High Criminal Law/pro

Front 1

Crim Law elements of a crime

Back 1

In order to be guilty of a crime, the prosecution must prove that the defendant is guilty of all elements of the crime beyond a reasonable doubt. Every crime has four elements: (1) a physical act (also called the actus reus); (2) a mens rea or mental state element; (3) causation; and (4) concurrence. The physical act of the defendant must be voluntary.
The mens rea element is explicitly stated in the statute for the specific crime in which the defendant is charged. Causation has two parts: (a) actual or “but for” causation and (b) proximate cause. Both are required.
Actual causation requires asking if the defendant had not done this physical act, would the crime have occurred. Proximate cause has to do with foreseeability, and requires asking was it foreseeable that the injury
would have resulted from the defendant's physical acts. Finally, there needs to be a concurrence of the physical act and the mental state (the mental state and physical act occur at the same time).

Front 2

Felony murder

Back 2

Under the New York Penal Law, the crime of felony murder arises where a defendant causes the death of a non-participant during the commission of an enumerated felony or during the immediate flight
therefrom. The enumerated felonies include arson, burglary, robbery, kidnapping, escape, rape, and sexual assault. The killing must be independent of the felony and it must be a foreseeable result of the felony. It is important to note that a defendant is NOT liable for the
death of a co-felon in New York. Intent is irrelevant for second degree felony murder. All that is necessary is the perpetrator intended to commit the felony and an innocent person was killed during the commission thereof. However, if a defendant intentionally kills a nonparticipant victim during one of the enumerated felonies, they are guilty of first degree felony murder.

Front 3

Felony murder affirmative defense

Back 3

(1) he did not commit or aid in the commission of the homicidal act, (2) he was not armed, (3) he had reasonable grounds to believe the other participants
were not armed, AND (4) he had no reason to believe the other participants intended to engage in conduct likely to result in death. This affirmative defense can only be successful for a co-felon that did not commit the actual murder

Front 4

Burglary

Back 4

Under the New York Penal Law, Third degree burglary requires: (1) entry or unlawfully remaining in, (2) a building, (3) with the intent to commit a crime therein. Note that under the common law, the building
had to be a dwelling, the entrant had to break-in after dark, and the entrant must have had the intent to commit a felony inside. New York statutory law is therefore considerably broader than the common law
definition. Second degree burglary requires one of the three following aggravating elements: (a) the building was a dwelling; (b) the burglar was armed; or (c) someone was injured. First degree burglary
requires the following aggravating elements: (a) the defendant knows he is burglarizing a dwelling AND (b) either a non-participant is injured or the defendant was armed with a weapon.

Front 5

Arson

Back 5

Under the New York Penal Law, fourth degree arson is the reckless
burning of a building by intentionally setting fire to it. An affirmative
defense exists to fourth degree arson when the defendant recklessly
damages a building by intentionally setting fire to it and the building is
owned by him alone. However, this defense is NOT available to one
who intentionally sets fire to a building. Third degree arson is
intentionally damaging a building by intentionally starting a fire.
Second degree arson is third degree arson plus either (a) knowledge that
a non-participant is inside OR (b) setting the fire under circumstances
indicating that the presence of a third party is a reasonable possibility.
First degree arson is second degree arson plus the use of an incendiary
or explosive device. The affirmative defense referenced above is not a
defense to any other degree of arson besides fourth degree arson.

Front 6

Larceny

Back 6

Under the New York Penal Law, larceny is the trespassory taking away
of the personal property of another with the intent to permanently
deprive them of that property. In New York, larceny encompasses all
forms of common law larceny, including embezzlement, larceny by trick,
and false pretenses. Embezzlement is the taking of property of another
by a person with lawful possession who is in a position of trust.
Larceny by trick is obtaining possession (NOT title) of property as a
result of a false statement. False pretenses is obtaining title of personal property of another by an intentional false statement with the intent to
defraud (the false statement must be of a past or present event, not a
future promise). A complete defense to larceny is that the taking is
under a claim of right (i.e. the property actually belongs to the person
taking it).

