your handwriting
3) The paint on the outside of your car
4) Account records held by a bank
5) Monitoring the locaiton of your car in a public street or in your driveway
6) Anything that can be seen across the open fields
7) Anything that can be seen from flying over in the public airspace
8) The odors emanating from your luggage
9) Your garbage set out on the curb for collection
[Essential Elements - Causation: Actual]

Test for actual causation

"But for cause"

EXCEPTION: accelerating cause is enough
Fruit of the poisonous tree doctrine
All evidence obtained or derived from exploitation of illegaly obtained evidence
[Essential Elements - Causation: Proximate]

What's required for proximate cause?

D is prox cause if bad result is a natural and probable consequence of D's conduct
Valid Search Warrant
1) Probable cause
2) Must be reasonably precise on its face
3) Search of 3rd party premises is permissible as long as there is probable cause to believe that the evidence will be there
4) The warrant msut be issued by a neutral and detached magistrate (neutral and detached from the often competitive law enforcement business)
5) Only police and not private citizens may execute a warrant and it must be executed without delay - police must knock, announce their purpose and wait a reasonable time for admittance unless they have reason to suspect such announcement would be dangerous/futile/inhibit investigation
[Essential Elements - Causation: Proximate]

Effect of Eggshell victim?

Still guilty
Not a violation of Double Jeopardy where statute provides
Multiple, separate punishments for single act
[Essential Elements - Causation: Proximate]

Effect of Unforeseeable intervening event? (lightning strike after mugging)

NOT guilty
Search Warrant Informer Affidavits
Affidavits of informers are used to show probable cause and have these characteristics:
1) They need enough information about the informer for the magistrate to make a common sense evaluation of probable cause
2) The identity of the informer is not usually required
3) When the defendant attacks the validity of the affidavit, he can go "behind the face" of the affidavit
[Essential Elements - Concurrence]

Test for concurrence

Must have mental state at the same time as the act

(Issue w/ larceny and burgary)
What are the 3 mental states recognized at common law?
1) Specific intent
2) Malice
3) General intent
[Against Person/Assault & Battery - Common Law]

Common law definition of battery, including mental state

-Application of force
-Resulting in either injury or offensive touching

Mental state: General intent
Invalidity of Search Warrant Informer Affidavits
To be invalid, the defendant must show ALL of the following:
1) A false statement was included in the affidavit by the affiant (officer applying for the warrant)
2) The affiant intentionally or recklessly included the false statement and
3) The false statement was material to the finding of probable cause
[Against Person/Assault & Battery - Common Law]

Common law definition of assault, including mental state


Version 1: Attempted battery (swing and miss)

Version 2:
-Intentional creation (more than words)
-Of reasonable fear
-Of imminent bodily harm

Mental state: SPECIFIC INTENT (wants to create fear/intimidation)
Elements of a crime
1. Act
2. Intent
3. Concurrence
4. Harmful result/causation
[Against Person/Homicide - Year+Day Rule]

What is the year + day rule?

At common law, Death of victim must occur w/i year + day

(MPC does NOT have this rule)
Search Warrant Informer Affidavits in NY
A search warant must:
1) Set forth sufficient underlying facts and circumstnaces to allow the magistrate to know how the informer got her information and
2) The affidavit must establish the reliability and credibility of the informer (generally by pointing to prior success with the informer)
[Against Person/Homicide - Common Law]

Common law murder definition, including mental state

-Causing death of another
-With malice aforethought

MENTAL STATE can be one of FOUR possibilities:

-Intent to kill
-Intent to inflict great bodily harm (inferred from deadly weapon!)
-Extreme recklessness (malignant heart)
-Felony murder
What are the malice crimes?
1) Arson
2) Murder
[Against Person/Homicide - Common Law]

What's the transferred intent rule?

If D intends to harm one victim, but accidentally harms another, will be guilty of attempt to kill one, and intent will transfer to actual victim as well (only applies to completed harms)
Search Warrant Exception:
Search Incident to a Lawful Arrest
1) Arrest must be lawful
2) Search must be contemporaneous to the time and location of the arrest
3) The search must be of the individual and areas the individual could reach either to get a weapon or destroy evidence ("wingspan")
4) At the police station, police may take an inventory search of the arrestee's belongings and search impounded vehicles
[Against Person/Homicide - Common Law]

Common law definition of voluntary manslaughter

-Intentional killing of another
-In the heat of passion
-After adequate provocation
-Without time to cool off
As a physical act must be voluntary these acts are NOT considered "voluntary"
1. Conduct not the product of the actor's determination (shoved into something)
2. Reflexive or convulsive act (epileptic seizure)
3. Acts performed while unconsious or asleep (unless D knew likely to happen)
[Against Person/Homicide - Common Law]

Common law definition of INvoluntary manslaughter

-Killing w/ criminal negligence, OR

-Killing during commission of a NON-felony
Search Warrant Exception:
Automobile Exception
1) Before the police can use this exception, the police need probable cause
2) If, but only if, before ht epolice search anything or anybody then they can search without a warrant the entire car including the interior compartment and the trunk and any package/luggage/container they find within the car that could reasonably contain the item they have probable cause to be searching for, regardless of who owns the item. If they find what they are searching for, they can arrest the person searched.
The police cannot open things that could not possibly contain what they are searching for.
3) Probable cause to search teh car can arise after the car is stopped, as long as it arises befor eyou search anybody or anything
4) If a warrantless search is valid, the police may tow the vehicle to the police station and search it later
[Against Person/Homicide - Common Law]

Name 3 of the 6 Limitations of Felony Murder

-D must be guilty of the underlying felony
-Felony must be inheritly dangerous
-Felony must be separate from killing itself
-Actually during the felony or immediate flight
-Killing must be IN FURTHERANCE of felony
-Victim must not be co-felon
What constitutes specific intent?
Intent to engage in crime.
[Against Person/Homicide - MPC]

6 limitations of felony murder under MPC

Only felony murder if during commission of "BRAKES" crimes:

-Sexual Assault
Search Warrant Exception:
Plain View Seizure
Police officer must be
1) Legitimately present
2) Where he or she sees the evidence, fruits, or instrumentalities of the crime or contraband in plain view and
3) Have probable cause to believe the item is evidence, contraband, fruit, or instrumentality of the crime
[Against Person/Homicide - MPC]

MPC definition of intentional manslaughter

Similar to 'heat of passion' voluntary manslaughter under common law

-reasonable extreme emotional disturbance
Failure to act will result in criminal liability provided three requirements are satisifed
1. Legal duty to act
2. Knowledge of facts giving rise to duty (law may impose duty to learn - i.e. lifeguard)
3. Reasonably possible to perform
[Against Person/Homicide - MPC]

MPC definition of involuntary manslaughter

Reckless killing (aware of risks and contentiously disregards of them)
Search Warrant Exception:
The consent must be voluntary and intelligent
Does not work if the police say "we have a warrant, can we look around"
Police do NOT have to warn you that you have the right not to consent
Authority to Consent:
1) If 2 people have equal right to use a piece of property, either can consent.
2) Parent can consent to search son's room unless he clearly does not allow parent's entry (signs on the door, locked room, he's the only one with the key)
3) Police cannot act on the consent from one occupant if a co-occupant is present and objects to the search and the search is directed against the co-occupant
[Against Person/Confinement]

Definition of false imprisonment, with mental state

-Confinement +
-W/o consent

MENTAL STATE: general intent
Exception to the scope of the fruit of the poisonous tree doctrine
Does not apply where police illegality is a violation of Miranda1
[Against Person/Confinement]

Definition of kidnapping, with mental state

-False imprisonment +
-Moving or concealing victim

MENTAL STATE: general intent
Search Warrant Exception:
Stop and Frisk
Police must have a reasonable suspicion to stop suspects and if they think the suspect is armed they can pat them down and frisk them.
If they find weapons, they are admissible so long as the stop and frisk was reasonable.
If they find other evidence, it is admissible if it could have seemed like weapon/contraband from the outside.
[Against Person/Sex]

Definition of rape, with mental state

-W/o consent
Done by:
-Threat of force, OR
-During victim's unconsciousness

MENTAL STATE: general intent
Legal duty to act can arise from the following sources
1. Statute (file taxes)
2. Contract obligation (lifeguard)
3. Certain relationships(parent-child/spouse)
[Against Person/Sex]

Definition of statutory rape, with mental state

-W/ someone under age of consent

MENTAL STATE: strict liability
Search Warrant Exception:
Hot Pusuit and Evanescent Evidence
Evanescent Evidence:
Evidence that would disappear very quickly if took the time to get the warrant (like a scraping under the fingernails)
Hot Pursuit:
Needs to be HOT and
1) Police can pursue suspect into a private dwelling
2) Police may seize wihtout a warrant evidence likely to disappear before a warrant can be obtained
3) Contaminated food or drugs, children in trouble, burning fires may justify warrantless search or seizures
4) Warrantless entry is proper whenver hte police see someone is injured or threatened with injury
[Against Property/Theft - Common Law]

General rule for mental state required for property crimes

What are the major specific intent crimes?

B = Burglary
R = Robbery
A = Attempt
M = Murder (1st Degrees)
A = Arson
C = Conspiracy
T = Theft (Larceny, Robbery, etc)
S = Solicitation
[Against Property/Theft - Common Law]

Definition of larceny, including mental state

-W/o permission
-Taking (includes MOVING)
-Property OF ANOTHER (no right to legal possession)
-Intent to PERMANENTLY deprive

MENTAL STATE: specific intent to steal
NY Search Warrant Exception:
Lawful Arrest
Officer must suspect that the arrested person may be armed to search containers in the "wingspan" and once an occupant is removed from teh car the police may NOT remove closed containers or bags to look for weapons or other evidence
[Against Property/Theft - Common Law]

What is the erroneous takings rule?

