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172 Cards in this Set
- Front
- Back
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Elements of Crime: Physical Act
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- voluntary body movement
- exceptions: sleep walking, convulsions, or when someone else moves D - failure to act or omission - need legal duty (statute, contract/agreement, relationship, voluntary assumption of care, creation of peril) |
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Elements of Crime: Mental State
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specific intent: not just desire to do the act, but also to achieve specific result
- general intent: generally aware of factors constituting crime - malice: D acts intentionally or with reckless disregard of obvious risk -Strict Liability: no mental state needed |
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Elements of Crime: Mental State
Specific Intent Crimes |
- assault
- 1st Degree murder - larceny -embezzlement - false pretenses - robbery - forgery - burglary - solicitation - conspiracy - attempt |
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Elements of Crime: Mental State
Mistake |
mistake of fact: reas mistake is a defense to any crime, except SL
- unreas mistake only a defense to specific intent mistake of law: no defense unless knowledge is an element of the crime |
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Elements of Crime: Mental State
NEW YORK ONLY |
- intentionally: conscioius object is to accomplish particular result
- knowingly: D aware of what he is doing - recklessly: D is aware of substantial & unjustifiable risk yet consciously disregards it - negligently: D should have known about a substantial & unjustifiable risk - strict liability: no mental state needed |
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Elements of Crime: Mental State
NEW YORK ONLY mistake |
- mistake of fact: defense if it negates mental state
- mistake of law: never a defense |
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Element of Crime: Causation
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Actual: the bad result would not have happened 'but for' D conduct
- incl. accelerating causes Proximate: bad result is a natural and probable consequence of D conduct - foreseeable, fairness |
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Element of Crime: Causation
'Eggshell Victim' |
D will be considered a proximate cause even if victim's pre-existing weakness contributed to bad result
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Elements of Crime: Concurrence
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D must have the mental state at the same time he engages in the act
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Crimes Against the Person: Battery
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- unlawful
- application of force to another - resulting in bodily injury or offensive touching - General Intent |
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Crimes Against the Person: Assault
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- attempted battery (swing & miss)
or - intentional creation - of reasonable apprehension in the mind of victim - of immediate bodily harm - specific intent |
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Crimes Against the Person: Assault
NEW YORK ONLY |
- intentionally
- causing physical injury - to another (add a weapon/injury, add a degree) |
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Crime Against the Person: Homicide: Murder
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- causing death of another
- with malice aforethought First Degree: intentional killing committed w/premeditation & deliberation second degree: everything else felony murder: killing during an eenumerated felony |
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Crimes Against the Person: Homicide: Voluntary Manslaughter
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- intentionally killing
- committed in heat of passion - after adequate provocation key: no cool off time |
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Crimes Against the Person: Homicide: Involuntary Manslaughter
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- killing commited w/criminal negligence or
- killing commited during a crime if it is not felony murder |
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Crimes Against the Person: Homcide: Felony Murder
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- any killing caused during the commission of or attempt to commit a felony
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Crimes Against the Person: Homcide: Felony Murder Limitations
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- D must be guilty of underlying felony
- felony must be inherently dangerous - felony must be separate from killing itself - kiling must be during the felony or during immediate flight - killing must be in furtherance of felony - death must be foreseeable - victim must not be co-felon |
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Crimes Against the Person: Homicide: Felony Murder: Vicarious Liability
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- if one of the co-felons causes the death, all of the other co-felons will be guilty of felony murder
- also applies if actual killing is by 3rd party, so long as one of the felons is proximate cause |
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Crimes Against Person: Homicide: Murder: 1st Degree
NEW YORK ONLY |
intent to kill with at least one aggravating factor
(MIA Intimidates Cops) |
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Crimes Against Person: Homicide: Murder: 1st Degree Aggravating Factors
NEW YORK ONLY |
MIA Intimidates Cops
- murder for hire - intenional killng during felony - additional people (more than1) - Intimidation of witness -Cops or other law enforcement |
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Crimes Against the Person: Homicide: Murder: 2nd Degree
NEW YORK ONLY |
- intent to kill
- extreme recklessness (utter disregard for human life) generally must involve putting more than 1 person in danger |
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Crimes Against the Person: Homicide: Felony Murder
NEW YORK ONLY |
same as common law except:
6 Underlying Felonies: BRAKES - Burglary - Robbery - Arson - Kidnapping - Escape - Sexual Assault D need not be convicted of underlying felony, just sufficient evid that he commited it |
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Crimes Against the Person: Homicide: Felony Murder: Non-Slayer Defense
NEW YORK ONLY |
- D did not do the killing
- D did not have a deadly weapon - had no reason to believe co-felons had deadly weapon - no reason to believe co-felons intended to do anything that could result in death |
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Crimes Against the Person: Homicide: 1st Degree Manslaughter
NEW YORK ONLY |
type a: intent to cause serious physical injury
type b: extreme emotional disturbance (heat of passion) |
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Crimes Against the Person: Homicide: 2nd Degree Manslaughter