Front 7

Accomplice liability

Back 7

An accomplice is one who renders aid, encouragement, or help to another with the intent that such aid or encouragement will help another to commit a crime or further the commission of a crime. An accomplice
is liable to the full extent to which the principal (the person who actually committed the crime) is liable and for all crimes committed by the principal which are foreseeable. It is irrelevant whether the accomplice actually committed the crime.

Front 8

Accomplice liability principal acquitted

Back 8

In New York, an accomplice can be convicted of the crime of criminal
facilitation even if the principal is acquitted or not prosecuted. However,
an accomplice may not be convicted solely on the testimony of another
party to the crime. In order to convict the accomplice, the testimony of
the other perpetrator/criminal must be sufficiently corroborated by other
evidence, including circumstantial evidence.

Front 9

Attempt

Back 9

Under the New York Penal Law, a party is guilty of attempt when he has
the intent to complete the crime AND comes dangerously close to
committing the actual crime. Mere preparation is NOT enough.
Withdrawal is an affirmative defense to an attempt crime. A party can
only withdraw if: (1) he voluntarily and completely renounces the
crime AND (2) the renunciation is the result of a change of heart, not
fear of getting caught. If mere abandonment is insufficient to
accomplish avoidance of the crime, the defendant must take affirmative
steps to prevent the commission of the crime.

Front 10

Conspiracy

Back 10

Under the New York Penal Law, conspiracy is a specific intent crime
and it does not merge with the substantive offense. The elements of
conspiracy are: (1) an agreement, (2) intent to agree, (3) intent to
pursue an unlawful objective, AND (4) an overt act in furtherance of
the conspiracy. The crime is complete the moment there is an agreement
and an overt act. Therefore, in order to withdraw and avoid liability for
the conspiracy, the defendant must voluntarily renounce the crime AND
prevent commission of the crime. Under the common law, a coconspirator
is vicariously liable for all other crimes committed by the coconspirators
in furtherance of the conspiracy. In New York, however, a
co-conspirator is NOT vicariously liable for the crimes of its coconspirators.
It is not necessary that the other co-conspirator be found
guilty as an accomplice or even that the other person had the intent to
achieve the unlawful objective (ex: an undercover police officer). This is
called the unilateral theory of conspiracy. However, a defendant may
not be convicted of conspiracy solely on the uncorroborated testimony of
a co-conspirator. There must be some other evidence, including
circumstantial evidence, to corroborate the co-conspirator’s testimony.

Front 11

Self defense

Back 11

Self-defense is a justification of an otherwise unlawful act. In New
York, self defense is an ordinary defense, not an affirmative defense.
The general rule is that a person can use non-deadly force in self
defense if the force is reasonably necessary to prevent against an
imminent use of unlawful force against the person. To use deadly
force, there must be an imminent threat of serious injury or death.
Deadly force is NEVER justified when used solely for the protection of property. Under New York law, one has a duty to retreat before using
deadly force when he safely can do so, unless (a) he is in his home or (b)
the party using deadly force is a police officer. In addition, a person may
NOT use deadly force if he was the initial aggressor or provoker who
had the intent to cause injury, unless he (1) withdraws from the fight
AND (2) communicates it to other person.

Front 12

Burden of proof for ordinary v. affirmative defenses

Back 12

Under the New York Penal Law (NYPL), all affirmative defenses must be raised by the defendant and proved by a preponderance of the evidence. However, the prosecution always bears the burden of proving the non-existence of an ordinary defense beyond a reasonable doubt, as well as proving each element of the crime beyond a reasonable doubt.
An alibi defense goes to the elements of the crime and
the burden is on the prosecution to disprove the alibi beyond a reasonable doubt. Under the NYPL, the defenses of insanity, duress, extreme emotional
disturbance, and entrapment are affirmative defenses, but self-defense is an ordinary defense.