Taking under a claim of right (thought property was his)
Voluntary assumption of care
once aid is rendered may be liable for not satisfying a reasonable standard of care
[Against Property/Theft - Common Law]

Effect of taking w/ intent to return, then later intent to keep

Concurrance problem

"Continuing trespass" exception -- will be larceny at the time D decided to keep
NY Search Warrant Exception:
Traffic Violations
NY COA says police can stop moving vehicles for "inspection" if they have reason to believe that there is a traffic violation. A stop is also valid if it is made pursuant to a roadblock at which passing vehicles are stopped uniformly and nondiscriminatorily
[Against Property/Theft - Common Law]

Definition of embezzlement, including mental state

-Conversion of property
-Already in lawful possession

Mental state: specific intent to steal/defraud
What are the general intent crimes?
All crimes not specific intent or malice
[Against Property/Theft - Common Law]

Definition of false pretenses, including mental state

-Obtaining TITLE (permanent dominion)
-False statement about PAST or PRESENT event

MENTAL STATE: specific intent to defraud
NY Search Warrant Exception:
Emergency Doctrine
1) Police must have reasonble grounds to believe that there is an emergency at hand and an immediate need for assistance for proteciton of life or property
2) The search must not be primarily motivated by intent to arrest and seize evidence and
3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched
[Against Property/Theft - Common Law]

Definition of larceny by trick, including mental state

-Obtaining something under the auspices of mere POSSESSION (lease, temporary -- ex: will take $ to another person)
-False statement about PAST or PRESENT event

MENTAL STATE: specific intent to defraud
Enumerated specific intent crimes (10 of them)
1. Solicitation
2. Attempt
3. Conspiracy
4. First degree premeditated murder
5. Assault
6. Larceny and Robbery
7. Burglary
8. Forgery
9. False Pretenses
10. Embezzlement
[Against Property/Theft - Common Law]

Definition of robbery, including mental state

-from person OR PRESENCE
-By force or threat of IMMEDIATE injury (force must be enough to overcome resistance)

MENTAL STATE: specific intent to steal
Evanescent Evidence
Any person who operates a motor vehicle shall be deemed to have given his consent to blood or chemical tests
[Against Property/Theft - Common Law]

Definition of extortion, including mental state

-with threat of FUTURE INJURY

MENTAL STATE: specific intent to steal
What mental state is required the crime when attempted is not specific?
With any charge of attempt specific intent must be proven, even though if the crime is not specific intent.
[Against Property/Theft - Common Law]

Definition of black mail, including mental state

-with threat of EMBARASSMENT

MENTAL STATE: specific intent to steal
Administrative Inspecitions and Searches
Probable cause for a warrant for inspectors to search private homes/commercial buildings is more lenient than other searches - just show a general and neutral enforcement plan.
[Against Property/Theft - Misc]

Definition of receipt of stolen property, including mental state

-Receiving possession
-Of stolen property

MENTAL STATE: with KNOWLEDGE that property was stolen
Two malice crimes
1. Common law murder
2. Arson
[Against Property/Theft - Misc]

Definition of forgery, including mental state

-Making/altering a writing
-So that it is false

MENTAL STATE: specific intent to defraud

NOTE: the mere act of making the writing is the crime -- don't have to give it to anyone
Administrative Inspecitions and Searches in NY
Warrantless impoundment and inspection of a person's vehicle is valid as an administrative search under the highly regulatory industry of motor vehicle safety
[Against Property/Theft - Misc]

Definition of uttering, including mental state

-offering as genuine
-forged instrument

MENTAL STATE: specific intent to defraud
What will break the causal chain to nullify the fruit of the poisonous tree doctrine
1. Independent source
2. Intervening act of free will by the D
3. Inevitable discovery
[Against Property/Theft - Misc]

Definition of malicious mischief, including mental state

-destroying or damaging someone else's property

Other Exceptions Permitting Warrantless Searches
1) Administrative searches to seize spoiled or contaminated food
2) Searches of businesses within a highly regulated industry
3) Inventory searches of arrestees
4) Searches of airline passengers prior to boarding
5) Searches of probationer's homes even wihtout reasonable suspicion where a statute provides that as a condition of probation the probationer agrees to searches by police or probation officers at any time, with or wihtout a warrant or probable cause
6) Searches of government employee's desk and file cabinets whereh the scope is reasonable and there is a work related need or reasonable suspicion of work related misconduct
7) Drug tests of railroad employees involved in an accident
8) Drug tests of persons seeking customs employment in positions connected with drug interdiction and
9) Drug tests of public school students who participate in extracurricular activities
[Against Property/Habitation - Burglary]

Definition of burglary, including mental state

-Breaking (minimal force)
-Home (where someone sleeps)
-Of another
-At night

Standard of proof for prosecuting malice crimes
D recklessly disregarded an obvious or high risk that the particular harmful result would occur (note: these crimes are not open to the specific intent defenses)
[Against Property/Habitation - Arson]

Definition of arson, including mental state

-Burnging of a building (Scorching IS enough)

MENTAL STATE: Malice (MPC recklessness)
Searches in Foreign Countries, Border, and International Mail
These are permitted without warrants
If officials have a reasonable suspicion that a travelr is smuggling contraband in his stomach they can detain the traveler
Roving patrols that reasonably suspect a vehicle inside the US border contians illegal aliens can stop the vehicle for questioning and border officials at fixed checkpoints inside the border can stop vehicles for quesitoning and dissemble the vehcile without reasonable suspicion
[Accomplice Liability - Definitions]

What must person to do become an accomplice, including mental state

ACT: - aid or encourage

MENTAL STATE: - intent crime be committed
What constitutes malice?
reckless disregard of an obvious or high risk that the particular harmful result will occur.
[Accomplice Liability - Scope]

Scope of accomplice liability

Full vicarious liability for all crimes

-aided and encouraged, AND
-all crimes foreseeable
Search of Parolee in NY
A parole officer can make a warrantless search of the parolee's apartment that is rationally and reasonably related to the parole officer's duties
[Accomplice Liability - Scope]

What people are NOT accomplices?

-Mere presence (must actually help)
-Mere knowledge (must have intent)
-Members of protected class
Doctrine of transferred intent is most commonly applied to (3 crimes) and does not apply to (1 crime)
Applies to: homicide, battery, and arson
DOES NOT Apply to: attempt
[Accomplice Liability - Scope]

How can an accomplice withdraw?

Encourager: Just discourage

Aider: must neutralize assistance of prevent by calling cops
Wiretapping and Eavesdropping
Requires a warrant EXCEPT for unreliable ears
For NY:
"Eavesdropping" includes "bugging" and "wiretapping" - both are felonies without a warrant or consent
Any person can record their own conversations.
Wiretap warrants are good for 30 days and the person being tapped must be informed of that within 90 days of the termination of the warrant.
If a 3rd party is incriminated by teh conversation it is admissibe if the 3rd party was not a party to the conversation and his premises or area of privacy was not invaded.
[Accomplice Liability - Accessory after the fact]

What's the definition of an accessory after the fact, including mental state

-Help felon
-With knowledge of past crime

MENTAL STATE: specific intent to help felon avoid arrest
What elements are required in a crime?
1) Actus reus
2) Mens rea
3) Concurrence between the two
4) Causal connection
5) Harm

What are the 3 Inchoate crimes?

Miranda Warnings
The Miranda warnings are the constitutional prerequisite of admissibility of any product of custodial interrogation.
The warnings are unnecessary for a spontaneous statement or "blurting out."
The right to counsel under the Miranda rights is not offense specific.
Failure to give the Miranda Warnings is a 5th Amendment violation.
[Inchoate - Solicitation]

Definition of solicitation, including mental state

-Asking someone to commit a crime

MENTAL STATE: Specific intent that crime be done

NOTE: mere asking is enough!
Formula for identifying strict liability crimes
The crime concerns administrative, regulatory, or morality issues and no adverb in the statute
[Inchoate - Conspiracy]

Definition of conspiracy, including mental state

-Agreement b/w 2 or more people to commit a crime
-Overt act (mere preparation is enough)

MENTAL STATE: Specific intent to accomplish objective (meeting of minds - TWO GUILTY MINDS)

NOTE: Crimes is the AGREEMENT
Miranda Warnings: Legal Standard for Custody
If at the time of the interrogation you are not free to leave, you are in custody. This covers the police station but also can cover your home or hospital bed if you are not free to leave.
Probation interviews and routine traffic stops are not custodial.
[Inchoate - Conspiracy]

Rule for vicarious liability for co-conspirators

Co-conspirators subject to vicarious liability if:

-acts in furtherance of conspiracy's objection
-acts were foreseeable
What are the major malice crimes?
1) Murder
2) Arson
[Inchoate - Attempt]

What two elements must exist for there to be an attempt

An act + mental state
Miranda Warnings: Legal Standard for Interrogation
Interrogation includes more than just asking questions and is defined as ANY conduct where the police knew or should ahve known that there might be a damaging statement given.
This does not include spontaneous statements.
Once the defendant asks for an attorney, all interrogation must end until the attorney is present.
[Inchoate - Attempt]

What act is required for attempt?

And act in furtherance of a crime
Under enterprise liability, corporations may be held liable under the following conditions
1. Acts within scope of office (look for agent acting on behalf of corp.)
2. Superior Agent rule (agents sufficiently high to presume acts reflect corp. policy)
[Inchoate - Attempt]

What act in furtherance must there be under MPC and under common law?

MPC: substantial step

Common law: dangerously close
Miranda Waiver
Must be knowing, voluntary and intelligent. There is no waiver based on silence or shoulder shrugging.
For NY:
If the police know or should have known that the defendant was represented by counsel, waiver is only effective if the knowing, intelligent, voluntary waiver is done in the presence of counsel.
[Inchoate - Attempt]

What mental state is required for attempt?

Specific intent to commit the crime
Limitations on the Exclusionary Rule (i.e. not applicable to what)
1. Grand Juries
2. Civil Proceedings
3. Internal Agency Rules
4. Parole Revocation proceedings
5. Good faith reliance
6. Defective search warrant
7. Clerical error
[Inchoate - Doctrines: Withdrawal]

What effect does withdrawal have on Inchoate crimes?

Common law:
-NONE -- b/c inchoate crimes are committed by the agreement/attempt/asking
-However, withdrawal with stop any new vicarious liability for co-conspirators

-D must voluntarily and completely renounce
-Renouncement must b/c change of heart, not fear of getting caught
Right to Counsel in NY
1) When the defendant is in custody and the police engages in activity overwhelming to the layperson and the defendant requests counsel or
2) At arraignment or
3) At the filing of an accusatory instrument (ex: grand jury, charge) or
4) When there has been significant judicial activity.
[Inchoate - Doctrines: Merger]

What inchoate crimes are merged, and which aren't?

