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118 Cards in this Set

  • Front
  • Back
Jurisdiction
• Jurisdiction: criminal law jurisdiction is territorial. Crime can be prosecuted in any state where act that was part of crime took place OR in any state where result took place.
Burden of proof
• Burden of proof: prosecution must prove each element of crime beyond a reasonable doubt.
○ Defense: once D raises defense, prosecution must disprove each element of defense beyond reasonable doubt.
§ Common law exception: in most state, for insanity defense, burden on D by preponderance of evidence.
§ NY distinction divides defenses into two categories:
□ Defenses: prosecution must prove beyond reasonable doubt.
□ Affirmative defenses: D must prove by preponderance
Classification of crimes
• Classification of crimes:
○ Felony: crime that MAY be punished by 1 year in prison
○ Misdemeanor: crime for which maximum punishment may not exceed one year in prison.
Elements of crimes: ACT
Physical act: voluntary bodily movement.
• NOT an act: sleepwalking, reflex or convulsion, when someone else has moved D.
• Liability for failure to act (Omissions rule) requires:
○ Legal duty to act: 1) by statute (tax returns, professional reporting child abuse); 2) contract (informal babysitter, doctor, lifeguard); 3) status relationship (only parent, spouse); 4) voluntary assumption of care by D for victim; 5) creation of peril by D.
○ Knowledge of facts that give rise to the duty to act
○ Reasonably possible to perform duty (ability to help)--red herring because many ways to help.
Common law mental states
• Common law Mental states
○ Specific intent: when crime requires not just desire to do act, but also desire to achieve result.
§ Assault: intend injury; Murder in first degree; Larceny: intend to steal; Embezzlement; False pretenses; Robbery; Forgery; Burglary; Solicitation; conspiracy, attempt (mostly crimes against property)
○ Malice: when D acts intentionally or with reckless disregard of obvious or known risk
§ Murder and arson
○ General intent: D need only be generally aware of factors constituting crime; need not intend specific result. Jury can usually infer general intent from doing of act.
§ Battery, false imprisonment, kidnapping, forcible rape--crimes against person.
○ Strict liability: crime requires simply doing act, no mental state is need
§ Public welfare: regulatory or morality offenses that typically carry small penalties: selling alcohol to minor, contaminated food, corrupting morals of minor.
§ Statutory rape: have sex with someone who is under age of consent.
Common law mistake of fact
• Mistake of fact
○ Specific intent, any mistake (even an unreasonable one) is a defense
○ General intent, only reasonable mistakes are a defense
○ Strict liability, mistake is never a defense.
○ Reasonable mistake is defense to any crime except strict liability; unreasonable mistake is defense only to specific intent crimes
Common law mistake of law
• Mistake of law: is not a defense.
○ Exceptions:
§ If statue specifically makes knowledge of law an element of crime (selling gun to known felon)
§ Statute was not published
§ D reasonably relied on statute or judicial decision that was declared unconstitutional or was overruled
§ D reasonably relied on official interpretation or advice from someone charged with enforcement, administration or interpretation of law
□ Erroneous advice from private attorney is not defense to prosecution
• NY mental states
○ Intent: when it is D's conscious object
○ Knowingly: when D is aware of what he is doing
○ Reckless: when D is aware of a risk that is substantial and unjustifiable and he consciously disregards it.
○ Negligence: when D should have known about a substantial and unjustifiable risk.
○ Strict liability: No mental state required
NY mistake of law and fact
• Mistake: mistake of fact will be defense if mistake negates require mental state
○ For crimes of purpose, knowledge or recklessness, a mistake of fact (even unreasonable one) will often be defense.
○ For crimes of negligence, only a reasonable mistake will be a defense
○ For strict liability crimes, mistake of fact will not be defense, no matter how reasonable it is.
• Mistake of law is not a defense (similar to common law).
Causation
• Actual causation: if bad result would not have happened "but for" D's conduct.
○ Accelerating cause is actual cause: going to die in 5 minutes, still cause if shoot and kill instantly
• Proximate causation: if bad result is natural and probable consequence of D's conduct. Key concepts are foreseeability and fairness.
○ Egg shell victims: D will be proximate cause even if victim's preexisting weakness contributed to bad result
○ Intervening event: D not proximate cause if unforeseeable intervening event (ordinary medical malpractice and negligence generally are foreseeable)
Concurrence
Concurrence
• D must have mental state at same time as he engages in the act.
• Arises most frequently with larceny and burglary.
Common law battery
• Battery: unlawful application of force to another resulting in either bodily injury or offensive touching
○ Mental state: general intent
Common law assault
• Assault:
○ Attempted battery (swing and a miss) OR
○ Intentional creation other than by mere words of a reasonable apprehension in mind of victim of imminent bodily harm.
○ Mental state: specific intent.
Common law aggravated assault
• Aggravated assault and battery: many state provide that assault or battery will be more serious if: a weapon is used; victim is child, elderly, handicapped or otherwise vulnerable OR intent is to commit a robbery or rape.
New York Assault
• Assault in NY: intentionally causing physical injury to another person. (Combine battery and assault into one crime in NY)
○ Degrees of crimes in NY (educated guess): Aggravating factors: weapons, physical injury (substantial pain), serious physical injury (permanent, life-threatening OR requires long hospitalization), quantity (money, drugs).
○ 2nd degree assault in NY: intentionally causing serious physical injury
§ 1st degree assault: add weapon
§ 3rd degree assault: intentionally causing physical injury
○ Battery is not separate crime in NY: all versions of assault in NY require some kind of injury (i.e., there's no offensive touching version of assault in NY)
§ Attempted assault in NY: require intent to assault. Merely creating reasonable apprehension without intent to injure is different crime called menacing.
Year and a day rule
• Year and a day rule
○ Common law: death must occur within a year and a day of homicidal act
○ NY/Majority rule: death may occur at any time
Common law murder
○ Murder: Causing death of another person (born alive) with malice aforethought
§ Mental state: malice aforethought means: 1) intent to kill; 2) intent to inflict great bodily harm or serious physical injury; 3) extreme recklessness (NY: depraved indifference); OR 4) felony murder
§ Deadly weapon rule: intentional use of deadly weapon creates an inference of an intent to kill
§ Transferred intent: if D intends to harm one victim but accidentally harms different victim instead, D's intent will transfer from intended victim of actual victim. (Applies most frequently to murder, but also to other crimes, such as battery and arson).
□ Exception: transferred intent does not apply to attempted, only to crimes with completed harms.