Front 13

Arrests: Probable Cause Req't and when warrant is req'd

Back 13

Under the 4th Amendment of the U.S. Constitution, a person has the
right to be free from unlawful searches and seizures by the government.
Seizure under the 4th Amendment includes arrests. For an arrest to be
proper, the police officer MUST have probable cause. Probable cause
arises when the circumstances gives a police officer reasonable
suspicion to believe that a crime has occurred. A police officer does
not need firsthand knowledge to have probable cause; it can be based on
the firsthand knowledge of another. If an arrest is conducted in a public
place, probable cause is all that is required. But, if a police officer
arrests someone in or at their home, a warrant is required unless exigent
circumstances exist.

Front 14

Auto stops (arrest and detention)

Back 14

A stop of a vehicle may be conducted properly so long as the police have
some reasonable suspicion to believe that the law has been violated.
The reasonable suspicion required for a valid stop does not have to rise
to the level of probable cause. However, for a search after a traffic stop
to be lawful, the police officer needs to acquire probable cause before
initiating the search. Probable cause requires proof of a “fair
probability” that evidence or contraband will be found in area being
searched.

Front 15

Warrant req't for all searches, unless an exception applies:

Back 15

The 4th Amendment of the U.S. Constitution provides that everyone should be free from unreasonable searches and seizures.
To assert one's 4th Amendment right, there has to be government action and a defendant must have a reasonable expectation of privacy in the areas searched and the items seized. A police officer will need a warrant to conduct a search and to seize items.
Evidence obtained without a valid warrant should be excluded unless it falls under the exceptions that permit a warrantless S & S.

Front 16

Warrantless search exceptions:

Back 16

(1) a search incident to an arrest;
(2) plain view doctrine;
(3) the automobile exception;
(4) consent;
(5) stop and frisk;
(6) inventory searches;
(7) exigent circumstances; and
(8) where the U.S Supreme Court has concluded there is a special need. A police officer’s good faith reliance on a defective warrant is irrelevant in New York because New York DOES NOT recognize the "good faith" exception to the warrant requirement rule.

Front 17

Search incident to arrest

Back 17

Under the 4th Amendment of the U.S. Constitution, a police
officer who has probable cause to make an arrest can make a
warrantless search incident to a lawful arrest. In this regard, he
can search not only the suspect’s person, but also areas within
the suspect’s "wingspan". If the suspect is arrested in an
automobile, the "wingspan" includes the passenger’s
compartment. In addition, pursuant to a lawful arrest, a police
officer can make a warrantless search of an automobile if he has
reason to believe it contains contraband. The police officer can
search any containers found in the car that might contain the
contraband. However, New York affords a suspect greater 4th
Amendment protection in that after the suspect has been removed
from the car, the police will need a warrant to search the car.

Front 18

Consent

Back 18

Consent is an exception to the warrant requirement if it is given
freely, voluntarily, and intelligently. A third person with
possessory rights in property may consent to a search, but that
person must have authority. If the police have reason to know
that the person consenting might not have authority, and they
continue the search, the search is unlawful.

Front 19

Two or more ppl living there (consent)

Back 19

Where two or more people share common authority over the residence or premises, any one of them may consent to a lawful search. However, a police officer may only search common areas of the residence and private areas of the person providing the consent. A warrantless search of private areas (i.e. bedrooms and
locked areas) of persons not present is generally unlawful.

Front 20

Automobile exception to search warrant:

Back 20

The automobile exception allows a warrantless search of a car
where the police have probable cause that either contraband
OR evidence of a crime will be found in the vehicle. If there is
probable cause, the police can search the entire car AND any
packages, luggage, or containers that may reasonably contain
the items for which there is probable cause. In order to search a
vehicle after a traffic stop, the police officer would need to
acquire probable cause prior to searching the vehicle. A police
officer does not need firsthand knowledge to have probable
cause; it can be based on the first hand knowledge of another.