Conspiracy - NOT merged

Attempt and solicitation - ARE merged
Scope of Accomplice Liability
1. The crime itself
2. All other foreseeable crimes
[Defenses - Capacity]

What are the 3 capacity defenses?

3 "I"s

Sixth Amendment Right to Counsel
When you ask for an attorney other than after hearing Miranda rights in interrogation. The Sixth Amendment right to counsel is offense specific and the attorney will only have to be present if the defendant was being asked questions about the attorney's case.
[Defenses - Capacity: Insanity]

What is the first requirement for ANY insanity defense?

D must have mental disease or defect
What are the major general intent crimes?
1) Battery
2) Rape
3) Kidnapping
4) False Imprisonment
5) Assault (threatened harm)
[Defenses - Capacity: Insanity]

NAME the 4 different insanity tests (don't give definitions)

-Irresistible impulse
Arthur Hobson Rule - NY
The length of an interrogation and custody are factors in determining the voluntariness of confessions
[Defenses - Capacity: Insanity]

M'Naughten test

-Doesn't know right from wrong
Define Accomplice
One who, WITH THE INTENT THE CRIME BE COMMITTED, aids, counsels, or encourages the principal before or during the commissions of the crime (KNOWLEDGE INSUFFICIENT)
[Defenses - Capacity: Insanity]

Irresistible impulse test

Impuse can't resist
Confessions - Infants
Attempts to keep parents from children held by police may invalidate a child's confession. There is no invalidation if there is no attempt to conceal a child or deceive the family even when the parent refused permission to see the child.
[Defenses - Capacity: Insanity]

Durham test

But for illness, would not have done
What are the non-specific intent types of murder?
All malice crimes
1) Intent to inflict serious bodily injury and ensuing death
2) Felony murder
-unintentional murder that occurs:
-during the commission of or attempted commission of an inherently dangerous felony (BARK - burg, arson, rape, robbery, kidnapping)
3) depraved heart murder/involuntary manslaughter
-depraved heart = untinentional killing by reckless conduct
-involuntary manslaughter = unintentional killing by criminal negligent act
[Defenses - Capacity: Insanity]

MPC test

M'Naughten OR Irresistible impulse:

-Doesn't know right from wrong, OR
-Impulse can't resist
Spontaneous Statement in NY
It will be admitted if it is "forced" on the police officer without any inducement, provocation or encouragement by the police.
[Defenses - Capacity: Insanity]

Distinguish insanity from incompetence

Insanity: insane at time of crime

Incompetence: insane at time of trial (result if trial is postponed)
Define Accesory After the Fact
Need a FELONY and a COMPLETED crime (usually a five yr. max sentence)
[Defenses - Capacity: Intoxication]

What effect of INvoluntary intox?

-Defense to ANY crime
-Treat like insanity
Emergency Exception to Right to Counsel in NY
When police search for a person recently disappeared, the continued questioning of suspected kidnappers need not terminate although the right to counsel has attached.
[Defenses - Capacity: Intoxication]

What effect of voluntary intox?

Only negates specific intent crimes (property crimes)

NOT a defense to arson or murder
What is general intent?
Intending to do all factors constituting the crime.
[Defenses - Capacity: Infancy]

What are the age levels for infancy under the common law and under the MPC?

Common Law:
- <7 = no prosecution
- 7-13 rebuttable presumption against prosecution
- 14 + up: prosecution allowed

- <16 no criminal prosecution
- 16 or 17: juvenile court only
Pretrial Identification: Possible means of attack
1) Right to counsel if lineup/showup is post charge. There is no right to counsel when police show victim/witness photographs.
2) If the lineup/showup is so unnecessary and substantially suggestive or unlikely to result in a mistaken identity then it denies due process of law
If you show either of the above, the lineup/showup is excluded UNLESS the prosecutor can show the witness/victim has an independent source for identification
[Defenses - Other]

What are the other 3 defenses?

Exclusions from liability
1. Members of the protected class
2. Withdrawal (before crime is actually committed)
[Defenses - Other: Self-defense]

Rule for allowed to use NON-deadly force

-Reasonably necessary
-Protect against immediate use
-against unlawful force
Requirements for Post-Charge Identification Evidence
1) Counsel was present
2) Accused waived counsel or
3) There is an independent source for the in court idetnification
[Defenses - Other: Self-defense]

Rule for allowed to use deadly force

-Reasonably necessary
-To protect against imminent threat of death or serious injury
-Not the initial aggressor
Police will NOT get the benefit of a good faith defense where
1. Affidavit so lacking in probable cause
2. Warrant defective on its face
3. Police lied/misled magistrate
4. Magistrate has wholly abandoned his judicial role
[Defenses - Other: Self-defense]

What's the exception to the not initial aggressor requirement?

-Initial aggressor withdraws and communicates withdrawal


-The victim escalates a non-deadly fight into a deadly fight
Pretrial Identification in NY
No right to counsel at "investigatory lineups" held prior to formal prosecutorial action except when:
1) Police are aware that defendant is represented by counsel on another charge and
2) Defendant explicitly requests his attorney (police must contact attorney and give him a reasonable amount of time to come to the lineup)
[Defenses - Other: Self-defense]

What is the common law and majority rule for retreat?

Majoirty rule: Retreat is NOT required

Common law: Retreat required unless:
-D cannot retreat in complete safety
-D is in his home (castle doctrine)
-D is defending against any felony risking human life
Methods of withdrawal
- encouraged:
- provided materials to assist:
- encouraged: repudiate
- provided materials: neutralize the assistance
- notify authorities; take some action to prevent
[Defenses - Other: Self-defense]

What if D is mistaken about need for self-defense?

Reasonable mistake - can use self-defense

Unreasonable mistake at common law = murder

Unreasonable mistake under MPC = "imperfect self-defense" = voluntary manslaughter
Immediately appealable and preventitve detention is constitutional
[Defenses - Other: Self-defense]

What level or force may be used to resist an UNLAWFUL arrest under MPC, and under common law?

Common law: Non-deadly force

MPC rule: NO force, unless cop is using excessive force
How can general intent be proven?
A jury may infer the required general intent merely from the doing of the act.
[Defenses - Other: Self-defense]

What level of force may a private person use to prevent a crime?

Can use NONDEADLY to prevent ANY crime

Can use DEADLY to prevent a felony risking human life
Grand Juries
Done in secret.
The defendant has no right to notice that the grand jury may be considering indicting him or to confront the victim/witnesses and a witness doesn't have a right to get the Miranda warnings or know that he may be a potential defendant.
Grand jury may base its indictment on evidence not admittable at trial.
There is no right to challenge a grand jury subpoena
If minorities are excluded from a grand jury, any conviction resulting from that indictment will be reversed regardless to harmless error
[Defenses - Other: Self-defense]

What level of force may a private person use to apprehend a criminal?

Can use NONDEADLY if crime was ACTUALLY committed + reasonable grounds

Can use DEADLY if person killed was ACTUALLY GUILTY
List the inchoate offenses (3)
1. Solicitation
2. Attempt
3. Conspiracy
[Defenses - Other: Duress]

What are the elements of duress (and exception)

D was forced to commit a crime under threat of imminent death or serious bodily harm

EXCEPTION: Duress is NOT a defense to homicide
Grand Juries in NY
1) Between 16 and 23 people, 12 must agree to indict
2) Witness who has not been granted immunity may consult with counsel but not in the grand jury room. A witness that waived immunity may be accompanied by trial to the grand jury room.
Waiver must be in writing, signed by the witness, and it must be sworn before the jury. The waiver can be limited to certain subjects.
3) Grand jury indictment in NY must be aesd on legally competent/sufficient evidence that could be used at trial
4) Any witness testifying before the grand jury gets transactional immunity unless he chooses to waive that immunity
5) If defendant requests an opportunity to testify that request will be granted as long as he waives immunity
[Defenses - Other: Entrapment]

What are the elements of entrapment

-Plan originated w/ Gov't (easy to prove)
-D was not predisposed (extremely hard to prove)

NOTE: Under PA law the focus is ONLY on conduct of police - NOT if D was predisposed

PA test is to objectively look at cops conduct to see if one who is INNOCENTLY disposed would have done it
Waiving Indictment in NY
Can waive grand jury indictment if:
1) He is being held for grand jury action
2) The crime is punishable other than by death or life imprisonment and
3) The district attorney consents
Define Solicitation
Asking someone to commit a felony with the intent that the person solicited do the crime
Grand Jury Indictments in NY
Grand Jury may indict when:
1) Evidence establishes all the elements of the crime
2) The evidence is legally sufficient and
3) The evidence establishes reasonable cause to belive the accused committed the crime
When can D be held liable via transfered intent?
When he intend harm that is actually caused, but the harm occurs to different victim or object.