Statutory variation of common law murder
§ Statutory variation for First degree murder: most states have modified their homicide statutes to create two degrees of murder.
□ Intentional: any killing committed with 1) premeditation (D though about it ahead of time)AND 2) deliberation (D was cool, calm, collected)
□ Felony murder: in many states, killing committed during particular enumerated felony (usually most serious felonies, such as arson, rape, robbery, burglary and kidnapping) will be first degree murder
□ All other murders are second degree.
Common law voluntary and involuntary manslaughter
○ Voluntary manslaughter: an intentional killing committed in the heat of passion after adequate provocation.
§ Provocation: would arouse a sudden and intense passion in mind of ordinary person AND D did not have time to cool off.
□ Examples: serious assault and battery; spouse in bed (construed strictly)
○ Involuntary manslaughter: killing made with criminal negligence (should have known of substantial risk) OR killing committed during crime if it is not felony murder
Common law Felony murder
○ Felony murder: any death caused during commission of or attempt to commit a felony. Usually unintentional, if it was intentional killing then second degree murder instead.
§ Limitations of Felony Murder:
□ D must be guilty of felony
□ Felony must be inherently dangerous
□ Felony must be separate from killing itself (merger doctrine). Aggravated battery cannot be underlying crime.
□ Killing must be during the felony or immediate flight from the felony
□ Killing must be in furtherance of the felony
□ Death must be foreseeable
□ Victim must not be a co-felon
§ Vicarious liability: if on of co-felons causes death, all of other co-felons will be guilty of felony murder. Applies even if actual killing was committed b third-person (bystander, police officer), so long as one of felons is proximate cause of death.
NY first degree murder
○ First degree murder--
§ Mental state: intent to kill;
§ Defendant must be at least18 years old
§ At least one aggravating factor: victim is police officer, killing for witness intimidation, murder for hire, two or more victims, intentional killing during serious felony
NY second degree murder
§ Intent to kill (premeditation and deliberation is irrelevant in NY).
§ Extreme recklessness: Called in NY depraved indifference murder
□ Key language: utter disregard for human life.
□ Generally, act must put more than one person in danger
□ Cannot be used for one-on-one killings, unless it involves either brutal torture or abandoning a helpless victim to almost certain death.
§ Felony murder: similar to common law with three exceptions:
□ 6 underlying felonies: burglary, robbery, arson, kidnapping, escape, sexual assault (BREAKS)
□ D need not be convicted of underlying felony (so long as there is sufficient evidence that he committed felony)
□ Non-slayer defense: affirmative defense to felony murder if D can prove each:1) D did not do killing; 2) D did not have deadly weapon; 3) D had not reason to believe that his co-felons has deadly weapons; AND 4) D had no reason to believe his co-felons intended to do anything likely to result in death.
NY First degree manslaughter
○ First degree manslaughter: Intent to cause serious physical injury OR extreme emotional disturbance (similar to heat of passion)--an intentional killing committed under influence of a reasonable extreme emotional disturbance.
§ Affirmative defense to second degree murder: D must prove extreme emotional disturbance by a preponderance
NY Second degree manslaughter and criminally negligent homicide
○ Second degree manslaughter: Mental state recklessness. D is aware of and consciously and disregards a substantial and unjustifiable risk of death.
○ Criminally negligent homicide: D should have known of a substantial and unjustifiable risk of death.
○ Other NY homicide offenses:
§ Aggravated homicide: when victim of homicide is police officer is killed in the line of duty.
§ Vehicular homicide: death cause by drunk driving
□ DWI: driving with BAC over .08%
® Injury only crime is vehicular assault.
□ Vehicular manslaughter 2: death plus DWI
□ Vehicular manslaughter 1: vehicular manslaughter 2 plus aggravating factor: BAS over .18 OR prior DWI conviction
□ Aggravated vehicular manslaughter: Vehicular manslaughter 1 plus reckless driving
• Common law confinement offenses
○ False imprisonment: unlawful confinement of a person without consent.
§ Mental state: general intent
○ Kidnapping: false imprisonment that involves either moving victim or concealing victim in secret place.
§ Mental state: general intent
§ Aggravated kidnapping: kidnapping plus aggravating factor: ransome, purpose to commit robbery or rape, or victim is a child.
NY Confinement offenses
○ Unlawful imprisonment
§ 2nd degree: unlawfully restraining someone and with knowledge that restriction is unlawful. Mistake of law is a defense to this crime.
§ 1st degree: 2nd degree plus serious physical injury.
○ Kidnapping:
§ Second degree: abducting someone
§ First degree: second degree kidnapping, plus: ransom, OR restraint for more than 12 hours with intent to rape, injury or rob victim, death of victim.
§ Kidnapping and homicide: if victim is killed accidentally: 2nd degree murder (felony murder)
□ If victim is killed intentionally during a kidnapping it is first degree murder
Sex offenses
• Forcible rape: sex, without victim's consent accomplished by when by force, threat of force or when victim is unconscious.
○ Mental state: general intent
• Statutory rape: sex with someone who is below the age of consent.
○ Mental state: strict liability
§ Majority rule: no mistake defense
§ MPC/Minority: reasonable mistake of age is a defense
○ New York: age of consent is 17
Common law larceny
○ Larceny: trespassory taking and carrying away of person property of another, with intent to steal
§ Trespassory: wrongful or without permission (NOT trespass upon property)
§ Taking AND carrying away: item must be moved.
§ Personal property of another: key is possession not legal title.
□ If D validly possesses property, he cannot be guilty of larceny for taking it (even if D doesn't own it). Conversely, D can be guilty of larceny for taking his own property, if someone else had valid possession of it
§ With intent to steal: Specific intent and must be permanent.
□ If D intends to give property back or erroneously thinks property is his, taking is not larceny.
§ Erroneous takings rule: taking under a claim of right is never larceny
§ Concurrence---Continuing trespass: if D wrongfully takes property, but without intent to steal, not guilty of larceny. But, if D later forms intent to steal, initial trespassory taking is considered to have continued and he will be guilty of larceny.
Common law embezzlement
○ Embezzlement: conversion of personal property of another by person already in lawful possession of that property, with intent to defraud.
§ Mental state: specific intent
□ if D intends to give exact property back in exact form, will not have intent to defraud. BUT money is not fungible.
§ Key difference from larceny: D must already have lawful possession of property before taking can be considered embezzlement
§ Possession versus custody: possession involves more than mere custody. If requires authority to exercise some discretion over property.