Front 21

plain view exception

Back 21

Under the plain view exception, the police may seize evidence
without a warrant if (1) the police are lawfully present on the
premises, (2) the police have lawful access to the evidence, AND
(3) it is clear that the evidence is illegal by just looking at it.

Front 22

Stop and frisk

Back 22

The police may make a request for information anytime except
on "whim or caprice." A police officer may stop and inquire if
the police officer has reasonable suspicion that criminal activity
is afoot. A stop and inquire allows only a brief detention for
questioning, after which the suspect must be released. A police
officer may only stop and frisk a person if the police officer has
reasonable suspicion that the person is committing, has
committed, or is about to commit a crime. Under the plain feel
doctrine, during the frisk a police officer may only seize items he
or she reasonably believes is a weapon. Reasonable suspicion is
defined as the quantum of knowledge sufficient to induce an
ordinarily prudent and cautious person under the circumstances to
believe that criminal activity is at hand. Courts use a sliding
scale based on the particular factual circumstances to determine
whether reasonable suspicion was present to conduct a stop and
frisk.

Front 23

Prosecution's comment on D's silence after miranda rights attach

Back 23

If a defendant has invoked his right to remain silent, the defendant’s
silence cannot be commented on by the prosecution or be used to
incriminate him. However, if the prosecution improperly comments on
the defendant's invocation of his Miranda rights, such comment will not
provide grounds for reversal (should the defendant ultimately be
convicted) if the prosecution can prove that such error was harmless
error. A showing of harmless error requires the prosecution to prove
that there was sufficient evidence for a finding of guilt beyond a
reasonable doubt even absent the constitutional violation.

Front 24

Prosecutor duty to disclose exculpatory information

Back 24

Under the New York Criminal Procedure Law, upon request by the
defendant, the prosecutor in a criminal case MUST turn over certain
relevant evidence to the defense. This includes past grand jury
testimony, any reports (scientific or medical) the prosecution has in its
possession, along with other materials, including the prior statement of a
prosecution witness made to any law enforcement official to be used at
trial, as well as statements in possession of law enforcement officials
even if they will not be used by the prosecution at trial. This rule
extends to ALL statements that the prosecutor has in his possession, as
well as any statements he could obtain through reasonable efforts. In
addition, under the Rosario doctrine, the prosecutor must turn over to the
defense any relevant prior or recorded statements of persons to be called
as witnesses

Front 25

prosecutor fails to disclose exculpatory evidence

Back 25

Generally, a prosecutor's failure to disclose material exculpatory
evidence is grounds for overturning a conviction. However, a conviction
may stand if the failure to disclose was harmless error. Harmless error
occurs when the evidence against the defendant is overwhelming, such
that the prosecution could and would have proved all of the elements of
the crime beyond a reasonable doubt even if the potentially exculpatory
evidence had been disclosed.

Front 26

Exclusionary rule/fruit of poisonous tree

Back 26

Under the exclusionary rule, evidence MUST be suppressed if it was
obtained illegally. The exclusionary rule DOES NOT apply to evidence
erroneously obtained when executing a valid search warrant if the
officer’s mistake was reasonable. Moreover, any "fruits" of the illegal
search must also be suppressed, unless (a) it is shown that the police had
an independent source for the secondary evidence (where there is a
source for discovery and seizure of the evidence that is distinct from the
original illegal source), (b) the discovery of evidence would have been
inevitable regardless of the illegality, OR (c) through the attenuation
doctrine (which admits evidence where a defendant’s free will has been
restored through the passage of time and/or intervening events).