**Doctrine applies to homicide, battery, and arson.
**Always results in 2 crimes, the one committed and the one attempted.
Grand Jury Dismissal in NY
If the grand jury does not indict and dismisses:
1) Defendant must be released if being held in custody upon the charge
2) The matter may not be resubmitted to the same or another grand jury unless the court allows resubmission and
3) The defendant must be notified within 90 days of filing the dismissal unless resubmission has been allowed or the court for good cause and exigent circumstances postpones giving notice
At what point is the crime of solicitation complete
At the time the solicitation is made
Right to Speedy Trial
Evaluated on totality of the circumstnaces considering:
1) Length of delay
2) Reason for delay
3) Whether defendant asserted his right and
4) Prejudice to defendant
Remedy for a violation is dismissal with prejudice.
Right to speedy trial does not attach until defendant has been arrested or charged an dprosecution cannot indefinitely suspend charges. The defendant does not need to know of the charges for the speedy trial right to attach.
How can you use excluded evidence for impeachment purposes
Evidence obtained illegaly may still be used to impeach the defendant's credibility (but no other witness)
Right to Speedy Trial in NY
If prosecution isn't ready for trial, defendant may be released from custody or have the charge dismissed, depending on the delay. Unexcused delay requires dismissal upon the defendant's motion with the exception of:
1) Homicide or
2) Sudden unavailability of material evidence
Exceptions from Time Periods:
Reasonable delay from other proceedings, continuance, absence of defendant if defendant causes delay, reasoanble delay caused by joinder of defendants, delay caused by defendant detention in another jurisdiction, delay by exceptional circumstances, and period during which action is adjourned in contemplation of dismissal
- Non-defenses to soliciation
- Potential defense
- Impossibility and withdrawal
- Exemption from intended crime (minor female not guilty of soliciting statutory rape)
Prosecutorial Duty to Disclose Exculpatory Information
Prosecution must disclose exculpatory evidence and failure to do so is grounds for reversing a conviction if defendant can prove:
1) Evidence is favorable to defendant because it is either impeachement or exculpatory evidence and
2) Prejudice has resulted
What is a strict liability offense?
One that does not require intent/awareness of all of the factors constituting the crime. (ie, no intent required... just doing the act is enough)

**statutory rape, selling liquor to minors, etc.
Defendant Notification of Use of Alibi or Insanity Defense
Defendant must notify the prosecutor if he intends to use an alibi or insantiy defense and if he uses either he must give the prosecution a list of witnesses. The prosecution must give the defendant a list of rebuttal witnesses.
Successful conspirators can be convicted of
1. The criminal conspiracy
2. The completed crime
Incompetency bars trial and is shown if defendant:
1) 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
What are the levels of mens rea?
1) Purposely: conscious object to commit crime
2) Knowingly
3) Recklessly: knows of a substantial/unjustifiable risk and disregards
4) Negligently: fails to be aware of a substantial/unjust risk
Right to Fair Trial
The 6th and 14th Amendments guarantee the right to a public trial. Pretrial proceedings can be limited and closed in circumstances but the press and public have a 1st Amendment right to attend the trial.
A judge cannot show malice agains tthe defendant or have a financial interest in a guilty verdict.
Defendants have a right to a judge that is law-trained in trials for serious crimes.
Other Due Process Violations:
1) Trial conducted in a manner makin git unlikely that the jury gave the evidence reasonable consideration
2) State compels defendant to stand trial in prison clothing
3) State compels defendant to be visibly shackled, unless there is a justification for courtroom security or preventing escape
3) The jury is exposed to influence favorable to the prosecution
Liability of one conspirator fOR crimes committed by other conspirators - two requirements
1. Crimes were committed in furtherance of the conspiracy AND
2. They were foreseeable
Right to Jury Trial
Attaches whenever defendant is tried for an offense with a maximum authorized sentence exceeding 6 months (no right to jury trial if maximum sentence is up to and including 6 months).
For criminal contempt, the sum of the sentence imposed governs.
Minimum amount of jurors is 6 and they must be unanimous, if there are more jurors, unanimity is not required.
You have a righ tto a fair cross-sectioned jury pool from your community (even though your own jury may not be cross-sectioned).
It is unconstitutional for parties to exercise preemptory challenges on account of a juror's race or gender.
Inconsistent verdicts are not reviewable
Standard for reviewing improperly obtained evidence to admit at trial
Harmless error test
Right to an Impartial Jury
1) Defendant is entiteld to question on voir dire about racial prejudice whenever race is bound up in the case or he is accused of an interracial capital crime
2) In capital punishment cases, a state may not automatically exclude for cause all lpotential jurors who express doubt or scruple about the death penalty, it must be determined that the juror's views would prevent or substantially impair performance of his duties in accordance with his instructions and oath
3) If the jury is deciding the death sentence, the defendant has the right on voir dire to ask potential jurors if they would automatically give the death penalty upon a guilty verdict and a juror who answers affirmatively must be excluded because such a juror cannot perform his duties according to instructions on mitigating circumstances
4) There is no constitutional violation if a trial court refuses to exclude for cause a juror it should exclude, and the defendnat uses a peremptory challenge to exclude the juror
Elements of Conspiracy
1. An agreement between two or more persons (need not be express, court will infer)
2. An intent to enter into an agreement
3. An intent to acheive the objective ("meeting of guilty minds")
(4). An overt act (mere preparation will suffice)
Right to Fair Trial
The 6th and 14th Amendments guarantee the right to a public trial. Pretrial proceedings can be limited and closed in circumstances but the press and public have a 1st Amendment right to attend the trial.
A judge cannot show malice agains tthe defendant or have a financial interest in a guilty verdict.
Defendants have a right to a judge that is law-trained in trials for serious crimes.
Other Due Process Violations:
1) Trial conducted in a manner makin git unlikely that the jury gave the evidence reasonable consideration
2) State compels defendant to stand trial in prison clothing
3) State compels defendant to be visibly shackled, unless there is a justification for courtroom security or preventing escape
3) The jury is exposed to influence favorable to the prosecution
What is a vicarious liability offense?
One in which a person with or without personal fault is held liable for criminal conduct of another (usually an employee).
Right to Jury Trial
Attaches whenever defendant is tried for an offense with a maximum authorized sentence exceeding 6 months (no right to jury trial if maximum sentence is up to and including 6 months).
For criminal contempt, the sum of the sentence imposed governs.
Minimum amount of jurors is 6 and they must be unanimous, if there are more jurors, unanimity is not required.
You have a righ tto a fair cross-sectioned jury pool from your community (even though your own jury may not be cross-sectioned).
It is unconstitutional for parties to exercise preemptory challenges on account of a juror's race or gender.
Inconsistent verdicts are not reviewable
Split in jurisdication regarding overt act to a conspiracry
Majority: agreement and overt act
Minority/Common law: agreement is enough
Right to an Impartial Jury
1) Defendant is entiteld to question on voir dire about racial prejudice whenever race is bound up in the case or he is accused of an interracial capital crime
2) In capital punishment cases, a state may not automatically exclude for cause all lpotential jurors who express doubt or scruple about the death penalty, it must be determined that the juror's views would prevent or substantially impair performance of his duties in accordance with his instructions and oath
3) If the jury is deciding the death sentence, the defendant has the right on voir dire to ask potential jurors if they would automatically give the death penalty upon a guilty verdict and a juror who answers affirmatively must be excluded because such a juror cannot perform his duties according to instructions on mitigating circumstances
4) There is no constitutional violation if a trial court refuses to exclude for cause a juror it should exclude, and the defendnat uses a peremptory challenge to exclude the juror
What is aiding and abetting?
GR: one who aids, consels, commands, or encourages another in the commission of a crime & is present at commission, generally guilty of aiding and abetting
EX: members the statute sought to protect generally exempt from liability
Jury Trial in NY
Prosecutor's opening statement cannot be waived.
Indictment (felonies): 12 jurors with up to 4 alternates at the discretion of the court.
Information (crimes less than felonies): 6 jurors with up to 2 alternates, and if punishment is for 6 months or less there is no jury.
Under certain circumstances, a child witness may testify from a separate room via two way closed circuit television
Withdrawal as a defense to conspiracy
Not a Defense: the crime is complete as soon as the agreement is made and the overt act taken
Challenging Jurors in NY
1) Lack of qualification (less than 18 years old)
2) Not impartial because of juror's state of mind
3) Juror is related within the 6th degree of consanguinity or afinity to the defendant, a person allegedly injured, a prospective witness, or counsel
4) Prospective juror was a party adverse to a defendant, victim, witness, or counsel in any civil action or was complained against or accused by any such person in a criminal action
5) Juror was a witness at any preliminary examination or before the grand jury or is to be a witness at trial
6) Juror served on teh grand jury or served as a juror in a prior civil or criminal action involving the same conduct charged
What is the MPC standard on intent?
It eliminates general/specific intent distinction and adopts the following categories:
1) Purposely
2) Knowingly
3) Recklessly
4) Negligently
Waiver of Jury Trial in NY
Unless indictment charges murder in the 1st degree, defendant at any time before the trial may waive a trial by jury if the waiver is:
1) In writing
2) Signed in open court
3) In the presence of the judge and
4) With the judge's approval
May limit liability for subsequent acts of other members of the conspiracy if
1. Perform an affirmative act notifying ALL members
2. Must be done in time for them to abandon their plans
Times When Defendant has a Right to be Represented by Counsel
1) Custodial Police Interrogation
2) Post-indictment Interrogation, whether 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 is actually imposed or when a suspended jail sentence is imposed
9) Overnight recesses during trial
10) Appeals as a matter of right and
11) Appeals of guilty pleas
Harmelss error test
A conviction can be upheld if the conviction would have resutled despite the improper evidence (govt. carries the burden to show harmless beyond a reasonable doubt)
Times When Defendant does NOT have a Right to be Represented by Counsel
1) Blood Sampling
2) Taking handwriting or voice samples
3) Precharge or investigative lineups
4) Photo identifications
5) Preiminary hearings to determine probable cause to detain
6) Brief recesses during the defendant's testimony at trial
7) Discretionary appeals
8) Parole and probation revocation proceedings and
9) Post-conviction Hearings
Define Attempt
The specific intent AND a substantial step beyond mere preparation
Standard for Ineffective Assistance of Counsel
Deficient performance by counsel and but for such deficiency the result of the proceeding would have been differnt.
Defendant must point to specific deficiencies and cannot raise claims based on lack of experience, time to prepare, gravity of charges, complexity of defenses, or accessibility of witnes to counsel.
Trial tactics and failure to raise a constitutional defense that is later invalidated do not constitute ineffective assistance of counsel
When does a person act purposely?
When his conscious objective is to engage in certain conduct or cause a certain result.

** purposely = to common law specific intent
Standard for Ineffective Assistance of Counsel in NY
Defendant must show:
1) Attorney failed to provide "meaningful respresentation"
2) A single error can constitute ineffective assistance, but only when the error is "sufficinetly egregious and prejudicial as to compromise a defendant's right to a fair trial"
3) The absence of any strategic explanation for the attorney's performance and
4) Citing ineffective assistance for failure to make a motion, defendant must prove that the motion had a reasonable chance of succeeding
Defenses to liability for attempt
Legal impossibility
Guilty Pleas and Plea Bargaining Generally
1) Supreme Court is unwilling to disturb guilty pleas after sentencing
2) Supreme Court has adopted the contract theory of plea bargaining - treating plea bargaining like contracts and saying the terms should be revealed at the plea taking
What are the inchoate crimes and definitions?
1) solicitation: asks, encourages, requests another to commit a crime
-does not need 2 guilty minds

2) Attempt: specific intent, close proximity substantial step
3) Conspiracy: specific intent, agreement + overt act, 2 guilty minds
Taking the Plea
Judge must tell the defendant:
1) The nature of the charge
2) The maximum authorized sentence and any mandatory minimum sentence
3) Defendant has a right to plea not guilty and demand a trial
Can D argue abandonment to attempt
General rule: it is never a defense
MPC: withdrawal will be a defense if 1.)fully voluntary and 2.) complete abandonment
Bases for Withdrawing a Guilty Plea After Sentencing
1) The plea was involuntary (mistake in plea taking)
2) Lack of jurisdiction to take the plea
3) Ineffective assistance of counsel
4) Failure of the prosecutor to keep an agreed upon plea bargain
When does a person act knowingly?
When a D is aware that his conduct is of a particular nature or knows it is very likely to cause a result.