Common law false pretenses
○ False pretenses: obtaining title to personal property of another by an intentional false statement, with intent to defraud.
§ Key difference from larceny: In larceny D gets only possession, in false pretenses D gets title.
§ False statement: Must be of a past or present event (not a future promise--check is present statement that there are sufficient funds).
§ Larceny by trick: if D obtains only possession (not title) as a result of intentional false statement, crime is larceny by trick, not false pretenses
NY Larceny
○ Larceny: any crime that would be larceny, embezzlement, false pretenses, or larceny by trick at common law is considered larceny in NY.
§ 1st degree: more than $1 million
§ 2nd degree: more than $500K
§ 3rd degree: more than $3000
§ 4th degree: more than $1000
§ Petit larceny: less amounts
NY Robbery
○ Robbery:
§ 3rd degree: forcible stealing (larceny plus force)
§ 2nd degree: forcible stealing plus: D aided by another actually present; victim is injured; OR car is stolen (carjacking).
§ 1st degree: forcible stealing, plus: victim is seriously injured OR D uses or displays firearm.
□ Affirmative defense: if D can prove gun was unloaded or inoperable, crime reduce to 2nd degree.
• Miscellaneous theft related offenses (common law and NY)
• Miscellaneous theft related offenses (common law and NY)
○ Forgery: making or altering a writing so that it is false with intent to defraud
○ Uttering: offering as genuine, a forged instrument with intent to defraud
○ Malicious mischief: destroying or damaging someone else's property with intent to defraud
NY: criminal mischief.
• Possession offenses
○ Act: possession--when statute criminalizes possession of contraband (e.g. drugs, stolen property, child pornography), possession means control for period or time long enough to have an opportunity to terminate possession.
§ Constructive possession: contraband need not be in D's actual possession so long as it is close enough for him to exercise dominion and control over it.
○ Mental state: knowledge (of possession and of character of item possessed)
○ Examples of NY possession offenses:
§ Drugs: criminal possession of controlled substance.
§ Firearms: criminal possession of weapon
□ Gun must be loaded and operable.
□ Statutory presumption presence of gun in vehicle creates presumption that all occupant s of vehicle possessed gun
§ Stolen property: criminal possession stolen property
□ Property must really be stolen. Property that is abandoned or that is used with permission (e.g., by police in undercover sting) is not considered stolen.
§ Uttering: criminal possession of forged instrument.
Common law burglary
§ Common law burglary: breaking and entering dwelling of another at night with intent to commit a felony inside
□ Breaking: creating or enlarging an opening by force however minimal
® Includes breaking window, opening window, opening a door
® NOT: climbing through open window or door or entering with permission.
□ Entry: some part of D's body must enter building
□ Dwelling: structure where someone regularly sleeps.
□ Intent to commit felony inside: specific intent (intent to steal, rob, rape, assault, kill). Must have intent at time of breaking to commit burglary.
§ Modern statutory changes: many states have eliminated technical requirements of common law burglary (especially "breaking," "at night" and "dwelling").
NY Burglary
§ NY burglary:
□ 3rd degree: entering or remaining unlawfully in a building with intent to commit a crime inside (crime other than trespass).
□ 2nd degree: third degree burglary, plus: building is a dwelling; non-participant is injured; OR D carries a weapon.
□ 1st degree: D that he is burglarizing a dwelling, plus: non-participant is injured OR D carries weapon.
□ Remaining: takes care of concurrence problem
□ If victim is killed accidentally murder 2 (felony murder)
□ If victim is killed intentionally during a first or second degree burglary, murder 1.
Common law arson
§ Common law arson: malicious burning of building
□ Mental state: malice, intent or reckless disregard of known risk.
□ Burning: requires material wasting of the structure ("scorching" in not enough; some part of building must actually be burned up)
□ Statutory developments:
® Dwelling: traditionally, arson was limited to dwellings, but most states not extend arson to all buildings
® Of another: traditionally, D could not commit arson on his own property; most states have eliminated that restriction.
NY arson
□ 4th degree arson: reckless burning of a building
□ 3rd degree arson: intentional burning of a building
□ 2nd degree arson: 3rd degree arson when D knows or should have known that someone was inside building (negligence as to whether in building).
□ 1st degree: 2nd degree arson plus an explosive device
Accomplice liability
§ Act: aiding or encouraging principal
§ Mental state: with the intent that the crime be committed
□ NY distinction: in NY accomplice need not specifically intend that crime be committed. Enough if accomplice specifically intends to aid principal's conduct, and otherwise has mental state require for principal's crime
® Possible in NY to be accomplice in negligent or reckless crime.
Scope of accomplice liability
• Scope of accomplice liability: accomplice is guilty of all crimes that he aided or encouraged (just as if he did it), AND all other crimes committed along with the aided crime.
○ Unprosecuted principal: if principal is not prosecuted or has individual defense (insanity), accomplice is still guilty.
Persons who are NOT accomplices
§ Mere presence does not make someone an accomplice (must actually help)
§ Mere knowledge does not make someone an accomplice (must actually intent to aid or encourage)
□ NY distinction: rule is same in NY, except that mere knowledge can make someone guilty of less serious crime of criminal facilitation: knowingly aiding in commission or probable commission of a crime
§ Member of protected class: victim of crime cannot be accomplice
Withdrawal from aiding or encouraging
○ Withdrawal: if accomplice changes his mind
§ Encourage: an accomplice who only encouraged principal may withdraw simply by discouraging the crime before it is committed
§ Aider: must either neutralize assistance or prevent crime from happening (including notifying authorities)
§ NY: renunciation--accomplice must make a substantial effort to prevent commission of crime
□ Affirmative defense (burden on D).
• Accessory after the fact:
○ Common law: to commit separate common law offense of being accessory, D must: assist a principal who has committed a felony with that crime has been committed and with knowledge that the crime was committed with intent to help principal avoid arrest or conviction.
○ Modern statutory approaches: typically called obstruction of justice, harboring fugitive or NY: hindering prosecution.
Solicitation
• Solicitation: asking someone to commit a crime, with the intent that crime be committed
○ Mental state: specific intent
○ Completion unnecessary: crime is in the asking. Doesn't matter whether other person agrees or whether crime is actually committed.
Conspiracy
• Conspiracy: an agreement between two or more people to commit a crime, plus an overt act in furtherance of crime
○ Overt act: any act of preparation (minimal requirement). Traditionally common law did not require an overt act, but majority states now do.
○ Mental state: specific intent to accomplish conspiracy's objective
○ Completion unnecessary: crime is in the agreement (plus overt act).