Front 27

Miranda violation exclusionary rule stuff

Back 27

In addition, there are limitations on the exclusionary rule as applied to
Miranda violations. Statements obtained in violation of a suspect’s
Miranda rights are inadmissible in the Prosecution’s case-in-chief.
BUT, they may be used to impeach a defendant on cross examination.
However, such statements cannot be used to impeach the testimony of
third-party witnesses. In addition, the following exceptions apply toMiranda violations: (1) Failure to give Miranda warnings DOES NOT
require suppression of the physical fruits found because of the
statements (as long as the statements are voluntary); (2) Subsequent
statements made after Miranda warnings are admissible, UNLESS a
non-Mirandized previous statement was obtained through the use of
inherently coercive police tactics offensive to due process; and (3) if the
Harmless Error Rule applies – if evidence in violation of Miranda
rights was improperly admitted at trial, a guilty verdict will stand if the
prosecution can prove beyond a reasonable doubt that the error was
harmless because the defendant would have been convicted even without
the tainted evidence.

Front 28

5th amednemtn pre-charge Lineup challenge

Back 28

Under the 5th Amendment of the U.S. Constitution, upon request a
defendant is entitled to have counsel present during a pre-charge
interrogation. However, the right to counsel under the 5th Amendment
does not apply to pre-charge lineups because lineups are not considered
interrogatory in nature as they are not likely to elicit a verbal response
from the defendant.

Front 29

6th amendment lineup

Back 29

Under the 6th Amendment of the U.S. Constitution, a person has a right
to counsel after being formally charged with a crime. Therefore, the 6th Amendment mandates that a person has a right to counsel at a postcharge
lineup. However, a person does not have a 6th Amendment right
to counsel at a pre-charge lineup because the 6th Amendment right has
not yet attached because the person has not been formally charged with a
crime.

Front 30

NY approach to lineups

Back 30

The New York approach is somewhat broader than the federal
requirements discussed above. New York protects the indelible right to
counsel whenever there is significant judicial activity in the case. In
New York, the general rule is that before the defendant is formally
charged with a crime, he has NO right to counsel at a pre-charge
lineup. However, there is a narrow exception to this rule in New York.
Where the police are aware that the defendant is represented by counsel
AND the defendant makes a request for counsel, the police MUST
provide it at a pre-charge line-up.

Front 31

Excluding confessions based on Constitution

Back 31

If a confession is obtained in violation of the defendant's constitutional rights, such evidence is inadmissible under the exclusionary rule. A confession may be excluded in any one of the four following ways.

Front 32

14th amend confession

Back 32

if a confession is the product of police coercion that
overbears the suspect’s will, then confession is inadmissible.

Front 33

5th amendment

Back 33

a person has a right
not to incriminate himself and must be given Miranda warnings. Those
warnings include the right to remain silent and the right to counsel.
Miranda rights attach when there is a custodial interrogation of a
suspect. A custodial interrogation occurs when (1) the atmosphere,
viewed objectively, is characterized by police domination and coercion
such that a person’s freedom of action is limited in a significant way
AND (2) the police knew or should have known that their conduct was
likely to elicit an incriminating response. However, Miranda rights do
not apply to any spontaneous statements made by a person. In addition,
a suspect may waive his Miranda rights.

Front 34

Waiving rights confession

Back 34

Under federal law, a waiver is only valid if it is knowingly, intelligently
and voluntarily made. However, New York has a much more
defendant-protective right to counsel and provides for an indelible right
to counsel. Once protection under New York’s indelible right to counsel
attaches, a waiver MUST be made in the presence of counsel.

Front 35

NY indelible right to counsel

Back 35

Under the 6th Amendment of the New York State Constitution, a person has an indelible right to counsel, which attaches when: (a) the person is subject to police activity overwhelming to a lay person and the person requests counsel; (b) upon the filing of an accusatory instrument; (c) upon arraignment; OR (d) upon significant judicial activity. After the indelible right to counsel attaches, if the police know that a person is
represented by counsel on that specific charge, then the person CANNOT be questioned without his lawyer present regarding those charges, unless there is a valid waiver.

Front 36

6th amendment confession rights

Back 36

a criminal defendant has a right to counsel when formally charged. After a defendant is formally charged, he CANNOT be questioned without his lawyer present regarding the charges filed against him. If a defendant is
questioned without his attorney after he is formally charged, any statements he makes are inadmissible, unless there is a valid waiver