** equivalent to common law malice
Guilty Plea in NY
At time of sentencing, judge has the discretion to allow a defendant to withdraw a plea of guilty to all or part of an indictment.
Sentencing court has the power to impose a lighter sentence than that bargained for and the prosecution can apply to withdraw consent to the plea if a lighter sentence is imposed. If the court breaks a promise which the defendant relied on when pleading, the remedy is to withdraw the plea.
Formulations of Insanity Defenses
1. M'Naghten rule
2. Irresistible Impluse Test
3. Durham Test
4. ALI/MPC Test
In NY, Defendant who Pleads Guilty can Appeal Pretrial Orders Denying Motions for Supppression of
1) Confessions
2) Evidence from illegal searches and seizures
3) Identification testimony
Defendant's right regarding admissibility of evidence
- Right to a hearing by a judge out of the presence of the jury;
- Govt must establish admissibility by a preponderance;
- Right to testify without this being used against him
Defendant has a right to counsel during sentencing.
In death penalty cases, defendant must have more of an opportunity for confrontation than in other sentencing proceedings.
Re-sentencing afer successful appeal and re-conviction generally may not be harsher.
Under the M'Naghten Rule a D is entitled to an acquittal if
Lacked the ability at the time to know the wrongfulness and understand the nature and quality of his actions
Death Penalty
1) Any death penalty statute that does not give defendant a chance to present mitigating facts and circumstances is unconstitutional
2) There can be no automatic category for imposition of the death penalty
3) States may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional
4) Only a jury and not a judge may determine the aggravating factors justifying imposing the death penalty
When does a person act recklessly?
When he knows of a substantial and unjustifiable risk and consiously disregards it.
Prisoner's Rights
1) Prison regulations impinge on due process rights only if the regulations impose "atypical and significant hardship" in relation to ordinary incidents of prison life
2) There is no 4th Amendment protection in cells (no reasonable expectation of privacy)
3) Prisoners must be given reasonable access to the courts
4) 1st Amendment rights to freedom of speech, association, and religion may be burdened by regulations reasonably related to penological interests (incoming mail can be regulated but not as much with outgoing)
5) Prisoners have a right to adequate medical care under the 8th Amendment prohibition against cruel and unusual punishment
Note: felons may be unable to vote in state elections even after released from prison
Irresistible Impulse test
D unable to control his actions or conform conduct to the law (no self control and no free choice)
Double Jeopardy
Jury trial: Attaches when jury is sworn
Judge Trial: Attaches when first witness is sworn
Civil Trials: Does NOT usually attach
Generally 2 crimes are not the same offense if each crime requires proof of an adidtional element that the other does not. Cannot try a lessor or greater offense after you tried the other one although if a victim later dies after your trial for battery, you can be tried for that murder.
Where solicitor proceeds far enough to be liable for attempt, what happens?
1) Solicitation merges with attempt
When Re-Trial is Permitted
1) Jury is unable to agree on a verdict and the jury is "hung"
2) Mistrials for manifest necessity
3) Re-trial after successful appeal
4) Breach of an agreed upon plea bargain by the defendant (plea and sentence can be vacated and original charge reinstated)
Durham Test
crime was a product of mental diseas or defect (but for the disease)
Double Jeopardy and Different Sovereigns
Different sovereigns can both try you for the same crime. Different sovereigns include 2 different state courts or the federal and state courts. But you cannot be separately prosecuted for a violation of a state and a municipality statute since they are within the same sovereign.
When does a person act with negligence?
When he fails to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care. (objective standard)
Double Jeopardy in NY
All crimes arising from a single transaction must be tried together.
A person is "prosecuted" when he is charged by an accusatory instrument filed in a court of NY or any jurisdiction within the US and the action eitehr:
1) Terminates in a conviction up on a plea of guilty or
2) Proceeds to the trial stage and a jury has been impaneled and sworn in or in teh case of trial without a jury, a witness is sworn in
ALI/MPC approach to insanity
suffered from a mental disease and as a result lacked capacity to appreciate the criminality of his conduct OR conform his conduct (combination of M'Naghten and irresistible impulse tests)
Appeals to Intermediate Appellate Court as of Right by the Defendant in NY
1) Judgment other than one including a death sentence, unless appeal is solely based on the gorund that a sentence was harsh or excessive when made on a guilty plea and the sentence did not exceed what the defendant agreed to as a condition of the plea
2) Sentence, other than death, if the sentence is either invalid as a matter of law or is harsh or excessive
3) Sentence including an order of criminal forfeiture
4) Order setting aside a sentence other htan one of deaht upon motion of the prosecution
What constitutes a seizure of the person
When a reasonable person would believe that he is not free to leave (requires a physical application of force or a submission to show of force)
Appeals to Intermediate Appellate Court as of Right by the Prosecution in NY
1) Order dismissing an accusatory instrument or count thereof
2) Trial order of dismissal
3) Order setting aside a verdict
4) Motion to set aside the verdict before sentencing
5) Sentence, other than one of death (may only be based on invalidity as a matter of law)
6) Motion made by the defense to suppress evidence
Burden of proof on insanity
Presumed sane; D must present some evidence
Exceptions Permitting Retrial in NY
A person is not deemed to have been prosecuted when:
1) Such prosecution occurred in a court which lacked jurisdiciton over the defendant or offense or
2) Such prosecution was for a lesser offense that could have been charged under the facts of the case and the prosecution was procured by defendant without the knowledge of the appropriate prosecutor, for the purposes of avoiding prosecution of the greater offense
What is the significane of concurrence of the mental fault and physical act?
D must have the necessary intent for the crime at the time he committed the act constituting the crime.
Transaction Test in NY
Defendant has to be charged with all offenses arising from any single transaction except when:
1) The offenses have substantially different elements
2) Each contains an element not in the other and is designed to prevent very different harms
3) One is criminal possession, the other is criminal use (other than sale)
4) Each involved death, injury, loss, etc to different victims
5) Violation of another jurisdiction's statute, terminated by court order in the other jurisdiction for lack of evidence as to an element not in NY crime or
6) One offense is NY RICO and the other is federal RICO
A good defense to specific intent crimes
Voluntary intoxication
Fifth Amendment Privilege Against Compelled Testimony
Anyone can assert the privilege in any case where they are asked a question under oath that the response to which may incriminate them, whether civil, criminal, administrative, or congressional
Corporations and partnerships may not use this privilege
If you ever give up the privilege on a question, it is given up for any future proceedings
What is robbery?
Larceny + assault
-Can't be guilty of robbert and one of the LIIs
Scope of the Fifth Amendment Privilege Against Compelled Testimony
It does NOT protect us from having the government use our bodies in ways to incriminate us
It does protect us against compelled testimony
Prosecutor cannot make a negative comment about a defendant's failure to testify or decision to remain silent after hearing the Miranda warnings
Voluntary intoxication is no defense to
Crimes requiring malice, recklessness or negligence, or to strict liability crimes
Elimination of the Fifth Amendment Privilege Against Compelled Testimony
1) Grant of Immunity (use and derivative use immunity - can use whatever had before the immunity)
2) There is no possibility of incrimination (SOL has run)
3) Waiver (when defendnat takes the stand)
Who are the parties to the crime under most modern statutes?
1) Principle (person who committs the offense)
2) Accomplice (person who aids or encourages the principle - active involvement)
3) Accessory (person who aids another to escape, knowing he has committed a felony)
Elimination of the Fifth Amendment Privilege Against Compelled Testimony in NY
NY grants the broader immunity of transactional immunity rather than use and derivative use immunity - immunizing you from any transaction you testify to
Establish involuntary intoxication
1. Under duress
2. Without knowledge
3. Pursuant to medical advice
Juvenile Court Proceedings Rights
1) Written notice of the charges
2) Assistane of counsel
3) Opportunity to confront and cross-examine witnesses
4) Right not to testify
5) Righ tto have "guilt" established by proof beyond a reasonable doubt
There is no right to a jury in delinquency proceedings. Pretrial detention is allowed when the juvenile is a "serious risk" to society as long as that detention is for a strictly limited to the time before the trial
If the juvenile court finds the child delinquent, jeopardy attaches and the child cannot be tried again as an adult for the same behavior
Can exclusion be raised as a remedy for violation of the "knock and announce" rule
Forfeiture Actions
Actions are brought directly against property and generally regarded as quasi-criminal.
The owner of personal property is not constitutionally entitled to notice and hearing before the proeprty is seized for purposes of a fofeiture proceeding. A hearing is required before final forfeiture of the property.
Where real property is seized, notice and an opportunity to be heard are required before the seizure of the property unless the government cna prove exigent circumstances justifying immediate seizure.
8th Amendment can apply for penal forfeitures where the forfeiture is "excessive" meaning that it is grossly disproportionate to the gravity of the offense.
Infacny is determined by
Physical age at the time of the crime
What is the scope of accomplice liability?
He is responsible for:
1) the crimes he committed or encourage the prinicipal to do; and
2) any other forseeable crimes committed by the principle in the course of committing the crime contemplated.
No criminal liability based on infancy under age
If a mock robbery results in injuries, what crime was committed?
(a) robbery
(b) larceny
(c) assault
(d) no crime
(e) robbery, larceny, and assault
(d) No crime because the mock robbery aspect negates all intent
-Robbery = larceny + assault, so couldn't be robbery + either of them
Rebuttable presumption of no criminal liability on infancy under age
What is the liabilty of an accessory?
Liable for seperate, less serious crime of being an accessory after the fact.
May use deadly force if (3 things)
1. Without fault
2. Confronted with unlawful force
3. Threatened with imminent death or great bodily harm
An arrest must be based on
Probably cause present when the officer makes the arrest
The threat of imminent death or great bodily harm (2 requirements)
1. D must reasonably believe the threat exists
2. Threat must be a present one
What mental state is required to be liable as an accomplice?
Most jurisdictions require that the person acted with the intent to encourage the crime.
Retreat from deadly force
Majority: no duty
Minority: only if could do so safely and never from home or while being robbed
To what is voluntary intoxication a defense?
The specific intent crimes + inchoate crimes
-1st degree murder, assault, larceny, robbery, burglary, forgery, false pretenses, embezzlement
Right of the agressor to use self-defense (2 requirements)
1. Must remove from fight
2. Must communicate such
Upon sudden escalation from a minor fight to one of deadly force without a chance to withdraw
Is the inability to be a principal a bar to accomplice liability?
No. (eg, a woman can be an accomplice to rape)
For defense of property
Deadly force may NEVER be used
Mistaken offense for arrest
Will not invalidate so long as officer had some other grounds on which to base probably cause
Duress is a defense to
All crimes except homicide
What is necessary for withdrawal by an accomplice to be an effective defense?
1) Repudiation if party merely encouraged;
2) Attempt to neutralize assistance or notifying the police is required otherwise;
Mistake of Fact as a defense to a specific intent crime
Any mistake will serve as a defense
What is arson?
The malicious burning of the dwelling house of another
-In a least likely answer, look for lack of malice
Mistake of Facts as a defense to malice or a general intent crime
Reasonable mistake only
Who is excluded from accomplice liability?
1) Members of the protected class
2) Necessary parties not provided for (eg, if sale but not purchase of drugs is illegal, the purchaser can't be an accomplice)
3) Party who withdraws before the crime becomes unstoppable
Mistake of Facts as a defense to strict liability
NEVER a defense
Warrant requirement for arrests
In public, generally not required, even if there is time to get a warrant
Consent as a defense
NEVER indulge consent of the victime as a defense
List the elements of battery.
-General intent
-Completed assault
Two elements to Entrapment
1. Criminal design originated with alw enforcement
2. Defendant must NOT have been PREDISPOSED to commit the crime
(vary narrowly interpreted)
Home arrest warrant requirement
Must have an arrest warrant to effect a non-emergency arrest in a home
Offenses against Person include
- Assault and Battery
- Homicide
- Voluntary Manslaughter
- Involuntary Manslaughter
- Statutory Rape
List the elements of assault.
2 theories:
1) attempted battery: reqs specific intent
2) threat of bodily injury: general intent
Define Battery
A completed assault; force to another resulting in either bodily injury or and offensive touching
What are the inchoate crimes?
1) Solicitation
2) Cospiracy
3) Attempt
State of mind for battery
Intent not required; criminal negligence sufficient
Effect of an invalid arrest on subsequent criminal prosecution
By itself, no impact; look for fruit of the poisonous tree
Aggravated Battery
- Deadly weapon
- Serious bodily injury
- Victim is a child, woman, or police officer
What are the elements of solicitation?
1) Inciting, counseling, urging, or commanding another to committ a crime,
2) with the intent that the person actually committ it.