One person conspiracy
§ Common law: No, there must be at least 2 guilty minds, both of whom actually agree to accomplish conspiracy's objectives. Bilateral approach.
□ If all other parties to agreement are acquitted, last remaining D cannot be convicted.
§ NY/MPC: Yes. Under unilateral approach, D may be guilty of conspiracy even if other parties are acquitted or were just pretending to agree.
Vicarious liability
§ Common law rule: in addition to conspiracy, D will be liable for other crimes committed by his co-conspirators, so long as those crimes were 1) in furtherance of conspiracy's objective AND 2) foreseeable
NY rule: NO VICARIOUS LIABILITY for crimes committed by co-conspirators.
Attempt
○ MPC/majority test: conduct that is a substantial step towards crime and strongly corroborative of a criminal purpose. (example: preparation is enough)
○ NY/common law test: conduct that gets dangerously close to commission of crime (a.k.a, dangerous proximity test). (Police must wait much longer before making arrest, preparation not enough)
○ Mental state: specific intent to commit crime
§ Cannot attempt unintentional crimes. No attempt versions of reckless crimes, negligent crimes, or felony murder.
§ Possible to attempt malice, general intent or strict liability crimes, but only if D specifically intends to commit crime.
Impossibility
§ Factual impossibility: claim it was impossible to complete crime because of some circumstance beyond D's control.
□ Rule: factual impossibility is not defense to attempt. (pick pocket but pocket empty, still guilty of attempted larceny; white powder not cocaine, still guilty of attempted distribution of cocaine). If factual circumstances were as D believed to be, would he be guilty of crime?
§ Legal impossibility: claim it was impossible to complete crime because what D was trying to do was not illegal.
□ Rule: legal impossibility IS defense to attempt.
• Withdrawal/renunciation/abandonment:
• Withdrawal/renunciation/abandonment: what happens when solicitor, co-conspirator or attempter changes his mind
○ Common law: withdrawal is not a defense.
§ Once D withdraws from conspiracy he will no longer be vicariously for crimes committed by his co-conspirators after he left conspiracy.
○ NY/MPC: withdrawal can be defense only if 1) D voluntarily and completely renounces solicitation, conspiracy or attempt AND 2) renunciation is based on "change of heart," not fear of failing or being caught.
Merger
when can D be convicted of multiple crimes for same conduct.
○ Lesser included offenses will merge with greater offense: lesser offense that is necessarily part of greater offense. Every element of lesser offense is also an element of greater offense.
§ Larceny is lesser included offense of robbery, but larceny is not lesser included offense of burglary.
○ Inchoate offenses:
§ Attempt: merge with completed crime (in same action as completed crime).
§ Conspiracy: does NOT merge with completed crime
§ Solicitation:
□ Common law: merges
□ NY: does NOT merge
• Insanity: D must have mental disease or defect AND then 3 tests used to gauge whether mental disease or defect renders D legally insane:
○ M'Naughten Test (oldest test): If D either 1) did not know his act was wrong OR 2) did not understand nature of his act.
○ Irresistible impulse test (usually added to M'Naughten test): If D either 1) was unable to control his action OR was unable to conform his conduct to requirement of law.
○ MPC test (combines 2 common law tests) If D lacked substantial capacity to either 1) appreciate criminality of his conduct OR 2) unable to conform his conduct to the law.
○ NY test: D lacked substantial capacity to either 1) understand nature of his act OR 2) appreciate wrongfulness of his conduct.
§ Burden of proof: insanity is affirmative defense (D must prove by preponderance of evidence)
Insanity distinguished from incompetency
○ Distinguished from incompetency:
§ Insanity: whether D was insane at the time of the crime. If yes, then not guilty
§ Incompetency: whether D is mentally ill at time of trial. If yes, then trial is postponed until D is competent
Intoxication
○ Involuntary intoxication: defense to any crime. Treated like mental illness, so apply insanity test. Key: intoxication must be completely involuntary.
○ Voluntary intoxication: can be defense to specific intent crimes, if intoxication prevents D from forming specific intent
§ Cannot be defense to malice, general intent or strict liability crimes.
§ NY rule: can be defense to intent crimes and knowledge crimes, if intoxication prevent D from forming required intent.
□ Cannot be defense to crimes of recklessness, negligence or strict liability.
□ Regular defense: prosecution has burden after D raises.
□ Open question whether defense to depraved indifference murder.
Infancy
○ Common law
§ Age 7: prosecution not allowed
§ Under age14: rebuttable presumption against prosecution
§ Over age 14: prosecution allowed
○ NY
§ Under age 13: Criminal prosecution as an adult not allowed; only juvenile delinquency proceeding in Family Court.
§ Age 13: Criminal prosecution as an adult allowed for 2nd degree murder
§ Age 14: Criminal prosecution as an adult allowed for serious crimes against persons or property.
§ Age 16: Criminal prosecution as an adult allowed for any crime.
Self-defense: deadly versus nondeadly force
○ Distinguish deadly and nondeadly force: shoves and punches are nondeadly; guns and knives are deadly.
○ Nondeadly force: D may use nondeadly force in self-defense if 1) reasonably necessary 2) to protect against imminent use 3) of unlawful force against himself
Deadly force: D may use deadly force in self-defense if he is facing imminent threat of deadly force
Aggressor rule
§ Aggressor rule: D may not use deadly force if he is aggressor (started fight). But can regain right to use deadly self-defense if:
□ 1) aggressor withdraws from fight and communicates withdrawal to other person OR
□ 2) victim suddenly escalates nondeadly fight into deadly fight
® NOT available in NY
Retreat rule
§ Retreat rule: in some states, D is required to retreat before using deadly for in self-defense
□ Majority rule: retreat is NOT required
□ Minority/NY rule: retreat IS required, unless D cannot retreat safely or D is in his own home (castle exception).
Reasonable mistake about use of force
○ Reasonable mistake: can still get defense
§ Unreasonable mistake
□ Common law/NY rule: no self-defense
□ Minority rule/MPC: imperfect self-defense. Intentional killing, based on unreasonable belief in need to use self-defense will be voluntary manslaughter, not murder.
Use of force to prevent crime or protect property
○ Use of force to prevent a crime
§ Nondeadly force may be used if necessary to prevent a crime.
§ Deadly force may be used to prevent felony risking human life.
§ NY rule: Deadly force may use to prevent BREAKS felonies (no escape) and retreat not required.
§ Defense of others: D may use force and deadly force to protect others just same a she could use it to defend himself.
○ Defense of property: general rule may NOT be used to defend property
§ Burglary rule: Deadly force may be used to prevent burglary if D is in his own home
Resisting arrest
○ Resisting arrest: if D knows or reasonably should know that person performing arrest is police officer
§ Majority rule: if arrest is unlawful then D may use nondeadly force to resist arresting officer.
§ NY rule: force may not be used to resist an arrest even unlawful one unless officer uses excessive force
Necessity defense
○ Necessity defense: defense to criminal conduct if D reasonably believed conduct was necessary to prevent a greater harm
§ Exception: not a defense to homicide
§ NY rule: harm avoided must be greater than harm caused, but necessity can be defense to homicide.
Duress
• Duress: defense if D was forced to commit a crime under threat of death or serious bodily injury
○ Exception: duress cannot be defense to homicide
§ NY Rule--Homicide: duress can be defense to homicide
□ Burden: Duress is affirmative defense
Entrapment
• Entrapment: if government unfairly tempted D to commit crime. Very narrow. Only if criminal design originated with government and D was not predisposed to commit crime
○ NY: entrapment is an affirmative defense.
○ Was search or seizure executed by government agent?
§ Publicly paid police, on or off duty
§ Private citizens, if (and only if) they are acting at direction or police
□ Private security guards are government agents only if they are deputized with power to arrest, ex: campus security guards at many public universities.
○ Was there reasonable expectation of privacy in area search or items seized?
§ Protected areas: 4th amend protects individual from unreasonable searches and seizures of their: person (bodies), houses (including hotel rooms), papers (personal correspondence) AND effects (purses, back packs).
□ Curtilage: home-based privacy includes are of domestic use immediately surrounding house.
Unprotected items
§ Unprotected items: certain categories of items that are sufficiently public in nature that they carry NO reasonable expectation or privacy, even if they are searched or seized by government agents (Patty Achieved A Glorious Victory Over Her Opponents). Knowing exposure to third parties.
□ Paint scrapings on outside of your car
□ Account records held by a bank
□ Airspace: anything that can be seen below while flying in public airspace.
□ Garbage left at curb for collection
□ Voice exemplar
□ Odors--that emanate from your car or your luggage
□ Handwriting
□ Open fields: anything that can be seen in or across open fields.
○ Challenging search or seizure: to have authority or standing to challenge lawfulness of search of seizure by government agent, individual's personal privacy rights must be invaded, not those of third party
§ If owned premises searched, always have standing
§ Not owned, but reside premises, always have standing
§ Overnight guest always have standing as to areas overnight guests can be expected to access
§ Using residence searched solely for business purposes NEVER enough to confer standing. Apartment of acquaintance used only to bad cocaine
§ If own property seized, only if they have reasonable expectation of privacy in area from which property was seized (man who hides drugs in girlfriend's purse does not have standing)
§ Passengers in cars, only if they have reasonable expectation of privacy in item or area searched or seized (cop finds bag of marijuana in passenger's coat (yes); cop finds baggie of drugs with passenger's name on it under driver's seat (No).
□ NY rule: passengers in cars can challenge possession of weapons if possession is attributed to them
§ Fact that incrimination evidence may be introduced against individual in court is insufficient, in and of itself, to provide authority to challenge search or seizure in court.
Probable cause
§ Probable cause: requires proof of "fair probability" that contraband or evidence of crime will be found in area searched
□ Prosecutor can use hearsay to establish probable cause
□ Informant tips: Police may rely on information obtained through informant's tip, even if anonymous.
® Test: Sufficiency of informant's tip rests on corroboration by police of enough of tipster's information to allow magistrate to make a common sense practical determination that probable cause exists
® NY test (Aguilar-Spinelli): government must establish informant basis of knowledge AND veracity or reliability.
Particularity
§ Particularity--standard: search warrant must specify 1) place to be searched AND 2) items to be seized.
□ Disallows General warrant: authorizes fishing expedition in private areas that could not house evidence for which there was probable cause to search
Good faith exception to invalid warrant
○ Good faith? warrant that is invalid due to absence of probable cause or particularity can still be saved if officer relied on it in good faith.
§ NY rule: no good faith doctrine
§ Exceptions to good faith:
1. Affidavit supporting warrant application is so egregiously lacking in probable cause that no reasonable officer would have relied on it.
2. Warrant is so facially deficient in particularity that officers cannot reasonably presume it to be valid.
3. Affidavit relied upon by magistrate contains knowing or reckless falsehoods that are necessary to probable cause finding .
4. Magistrate who issued warrant is biased in favor of prosecution.
Terms and limitations of warrant
○ Whether officers executing warrant complied with its terms and limitations: in executing warrant, officers are allowed to search only those areas and items authorized by language of warrant.
§ Item: firearm, then no items too small to hold a firearm
Knock and announce rule
○ Whether officers executing warrant complied with knock and announce rule: requires police to "knock and announce" their presence and their purpose before forcibly entering place to be searched, unless officer reasonably believes that doing so would be futile or dangerous or would inhibit investigation.
§ No-knock: reasonable where probable cause to believe occupant was dealing drugs out of his home, had violent criminal history and kept cache of weapons in home
No-knock: unreasonable where occupants were believed to be making meth, no violent criminal record, no evidence that armed, no demonstrated risk of destruction of evidence in time it would take to knock and announce.
Warrantless search exceptions
• Warrantless search--exceptions to warrant requirement
○ ESCAPIST: exigent circumstances, search incident to arrest, consent, automobile, plain view, inventory, special needs, Terry "stop and frisk"
Exigent circumstances
○ Exigent circumstances:
§ Evanescent evidence: evidence that would dissipate or disappear in time it would take to get warrant
□ Example: scraping under fingernails, blood evidence in DUI
§ Hot pursuit of fleeing felon: allows police, when looking for suspect, to enter SUSPECT'S HOME or that of a THIRD PARTY into which he has fled. During hot pursuit, any evidence of criminal activity discovered IN PLAIN VIEW while searching for suspect is admissible.
○ Search incident to arrest: Arrest (aka custodial arrest) must be lawful
§ Justifications: officer safety and need to preserve evidence.
§ **Timing: search must be CONTEMPORANEOUS in TIME AND PLACE with the arrest.