**act is completed upon asking.
Define Assault (2 possibilities)
1. An attempt to commit a battery (specific intent)
2. Intentional creation of a reasonable apprehension (more than just words)
List the elements of homocide.
1) Intent = 4 types
a) Intent to kill
b) intent to inflict great bodily harm
c) depraved heart (highly reckless)
d) involuntary manslaughter (criminally negligent)
Common law criminal homicide subdivided into three different offenses
1. Murder
2. Voluntary Manlaughter
3. Involuntary Manslaughter
Is it a defense that the person solicited is not convicted or the offense could not have been successful?
Define Murder
Unlawful killing of a human with malice
To detain for a Stop and Frisk police must have
- Stop: Reasonable suspicion supported by articulable facts of criminal activity
- Frisk: reasonable suspicion detainee is armed and dangerous
Define Malice
1. Intent to kill
2. Intent to inflict great bodily injury
3. Reckless disregard to an unjustifiably high risk to human life
4. Intent to commit a felony
Is withdrawal a defense to solicitation?
Define Voluntary Manslaughter
Intentional killing by provocation (i.e. passion)
List the elements of manslaughter.
Voluntary: some form of passion, provoked killing
Involuntary: criminally negligent killing or unlawful act (misdemeanor murder, unenumerated felony - not BARK)
Elements of adequate provocation
1. Sudden and intense passion as an ordinary person
2. D was in fact provoked
3. Not time to cool down
4. D did not in fact cool down
Does the crime of solicitation merge?
Yes, the solicitor cannot be punished for both solicition and attempt, conspiracy, or the crime comitted.
Involuntary Manslaughter - two forms
1. Criminal Negligence
2. "Unlawful Act"/"Misdemeanor Manslaughter"
Reasonable suspicion defined
Totality of the circumstances
Involuntary Manslaughter - Criminal Negligence
Death caused by criminal negligence (some states require subjective awarenss of risk)
In VA, when is it 1st Degree murder without premeditation?
1) The following types: lying in wait, imprisoning, starving, felony murder
Involuntary Manslaughter -"Unlawful Act"/"Misdemeanor Manslaughter"
Killing caused by an unlawful act; in the commission of a misdemeanor (inherently wrong act or foreseeable)
Source of reasonable suspicion
Need not arise from officer's personal knowledge
Define Felony Murder
A killing committed during the course of a felony (malice is implied from the intent to commit the underlying felony)
What are the elements of larceny?
-Wrongful taking, AND
-Carrying away
-of tangible personal property
-of another
-by trespass (w/o consent or consent by fraud)
-w/ intent to permanently deprive (must exist at taking)
Defenses to Felony Murder
- a defense to the felony is a defense to felony murder
- felony must be independant of the killing
- death must have been forseeable (broadly interpreted)
- death must have been "caused during" the commission of the felony (includes fleeing)
- death of co-felon caused by resistance from victim or police pursuit
Informant's tip as basis for reasonable suspicion
Must be accompanied by indicia of reliability
Applicability of the year and a day rule
Outdated; mostly abolished
What are the elements of conspiracy?
1) An agreement between 2 or more persons;
2) An intent to enter into the agreement; and
3) An intent by at least 2 person to achieve the objective of the agreement
4) An overt act in furtherance (majority and NY rule)
Hastening an inevitbale result
Is a legal cause of that result
What are the elements of embezzlement?
-Of personal property
-Of another
-By a person in lawful possession of that property

--Disting from larceny--
-misappropriates property of which he's in lawful possession v. larceny where misappropriates property not in lawful possession
List Property Offenses
- Larceny
- Embezzlement
- False Pretenses
- Robbery
What is necessary for an agreement in a conspiracy?
The parties must agree to accomplish the same objective by mutual action.

**can be infered from joint activity
List Offenses against Habitation
- Burglary
- Arson
Development of probable cause
- Invesitgatory detention
- Probable cause
- Arrest
- Full search incident to arrest
Elements of Larceny (possession not title)
1. a taking (D takes control)
2. and carrying away
3. of tangible personal property
4. of another (someone with a superior possessory interest)
5. by trespass
6. with intent to permanently deprive
What is the Wharton Rule?
Where 2 or more people are necessary for commission of the offense (eg, adultery) there is no crime unless more parties agree to the crime than necessary.
Larency among joint owners or against abandoned property
Cannot be committed
What are the elements of kidnapping?
-Unlawful confinement
-involving either some movement of victim or
-concealment in a secret place
Larceny of lost or mislaid property
Considered constructively in the owner's possession
What is the conspiracy rule regarding protected classes?
The nonprotected person cannot be guilty if the agreement was only with the protected person.
Embezzlement generally requires
1. The fraudulent
2. Conversion (manner inconsistent with trust arrangment; need not benefit D)
3. Of Property (real property and services not included)
4. Of Another
5. By a person is lawful possession
Authority to use roadblocks
1. Must stop cars on the basis of some neutral, articulable standard (every third car)
2. Be designed to serve purpose closely related to a particular problem related to autos and their mobility
False Pretenses general consists of
1. Obtaining title
2. To the property of another
3. By an intentional (or knowing) false statement of past or existing fact
4. With intent to defraud
What is the effect of acquital of some conspirators?
If D is charged and all others have been acquitted, D cannot be convicted.
Robbery (larceny + assualt) consists of
1. A taking
2. Of personal property of another
3. From the other's person or presence (broadly construed)
4. By force or intimidation (threat of imminent harm)
5. With the intent to permanently deprive
What are the elements of rape?
-Unlawful carnal knowledge
-of a woman
-by a man, not her husband
-without her effective consent
Aggravated Robbery
Robbery with a deadly weapon
Can a person conspire with an undercover police officer?
Generally No, because only D intended that the object crime be completed.
Extortion disinguished from Robbery
- future rather than imminent harm
- don't have to take anything from the person or his presence
Validity of pretextual stops
Valid to stop where traffic law violted even where ultimate motive is to investigate whether some other law violated
Elements of Burglary (common law)
1. A Breaking
2. And Entry
3. Of the Dwelling
4. Of Another
5. At Night
6. With the Intent to commit a felony therein
What is the MPC approach to conspiracy?
D can be convicted of conspiracy regardless of whether the other parties have all been acquited or were feigning agreement.
Breaking requirement for burglary
- minimal force sufficent; can be constructive (i.e. fraud, threat); must be a trespass; must be to gain entry
What are the elements of false imprisonment?
-Unlawful confinement
-of a person
-without his valid consent
Elements of Arson
1. Malicious
2. Burning
3. Of the Dwelling
4. Of Another
What intent is required for conspiracy?
Specific intent to:
1) agree
2) achieve the object of the conspiracy.
Detention to obtain warrant
If probable cause exists police may detain person from house to get warrant to search
What is the scope of a conspirator's liability?
May be liable for crimes of other conspirators if:
1) They were committed in furtherance of the objective of the conspiracy; and
2) They were foreseeable.
What are the elements of false pretenses?
-obtaining title
-to personal property of another
-by an intentional false statement of past/existing fact (not future fact)
-with intent to defraud the other
When does the conspiracy terminate?
Upon completion of the wrongful objective.
Does the D have a Fourth Amendment right
1. Was there govt. conduct
2. Did D have a reasonable expectation of privacy
3. If so, did police have a valid warrant
4. No valid warrant - did police make a valid warrantless search/seizure (6 possibilities)
Is withdrawal a defense to conspiracy?
No, but may be a defense to crimes in furtherance of the conspiracy and the target crime.
What are the elements of robbery?
-a taking
-of personal property of another
-from the other's person or presence
-by force or threats of immediate death or injury
-with the intent to permanently deprive
Does the merger doctrine apply to conspiracy?
No, there's no merger.
Government conduct (2)
1. Publicly paid officers
2. Citizens acting at their direction
What are the elements of burglary?
-a breaking
-and entry
-of a dwelling
-of another
-at nighttime
-with the intent to commit a felony in the structure
Legitimate expectation of privacy where (3); (automatically confers standing)
1. Owned or had a right to possess place searched
2. Place searched was in fact person's home
3. Overnight guest
What are the elements of arson?
-of the dwelling
-of another