§ Geographic scope: wingspan, which include BODY, CLOTHING and ANY CONTAINERS within arrestee's IMMEDIATE CONTOL, without regard to offense for which arrest was may
□ NY distinction: to search CONTAINERS within the wingspan, police must suspect arrestee is ARMED
§ Automobiles searched incident to custodial arrest--permissible scope: INTERIOR CABIN of car including CLOSED (not locked) CONTAINERS but not the TRUNK.
§ Location of suspect: once officer has secured an arrestee (by for example handcuffing him and placing him in squad car) officer can search arrestee's vehicle only if she has reason to believe vehicle may CONTAIN EVIDENCE relating to the CRIME FOR WHICH ARREST MADE
NY distinction: once occupant is out of car, police cannot search CLOSED CONTAINERS IN THE CAR to look for weapons or evidence of crime.
Consent
§ Standard: consent must VOLUNTARY and INTELLIGENT. To satisfy standard, police do not need to tell someone that she has the right to refuse CONSENT
§ Apparent authority: if police officer obtains consent to search form someone who lacks "actual" authority to grant it, consent is still valid under 4th Amendment, provided officer reasonably believed that consenting party had "actual" authority. (GF had keys, kept belongings and called apartment "ours")
§ Shared premises: when adults share residence, who has authority to consent to search of common areas within it? ALL OF THEM.
§ Disagreeing co-tenants: if co-tenants with equal rights to use or occupy premises disagree regarding consent to search common areas, who prevails? OBJECTING PARTY prevails as to areas over which they share dominion and control
Automobile
§ Standard: police officers need PROBABLE CAUSE to believe that CONTRABAND or EVIDENCE OF CRIME will be found in vehicle .
§ Where may police officer search: entire vehicle and they may open any PACKAGE, LUGGAGE or OTHER CONTAINER that may reasonably contain items for which there was probable cause to search.
§ Traffic stops and auto searches: sometimes what begins as routine traffic stop results in search of all or part of vehicle. For search to be lawful, officer does no need probable cause at time car is pulled over, provided he acquires it before initiating the search.
Plain view
○ Plain view--three requirements:
1. Lawful access THE PLACE from which item can be plainly seen.
2. Lawful access to ITEM SEIZED
3. Criminality of item must be IMMEDIATELY APPARENT
§ NY Distinction: plain view seizure of obscene material requires prior judicial authorization.
Inventory searches
○ Inventory searches:
§ Arrestees: when they are booked into jail
§ Vehicles: when they are impounded
§ Constitutional if regulations governing them must be REASONABLE IN SCOPE and search itself must comply with those regulations.
Special needs
special needs of law enforcement, government employers and school officials beyond a general interest in law enforcement.
§ Random drug testing (most important): approved by SCOTUS--railroad employees following an impact; customs agents who are responsible for drug interdiction; public school children who participate in any extracurricular activities.
□ However suspicion-less drug tests are not permitted where their primary purpose is to gather criminal evidence for use by law enforcement. (coercing pregnant women in treatment by threat of prosecution)
§ Government employee's desks and files: permitted to investigate work related conduct
§ Students' effects in public school (purses, back packs ) are permissible to investigate violations of school rules, such as prohibition of smoking on school ground
§ Border searches: neither citizens nor non-citizens have any 4th amendment rights at border, with respect to routine searches of persons and effects.
Terry stops
§ Terry stop: brief detention or "seizure" for purpose of investigating suspicious conduct.
□ Can take place anywhere--on street, in car, in airport concourse, on a bus.
□ When are you "seized" for 4th Amendment purposes? Individual is seized for 4th Amendment purposes when, based on a totality of circumstances, reasonable person would not feel FREE TO LEAVE or to decline officer's request to ANSWER QUESTIONS.
® Factors whether individual has been seized during questioning by law enforcement: 1) whether officer BRANDISHES WEAPON ; 2) officer's TONE and DEMENOR when interacting with individual questioned; and 3) whether individual was told she had right to REFUSE CONSENT.
Seizure and police pursuit and traffic stops
□ Police pursuit and seizure: when being pursued by police officer, individual is seized only if he submits to officer's authority by stopping or if officer physically restrains him.
® NY distinction: police pursuit is seizure in and of itself.
□ Seizure and traffic stops: both driver and passengers are seized, such that either can challenge legality of stop.
® Dog sniffs: permissible at traffic stops, provided sniff does not delay the stop unreasonably--so K-9 sniff while computer is checking driver's license and registration.
Terry frisks
§ Terry Frisks: PAT DOWN of body and outer clothing for WEAPONS that is justified by officer's belief that suspect is ARMED and DANGEROUS
□ What can you seize in Terry frisk: can always seize WEAPON. If instead, officer finds something she recognizes as contraband without manipulating object, can seize as well. (need to physically manipulate powder in baggie to know if it is drugs)
® NY distinction: officer can seize item only if it feels like WEAPON.
□ Car frisks: when conducting traffic stop, if officer believes suspect is dangerous, he may search passenger cabin of suspect's vehicle, limited to those areas in which a weapon may be placed or hidden.
Terry evidentiary standards
§ Evidentiary standards: reasonable suspicion, which is less than probable cause.
□ Stops: requires specific and articulable facts that inform officer's belief that criminal activity is present
□ Frisks: specific and articulable facts that suggest that suspect is armed and dangerous
® Justified by concern for officer safety only, NOT a general search for criminal evidence.
• Unconstitutional search or seizure evidence: to what extent can prosecutors use evidence gathered in unconstitutional search and seizure against D in court?
○ Exclusionary rule: evidence, whether physical or testimonial, that is obtained in violation of federal statutory or constitutional provision is inadmissible in court against individual whose rights were violated
Exceptions to exclusionary rule
§ Case in chief v. cross-examination: excluded from case in chief only; it may be introduced to impeach D's testimony on cross-examination
§ Knock and announce violations: failure to comply with knock and announce rule does not require suppression of evidence subsequently discovered

Officer's reasonable mistakes: exclusionary rule does not apply to evidence erroneously obtained when executing search warrant, provided officer's mistake was reasonable.
§ Fruit of poisonous tree: evidence both physical and testimonial can also be obtained by exploiting prior unconstitutional conduct (confession obtained as result of earlier unlawful arrest). Derivative or "secondary: evidence and like direct evidence in violation of 4th amendment is inadmissible in prosecutor's case in chief.