DAMAGE REQUIRED greater than mere blackening--charring is sufficient
May have standing where (2)
1. Ownership of property seized
2. Present at search
What are the elements of attempt?
1) An overt act
2) Done with intent to commit a crime
3) That falls short of completing the crime
Things held out to the public
1. Sound of your voice
2. Handwriting
3. Paint on car
4. Smell of luggage
5. Account records at bank
6. Car's movement
7. Anything visible in open fields
8. Anything visible from a flyover
9. Garbage set out on curb for collection
What is the mental state required for attempt?
An attempt always requires a specific intent.

**Regardless of the intent necessary for the completed offense
Dog sniffs at traffic stops
Okay so long as does not extend beyond time to issue ticket and conduct ordinary inquiries incident to stop
What will constitute an overt act for attempt?
D must committ an act beyond mere preparation, as easured by the proximity test or the substanial step test.
Technologically enhances search of homes
Issue: is the technology in question in general public use
What is the proximity test for attempt?
The act must be dangerously close to completion of the crime. (traditional view)
Requirments of a Warrant
1. Issued by a Neutral and Detached Magistrate
2. Based on Probable Cause
3. Particularly describes the place and items
What is the substanial step test?
For attempt, the act must be a substantial step in a course of conduct planned to culminate in the commission of the crime that strongly corroborates criminal purpose (modern view).
Anticipatory probable cause
Sufficient that there is reason to believe seizable evidence will be found when search is conducted
Is impossibilty of success a defense to attempt?
Factual impossibility is not. (eg, couldn't rob someone because they had no money)

Legal impossibility is a defense. (eg, it isn't a crime to do what D intended).
Use of informers to establish probable cause - sufficiency established by
Totality of the circumstances; reliability, credibility NOT a prerequisite
Is abandonment a defense to attempt?
Abandonment is not a defense if D had the intent and did the overt act.
Identity of informer
May remain anonymous
Does the merger doctrine apply for attempt?
Yes, attempt merges with the completed crime.
A search warrant will be invalid where D establishes (3)
1. Affidavit included False Statment of officer filing
2. Affiant Intentionally or Recklessly include such statement
3. False statement was Material to finding probable cause
Validity of imprecise warrant based on precise affidavit
Not valid; Warrant must be precise on its face
Neutral and detached magistrate requirement
- State attorney general NOT
- Clerk of court may issue for violations of city ordinances
Execution of warrant (6)
1. By police
2. Without unreasonable delay
3. Must knock and accounce
4. May seize any contraband product of search
5. CANNOT search persons on premises not named in warrant (unless probable cause arises)
6. Implicit authority for limited detention of persons on premises
What are the defenses negating criminal capacity?
1) Insanity
2) Intoxication
3) Infancy
"Knock and Announce" Rule and exception
15-20 second delay UNLESS it would be dangerous/futile/would inhibit the investigation
What are the tests used to determine whether D was so mentally ill as to be acquitted?
1) M'Naghten Rule
2) Irresistible impulse test
3) Durham test
4) MPC Test (aka ALI)
Exceptions to the warrant requirement
1. Search incident to a lawful arrest
2. Automobile exception
3. Plain view
4. Consent
5. Stop and Frisk
6. Hot Pursuit, Evanescent evidence, and other Emergencies
What is the M'Naghten rule for insanity?
D does not know right from wrong
Scope of search incident to a lawful arrest
Withous a warrant: Wingspan and protective sweep for accomplices (must be contemporaneous in time and place)
What is the irresistible impulse test?
D is unable to control his actions/impulses
Scope of search of auto incident to lawful arrest
Passenger compartment (including containers) but NOT the trunk (must be contemporaneous in time and place)
What is the Durham test for insanity?
But for the mental illness, D would not have done the act.

** broader than irresistible impulse or M'naghten rule.
Scope of search incident to incarceration
an arrestee's personal belongings and an entire impounded vehicle
What is the MPC test for insanity?
1) D didn't know right from wrong, or
2) D couldnt control his actions

**really just a combo of irresistible impulse and m'naghten.
Search of Auto without warrant
Probable cause it contains contraband (same level as needed to get a search warrant)
Scope of search of Auto based on full probable cause
Entire vehicle (including trunk) and any containers within the vehicle that may contain the suspected contraband
Who bears the burden of proof on sanity?
D must raise the issue, but jurisdictions are split on who has the burden of proof on the issue.
Contemporaneous requirment for search of autos
Not required - vehicle may be towed
What does due process require regarding insanity?
D may not be tried or convicted, if due to mental defect he can not:
1) Understand the nature of the proceedings against him; or
2) Assist in his defense.
Plain View Doctrine
1. Legitimately on the premises
2. Discover evidence, fruits or instrumentalities of crime or contraband
3. Such evidence is in plain view
4. Have probable cause the item is contraband
What is the diminished capacity defense?
D need only show that his mental defect prevented him from having the requisite mental state for the crime.

**Only some states recognize this defense
Consent to false announcement of a warrant
Negates the consent - no authority to search
Who may consent
Any person with an apparent equal right to use or occupy the property
What is the defense of intoxication?
D may raise it if intoxication negates one of the elements of the crime.

** important to distinquish between voluntary and involuntary intoxication
Scope of search based on consent
Limited to those areas to which a reasonable person under the circumstances would believe it extends
What is the effect of voluntary intoxication?
It acts only as a defense to specific intent crimes.
Scope of search incident to Stop and Frisk
Pat down of outer clothing
What is the effect of involuntary intoxication?
It is treated as a mental illness, and defendant is acquited if she meets the jurisdiction's insanity test.
Scope of search of auto incident to a properly stopped traffic violation
- May remove driver from car and
- IF reasonable belief person is dangerous
- May search area limited to those in which a weapon may be placed or hidden
What is the modern rule regarding the defense of infancy?
Under most mondern statutes, no child can be convicted of an adult crime until age 13 or 14.
Seizure based on Plain Feel
Incident to a Terry stop, officer may seize any item reasonably believes is contraband based on its "plain feel"
Hot pusuit exception
Officers in hot pursuit of a Fleeing Felon may make a warranltess search and seizure (even into a dwelling)
What are the exculpatory defenses?
1) Justification
2) Duress
3) Mistake of fact
4) Mistake of law
5) Consent
6) Entrapment
Evanescent Evidence Exception
police may seize without a warrant evidence likely to disappear before a warrant can be obtained
What is the defense of justification?
Although D committed a proscibed act he should not be pusished because the circumstances justify the crime.
Standard required for administrative searches (and two exceptions)
- Need a showing of a general and neutral enforcement plan to secure warrant
- EXCEPTIONS: contaminated food and highly regulated industries
What are the sub-defenses of justification?
1) Self defense
2) Defense of others
3) Defense of a dwelling
4) Defense of other property
5) Crime prevention
6) Use of Force to Effectuate Arrest
7) Resisting improper arrest
8) Necessity
9) Public policy
10) Domestic Authority
Public school searches
Do not need a warrant or probable cause; only reasonable grounds for the search
Searches on probationers
Where statute provides that probationer consents Court has upheld search of person and home even where no reasonable suspicion
When may a person use non-deadly force in self defense?
A person without fault may use force reasonably necessary to protect himself from imminent unlawful force.

** No duty to retrat
Warrant authorizing a wiretap must meet the following requirements (6)
1. Probable cause of a specific crime
2. Suspected persons to be heard are specifically named
3. Describes with particularity
4. Limited to short duration
5. Provisions for termination
6. Return to court to show conservations intercepted
When may a person use deadly force in self defense?
1) He is without fault
2) He is confronted with unlawful force; and
3) He is threatend with imminent death or great bodily harm

**Majority holds no duty to retreat
How to balance the reasonableness of searches into a persons body
Balance society's need for the evidence against the magnitude of intrusion
Voluntariness of confessions determined in light of
Totality of circumstances
Right to counsel applies to what parts of a criminal prosecution
All critical stages - adversairal judicial proceedings
When may an agressor use self defense?
Only if:
1) He effectively withdraws from the altercation and communicates desire to do so; or
2) V suddenly escalate a minor fight into a deadly altercation and he has no chance to withdraw
Right to counsel is offense
When may a person use defense of others?
May defend others if he reasonably believes that the person has legal right to use force.
Blockburger Test for "different offenses"
Different if each requires proof of an additional element that the other crime does not
When may defense of dwelling be used?
1) Nondeadly force may be used to prevent or terminate what is reasonably regarded as unlawful entry int D's dwelling
2) Deadly force may only be used to protect the saftey of the inhabitant rather that the dwelling itself.
As a prerequisite to the admissibility of any statement made by the accused during a custodial interrogation there must be (2)
1. Miranda warnings
2. Valid waiver
When can defense of property be used?
Nondeadly force may be used to defend property in one's possession from unlawful interference.