□ To nullify "fruit of poisonous tree" prosecutors must show a break in the causal link between original illegality and criminal evidence that is later discovered
® Independent source doctrine: where source for discovery and seizure of evidence that is distinct from original illegality (parallel process initiated by other officers)
® Inevitable discovery doctrine: applies where evidence would necessarily have been discovered through lawful means
® Attenuation doctrine: admits derivative evidence where D's free will has been restored through passage of time and intervening events. (illegally arrested, released, met with attorney, confesses. Confession admissible)
Wiretapping
○ Wiretapping: 4 major requirements for valid wiretap warrant:
§ Suspected persons whose conversation are to be overheard
§ Crime: must be probable cause that specific crime has been committed
§ Conversation: warrant must described with particularity conversation that can be overhead
§ Time: must be for strictly limited time period.
Eavesdropping
§ Unreliable ear doctrine and assumption of rick: if you speak to someone who has agreed to wiretap or some other form of electronic monitoring, you have no 4th amendment claim. You assumed risk that other party will not keep conversations private
Law of arrest
○ When does arrest occur? Occurs whenever police take some against her will for prosecution or investigation. De facto arrest when police compel someone to come to police station for question or fingerprinting
○ Standard of proof: probable cause. 4th amendment permits custodial arrest for all offenses even those punishable for monetary fine only.
○ Warrant required? No warrant to arrest someone in public place
§ Absent emergency, policy officers need warrant to arrest someone in her or her home
§ To arrest someone in home of 3rd party, police officers need an arrest warrant and a search warrant.
○ Common enterprise theory: traffic stop where police officer discovers evidence of crime suggest common unlawful enterprise between driver and his passengers, officer may arrest any of all of them, based on reasonable interference of shared dominion and control over contraband
• 3 federal constitutional challenges to exclude confession
• 3 federal constitutional challenges to exclude confession
○ 14th amendment DP clause
○ 6th amendment right to counsel
○ 5th amendment Miranda doctrine
○ NY D can also challenge confession under NY's indelible right to counsel which derives from 6th amend of state constitution
• Excluding confessions under 14th amendment DPO
• Excluding confessions under 14th amendment DP
○ Standard: involuntariness, which means confession is product of police coercion that overbears suspect's will.
• Right to counsel under 6th amendment:
• Right to counsel under 6th amendment: express constitutional guarantee
○ Attaches when D is formally charged, NOT upon arrest
○ Right is offense specific: applies only to charges filed against you. No protection for uncounseled interrogation for uncharged criminal activity.
NY indelible right to counsel
• NY's indelible right to counsel: provides greater protection than 6th Amendment.
○ Attaches not only at formal charging, but whenever there is significant judicial activity before filing of accusatory instrument such that D may benefit from presence of counsel.
§ Accordingly, if D is taken into custody for question on charge and police are aware that he is represented by counsel on that charge, they may not question him on that charge or any other matter without his attorney present.
○ If D is represented by counsel, waiver of indelible right to counsel must take place in presence of attorney.
Miranda
• 5th Amendment Miranda doctrine: rights are implied rights grounded in self-incrimination clause of 5th amendment
○ Four core warnings: right to remain silent; anything you can and say will be used against you in a court of law; right to attorney; if you cannot afford one, an attorney will be appointed for you at no cost.
○ When are warnings necessary? Custodial interrogation
§ Custody: in custody for Miranda purposes, if atmosphere viewed objectively, is dominated by police and coercion such that his freedom of action is limited in significant way.
§ Interrogation: any conduct police knew or should have known was likely to elicit an incriminating response
□ Spontaneous: Miranda does not apply to incriminating statements made spontaneously since they are NOT product interrogation
§ Exception: if custodial interrogation is prompted by immediate concern for public safety Miranda warnings are unnecessary and any incriminating statements are admissible against suspect.
Valid Miranda waiver
§ Requirements:
□ Knowing and intelligent--if suspect understands: 1) nature of rights AND 2) consequences of abandoning them.
□ Voluntary-- if it is not product of police coercion.
§ NY parent/child rule: if police use deception or concealment to keep parent away from child who is being interrogated, child's waiver may be deemed invalid.
§ Burden of proof: prosecution bears burden of proving waiver by preponderance of evidence
Silence or shoulder-shrugging: no, but new decision is probably.
Invoking Miranda rights
§ Right to remain silent: police officers must "scrupulously honor" suspect's request to remain silent. Means, at least, police cannot badger suspect into talking; police detectives must wait significant period of time before reinitiating questioning and must first obtain valid Miranda waiver.
§ Right to counsel: Once suspect asks for counsel (lawyers up)ALL INTERROGATION must cease unless INIATED BY SUSPECT
□ Request for counsel must be SUFFICIENTLY CLEAR that reasonable officer in same situation would understand statement to be request for counsel.
□ Unlike 6th amendment, 5th amendment right to counsel is not offense-specific; therefor interrogation following request for counsel under Miranda is prohibited as ALL TOPICS, outside presence of suspect's attorney.
□ Request for counsel expires 14 days after suspect is released from custody. Waiver after this period is valid, provided knowing and intelligent, and voluntary.
○ Limitations on evidentiary exclusion as applied to Miranda violation
§ Incriminating statements obtained in violation of suspect's Miranda rights are inadmissible in prosecutor's case-in-chief but may be used to impeach D's testimony on cross-examination but NOT testimony of 3rd party witnesses.
§ Failure to give suspect Miranda warnings does not require suppression of physical fruits of incriminating statement, provided statements are voluntary.
§ If statement is inadmissible due to Miranda violation subsequent statement made after obtaining Miranda wavier are admissible, provided initial non-Mirandized statement was not obtained through use of inherently coercive police tactics.
§ If testimonial evidence should have been excluded as violative of Miranda was improperly admitted at trial and D was convicted, is court required to vacate?
□ Guilty verdict will stand if government can prove, beyond reasonable doubt that error was harmless because D would have been convicted without tainted evidence.
• Three types of pretrial identifications:
○ Line-ups: witness is asked to identify perpetrator from group
○ Show-ups: one-on-one confrontation between witness and suspect
○ Photo-arrays: witness asked to pick out perpetrator from series of photos.
Challenges to pre-trial identification
○ Denial of right to counsel:
§ 5th amendment: no 5th amendment right to counsel under Miranda for pre-trial identification procedures.
§ 6th amendment: right to counsel exists under 6th amendment at line-ups and show-ups that take place after formal charging; no 6th amendment right to counsel at photo arrays.