**Unless a request to desist would suffice.
Need for Miranda warnings triggered by
1. Custody
2. Interrogation
When can crime prevention be used as a defense?
1) Nondeadly force may be used to the extent it reasonably appears necessary to preve a felony or serious breach of peace.
2) Deadly force can only be used to terminate or prevent a dangerous felony involving risk to human life
Waiver of Miranda warnings
Must be knowing, voluntary, and intelligent; look at totality of circumstances; will not be presumed from silence
When can police use force effectuate an arrest?
1) Nondeadly force if it reasonably appears necessary, or
2) Deadly force if it is necessary to prevent a felon's escape.
Limtitation on scope of Miranda warnings
Inapplicable to grand jury hearing
When can a private person use force effectuate an arrest?
1) Nondeadly force if a crime was in fact committed and he has reasonable grounds to believe the person arrested did it
2) Deadly force only if the person harmed was actually guilty
Differentiate between Right to Remain Silent and Right to Counsel
- Silent: all questioning related to the particular crime must stop
- Counsel: all questioning must cease (not offense specific)
When can person use force to resist arrest?
1) Nondeadly force to resist an improper arrest even if he knows its an officer
2) Deadly force to only if a person does not know its an officer arresting
Amiguity of request
Must be unambiguous; police may continute to interrogate until unambiguous request is made
What is the defense of necessity?
It is a defense that the person reasonably believed the crime was necessary to prevent imminent and greater injury.

**no right to cause death of others, no right if D created the situation.
Statements obtained in violation of Miranda, but otherwise voluntary may be used how
To impeach defendant's trial testimony
What is the defense of duress?
It is a defense to a crime other than a homicide that the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family.
Involuntary confessions
Inadmissible for any purpose
When is mistake or ingonrance of fact a defense?
Relevant to criminal liability only if it shows that D lacked the state of mind required for the crime.

**mistake need only be a reasonable one for non-specif intent crimes
Public safety exception to Miranda
If police interrogation is reasonably prompted by concern for public safety, questions obtained in violation of Miranda may be used in court (scope unclear, probably limited)
When mistake of law of law a defense?
Generally never.
When does 6th Amendment Right to Counsel exist
At any pot-charge lineup or showup; NOT for a photo identification
What are the exceptions to mistake of law rule?
1) Reliance on an atty may negate mental element
2) The statute proscribing conduct was not published
3) Reasonable reliance on a judical decision
4) Reliance on offical interpetation of advice
Due Process standard relating to identification
- Unnecessarily suggestive
- Substantial likelihood of misidentification
(a difficult test to meet)
What is the defense of entrapment?
Exists only if
1) the criminal design originated w/ officers; and
2) D was not predisposed to commit the crime

**very difficult defense to established b/c D will be found predisposed
Remedy for an unconstitutional identification
Exclusion of the in-court identication; severe and rarely granted
Refusal to grant bail or the setting of excessive bail appealable when
Constitutionality of pretrial detention
Not a violation of due process
What are the offenses against the person?
1) Battery
2) Assualt
3) Mayhem
4) Homicide
5) False Imprisonment
6) Kidknapping
Defendant's lack of access regarding grand juries (4)
- No right to notice
- No right to be present
- No right to introduce evidence
- No right to counsel or Miranda
What is battery?
1) Unlawful application of force to the person of another,
2) resulting in either bodily injury or an offensive touching.

** Need not be intentional and need not be directly applied.
Right to unbiased judge
Violation of due process where judge shown to have
- Actual Malice
- Financial Interest
What is aggrivated battery?
Most jurisdiction treat the following as felonies:
1) Battery with a deadly weapon
2) Battery resulting in serious bodily harm
3) Battery of child, female, or officer.
Right to trial by jury limited to what kind/level of offense
Serious offenses only - imprisonment for over 6 months
What is assualt?
1) an attempt to commit a battery, or
2) the intentional creation of a reasonable apprehension in the mind of the victim of
Minimum number of jurors required
Six (must be unanimous)
What is mayhem?
Old common law crime of disablement of a body part, now treat as a form of aggrivated battery.
Unanimity of jury
No right to a unanimous verdict (9-3 okay)
What are the 3 common law categories of homicide?
1) Murder
2) Voluntary manslaughter
3) Involuntary maslaughter
Venire must be selected from
A representative corss-section of the community
What is murder?
The unlawful killing with malice aforethought.
Preemptory challenge limited by Equal Protection clause how
Forbids use of preemptory challenge to exlcude based on race or gender
What constitutes malice aforethought?
1) Intent to kill;
2) Intent to inflict great bodily injury;
3) Reckless indifference to an unjustifiably high risk to human life; or
4) Intent to commit a felony.
Effective assistance of counsel right extends to
First right of appeal
What is voluntary manslaughter?
A killing that would be murder but for the existence of adequate provocation.
Circumstances constituting ineffective assistance of counsel
1. Deficient performance
2. Result of the proceeding would have been different
What is adequate provocation?
1) Provacation that would arouse sudden and intense passion in a ordinary person;
2) D was in fact provoked;
3) No sufficient time for a reasonable person to cool off; and
4) D did not actually cool off.
Basis for an attack on a guilty plea after sentence
1. Plea involuntary
2. Lack of jurisdiction
3. Ineffective assitance of counsel
4. Failure to keep the plea bargain
What are the statutory degrees of murder?
1) First degree: Decision made in a cool and dispasionate manner.
2) Second degree: Anything that's not first degree.
Failure of death penalty statute to provide D opporutunity to show mitigating factors is
Any automatic category for imposition of death penalty is
Any limits on number of mitigating factors presentable in death case
Trier of fact to determine aggravating factors justifying imposition of death must be
Jury (not a judge)
Jeopardy attaches for jury trials
Empaneling and swearing in of the jury
Jeopardy attaches for bench trials
When the first witness is sworn
What is felony murder?
Murder commited during certian felonies, which will constitute first degree murder.

**Felony must be distinct from the killing and death must be a foreseeable result.
Jeopardy in civil proceedings
Generally does NOT attach
What felony will be sufficient for felony murder?
Most common list includes:
1) Arson,
2) Robbery,
3) Burglary,
4) Rape,
5) Kidknapping
Exceptions permitting retrial
1. Hung jury
2. Mistrial for manifest necessity
3. Retrial after succesful appeal
4. Breach of plea bargaining
What is false imprisonment?
1) unlawful confinement of a person
2) without his valid consent.

**It is not confinement to simply prevent a person from going where she desires to go, as long as alternative routes are available to her.
Breach of plea bargain by D allows prosecutor to
Reinstate original charges
What is kidnapping?
Unlawful confinement of a person that involves either:
1) some movement of the victim, or
2) concealment of the victim in a “secret” place.
Exception to bar against retrial for lesser included offense or greater offense
New evidence
What is aggravated kidnapping?
1) kidnapping for ransom;
2) kidnapping for the purpose of comiitting other crimes;
3) kidnapping for offensive purposes; or
4) child stealing.
Effect in criminal proceeding of failure to claim privilege against self incrimination in civil matter
Privilege waived
What are the offenses against property?
1) Larceny
2) Embezzlement
3) False pretenses
4) Robbery
5) Receipt of stolen property
6) Theft
7) Forgery
8) Malicious mischief
Scope of protection against self incrimination limited to
Testimonial evidence; physical evidence not protected
What is Larceny?
1) A taking (obtaining control);
2) And carrying away (asportation);
3) Of tangible personal property;
4) Of another with possession;
5) By trespass (without consent or by consent induced by fraud);
6) With intent to permanently deprive that person of her interest in the property.
Elimination of the privilege against self-incrimination (3 means)
1. Grant of immunity
2. No possibility of incrimination (statute of limitations has run)
3. Scope of immunity
What is embezzlement?
1) The fraudulent;
2) Conversion (i.e., dealing with the property in a manner inconsistent with the arrangement by which defendant has possession);
3) Of personal property;
4) Of another;
5) By a person in lawful possesion of that property.

**Different from larceny because D is in rightful possession when he misappropriates, while D is not in possession in larceny.
What is false pretenses?
1) Obtaining title;
2) To personal property of another;
3) By an intentional false statement of past or existing fact;
4) With intent to defraud the other.
What is the difference between larceny and false pretenses?
If the victim is tricked into giving up possession it's larceny. If tricked into giving up title, its false pretenses.
What is robbery?
1) A taking;
2) Of personal property of another;
3) From the other’s person or presence (including anywhere in his vicinity);
4) By force or threats of immediate death or physical injury to the victim, a member of his family, or some person in the victim’s presence;
What is extortion?
Often consists of obtaining property by means of threats to do harm or to expose information.

**some statues do not actually require obtaining the property. Different from robbery b/c it can be future threats and need not be in V's presence.
What is receipt of stolen property?
1) Receiving possession and control;
2) Of "stolen" personal property;
3) Known to have been obtained in a manner constituting a criminal offense;
4) By another person;
5) With the intent to permanently deprive the owner of his interest in it.

**Note, intent and act must be concurrent (eg, you must know it's stolen when you take it.)
What is theft?
Under many modern statutes, some or all of the above property offenses are combined and defined as the crime of “theft.”
What is forgery?
1) Making or altering (by drafting, adding, deleting);
2) A writing with apparent legal significance;
3) So that it is false; (i.e., representing that it is something that it is not)
4) With intent to defraud.

**No one need actually be defrauded. If 3rd person is caused to sign but doesn't realize he's signging it's forgery. If he realizes he's signing it, it's not forgery.
What is malicious mischief?
1) The malicious;
2) Destruction of or damage to;
3) Property of another.
What are the offenses against habitation?
1) Burglary
2) Arson
What is burglary
1) A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation);
2) And entry (placing any portion of the body or any instrument used to commit the crime into the structure);
3) Of a dwelling (a structure used with regularity for sleeping purposes, even if used for other purposes such as conducting a business);
4) Of another (ownership is irrelevant; occupancy by someone other than defendant is all that is required);
5) At nighttime;
6) With the intent to commit a felony in the structure (felony need not be carried out to constitute burglary).
When must the intent to commit a felony be present for burglary?
At the time of entry.
What is arson?
1) The malicious (i.e., intentional or with reckless disregard of an obvious risk);
2) Burning (requiring some damage to the structure caused by fire);
3) Of the dwelling;
4) Of another.

**MBE Q's often assume that arson extends to structures other than dwellings.
Will an explosion constitute arson?
No, the damage must be caused by fire.
When does an accomplice have an affirmative defense to felony murder?
(1) he did not commit or aid in the commission of the homicidal act;
(2) he was not armed with a deadly weapon or substance;
(3) he had no reasonable grounds to believe others were armed with deadly weapons or substances; and
(4) he had no reason to believe any participant intended to engage in conduct likely to result in death.