□ NY provides greater protection for suspects: right to have attorney present at line-up conducted before filing of formal charges if police are aware that you have counsel and you request that counsel be present
○ Violation of DP: pretrial identification procedure violates DP of 14th when it is so unnecessarily suggestive that there is substantial likelihood of misidentification
remedy for constitutional violations in pretrial identification
remedy for constitutional violations in pretrial identifications, whether right to counsel or DP, is same: exclusion of witness's in-court identification
○ However, even if there is constitutional violation in pretrial identification procedure, an in-court identification will still be allowed if prosecution can prove it is based on observation of suspect OTHER THAN unconstitutional show-up, line-up or photo array.
§ To make this showing, prosecution can point to factors such as:
1) Witness's opportunity to VIEW D at crime scene
2) CERTAINTY of witness's identification
3) SPECIFICITY of description given to police.
Grand juries
• What do they do? Issue indictments
• SECRET proceedings
• States do not have to use grand juries as part of charging process and most do not.
○ NY distinction uses grand juries: indictments must establish of offense and provide reasonable cause to believe that accused committed crime in question
Pretrial detention
• Standard of proof: government needs probable cause both to bind D over for trial and to detain him in jail before trial
• Detention hearings: unnecessary to justify pretrial detention if: 1) grand jury has issued an indictment ; OR magistrate has issued arrest warrant
• First appearance: soon after arrest, D must be brought before magistrate who will:
○ Advise him of rights
○ Set bail
○ Appoint counsel if necessary.
• Bail: decisions regarding bail are IMMEDIATELY appealable.
Trial rights: evidence and judge
• Evidentiary disclosure: prosecutor must disclose to criminal D all material exculpatory evidence (Brady rule)
• Judges: right to unbiased judge means 1) judge has no financial stake in outcome of case AND judge has no actual malice toward D
Trial rights jury number
○ Criminal Ds have right to jury trial when maximum authorized sentence exceed 6 months
○ Fewest number of jurors allowed in criminal trial is 6
§ NY distinction: requires 12 person juries; D can waive requirement and proceed to verdict with only 11 participating in deliberations
○ Jury verdicts in criminal trials must be unanimous only If 6 jurors are unsed, verdicts in 12 jureis need not be unanimous
§ NY requires unanimous jury verdicts
Trial rights: other jury rights
○ Cross-section requirement: pool from which jury is drawn represents cross-section of community. Petit jury that contains all white women over age of 60 does not violate cross-sectional requirement, provided pool was diverse
○ Peremptory challenges: permit both sides to exclude jurors without stating reasons for doing so but cannot be used by either side to exclude prospective jurors on account of race or gender
○ Confrontation: D's right to confront adverse witness under confrontation of 6th amendment does not apply where face-to-face confrontation would contravene important public policy concerns
○ Effective assistance of counsel: two prong test--1) counsel's performance was deficient AND 2) BUT FOR deficiency outcome of trial would have been different (prejudice require)
§ Because of strictness of test, unless some colorable argument that D is not guilty, always deny relief under ineffective assistance claim.
Guilty pleas and plea bargaining
• Guilty pleas and plea bargaining: must be voluntary and intelligent
○ Plea colloquy: judge must address, in open court, and on record, nature of charges and consequences of plea (waiving right to trial, right to plead not guilty).
○ Withdrawal guilty plea after sentencing only if:
§ Plea is involuntary, due to defect in plea-taking colloquy
§ Jurisdictional defect
§ D prevails on claim of ineffective assistance of counsel
§ Prosecutor fails to fulfill his part of bargain
Punishment
: 8th amendment prohibition against cruel and unusual punishment disallows criminal penalties that are GROSSLY DISPROPORTIONATE to seriousness of offense committed
○ Death penalty statute violates 8th amendment if it created AUTOMATIC CATEGORY for imposition of death penalty
○ In deciding whether to impose death penalty, jurors must be allowed to consider ALL POTENTIALLY MITGIATING EVIDENCE
○ 8th amendment prohibits imposition of death penalty against 3 categories of Ds: D with mental retardation; Ds who are presently insane; Ds who were under age of 18 at time of relevant offense occurred (not present age)
Double jeopardy
○ Attaches:
§ Jury trial: when jury is sworn
§ Bench trial: when first witness is sworn
§ Guilty plea: when court accepts D's plea unconditionally
○ Civil proceedings: NO! (if SEC prosecutes, USAO cannot criminally prosecute)
Double jeopardy: same offense
○ Same offense: 2 offenses are NOT same offense for purposes of double jeopardy clause if each contains element other does not
§ NY distinction: uses transaction test which requires D to be charged with all offenses arising from any single transaction unless:
□ Offenses have substantially different elements
□ Each offense contains element not in other and vindicate different harms
□ One is for criminal possession and the other use OR
□ Each offense involved harm to different victim
§ Greater and "lesser-included" offenses: prosecution for greater offense precludes later lesser included offense. Works both ways: prosecution for less precludes later greater prosecution
□ joy-riding in lesser included offense of auto-theft (joy-riding lacks element of intent to permanently deprive of possession
Double jeopardy: same sovereign
○ Same sovereign : double jeopardy bars retrial for same offense by same sovereign ONLY
§ State and federal: different
§ State and state: different
§ State and municipality: same
Exceptions to double jeopardy
○ Four exceptions:
§ Hung jury
§ Mistrial for manifest necessity
§ Successful appeal unless reversal on appeal was based on insufficiency of evidence presented by prosecution at trial
§ Breach of plea agreement by D.
• 5th amendment privilege against compelled testimony
○ ANYONE may assert privilege (D, witnesses, parties in civil proceeding)
○ Privilege can be asserted in any proceeding in which individual testifies under oath
§ NY distinction: privilege cannot be asserted in grand jury proceeding
○ Privilege must be asserted at FIRST opportunity or it is forever waived
○ Testimonial privilege that protects us from COMPELLED TESTIMONY only; does not apply to state's use of our "bodies"--not for forcible extraction of blood or urine in DUI
○ Privilege disallows negative prosecutorial comment on either D's: decision not to testify at his trial OR invocation of his right to silence or counsel.
3 ways to eliminate privilege
§ Grant of immunity: prosecutors can grant "use and derivative use" immunity, which bars government from using your testimony or anything derived from it to convict you.
□ NY distinction: transactional immunity which is broader than "use and derivative use" immunity since it shields witnesses from prosecution for any transaction they testified in about their immunized testimony.
□ Individual can be convicted based on evidence obtained prior to grant of immunity
§ D taking stand: by taking stand, D waives ability to "take 5th" as to anything properly within scope of cross-examination.
§ Statute of limitations: privilege is unavailable if statute of limitations has run on underlying crime since, in this circumstance, witness's testimony could not expose him or her to criminal prosecution