NEW YORK ONLY |
- recklessness
- D is aware and consciously disregards a substantial and unjustifiable risk of death |
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Crimes Against the Person: Homicide: Criminally Negligent Homicide
NEW YORK ONLY |
D should have known of a substantial and unjustifiable risk of death
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Crimes Against the Person: Homicide: Aggravated homicide
NEW YORK ONLY |
- victim is police officer killed in line of duty
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Crimes Against the Person: Homicide: Vehicular Homicide
NEW YORK ONLY |
death caused by drunk driving
- if DWI results in injury only, vehicular assault |
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Crimes Against the Person: Confinement Offenses: False Imprisonment
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- unlawful
- confinement of a person - without consent general intent |
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Crimes Against the Person: Confinement Offenses: Kidnapping
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- false imprisonment plus
- either moving the victim or - concealing the victim in a secret place general intent |
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Crimes Against the Person: Confinement Offenses: Unlawful Imprisonment
NEW YORK ONLY |
- unlawfully restraining someone
- without their consent - w/knowledge that the restriction is unlawful |
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Crimes Against the Person: Confinement Offenses: Kidnapping
NEW YORK ONLY |
second degree: abducting someone
first degree: second degree plus - ransom - more than 12 hours w/intent to commit a felony (rape, rob) - death of victim |
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Crimes Against the Person: Confinement Offenses: kidnapping + homicide
NEW YORK ONLY |
- killed accidentally: Murder 2 (felony murder)
- killed intentionally: Murder 1 |
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Crimes Against the Person: Sex Offenses: Forcible Rape
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- sex w/o victims consent
- accomplished by: force, threat of force or victim is unconscious general intent |
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Crimes Against the Person: Sex Offenses: Statutory Rape
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- sex w/someone under the legal age of consent (NY-17)
strict liability under MPC, reasonable mistake re: age is a defense |
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Crimes Against Property: Theft Related Offenses: Larceny
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- taking and carrying away of the property of another with the intent to steal
- key is possession if D validly possesses property, cant be guilty - if D intends to give it back, not larceny - if D erroneously thinks property is his, no larceny |
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Crimes Against Property: Theft Related Offenses: Larceny-Continuing Trespass
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- if D wrongfully takes property w/o intent to steal but later forms intent, still guilty of larceny (tho not burglary)
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Crimes Against Property: Theft Related Offenses: Embezzlement
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- conversion of the personal property of another
- by a person already in lawful possession of property - with intent to defraud specific intent |
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Crimes Against Property: Theft Related Offenses: Embezzlement vs Larceny
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- for embezzlement D must already have lawful possession
where possession requires the authority to exercise discretion |
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Crimes Against Property: Theft Related Offenses: False Pretenses
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- obtaining title to the personal property of another
- by an intentional fals statement (of past or present event) - with the intent to defraud |
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Crimes Against Property: Theft Related Offenses: Larceny by Trick
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- D obtains only possession, not title, as a resutl of false statement
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Crimes Against Property: Theft Related Offenses: Robbery
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- larceny from another's person or presence
- by force or threat of immediate injury - threat does not include future injury or embarrassment intent to steal |
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Crimes Against Property: Theft Related Offenses: Larceny
NEW YORK ONLY |
- any crime that would be larceny, embezzlement, false pretenses or larceny by trick at common law
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Crimes Against Property: Theft Related Offenses: Larceny: Degrees
NEW YORK ONLY |
1st Degree: more than $1M
2nd Degree: more than $50K 3rd Degree: more than $3K 4th Degree: more than $1K everything else, petit larceny |
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Crimes Against Property: Theft Related Offenses: Robbery
NEW YORK ONLY |
3rd Degree: forcible stealing
2nd Degree: forcible stealing plus: - aid from another or - victim is injured or - car is stolen 1st Degree: forcible stealing plus: - victim is seriously injured or - D uses/displays firearm if D can show gun was unloaded or inoperable, reduce to 2nd degree |
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Crimes Against Propery: Theft Related Offenses: Forgery
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- making or altering a writing
- so that it is false intent to defraud |
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Crimes Against Property: Theft Related Offenses: Uttering
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- offering as genuine a forged instrument
intent to defraud |
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Crimes Against Property: Habitation Offenses: Burglary
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- breaking & entering the dwelling of another
- at night - with the intent to commit a felony inside (specific intent) concurrence: if D develops requisite intent later, insufficient |
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Crimes Against Property: Habitation Offenses: Burglary
NEW YORK ONLY |
3rd Degree: unlawfully entering & remaining in a building w/intent to commit a felony inside
(no concurrence issue) 2nd Degree: 3rd Degree plus - building is a dwelling or - non participant injured or - D carries a weapon 1st Degree: D knows it's a dwelling plus - non participant injured or - D carries a weapon |
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Crimes Against Property: Arson
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malicious buring of a building
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Crimes Against Property: Arson
NEW YORK ONLY |
4th Degree: reckless burning of building (incl charring)
3rd Degree: intentional burning of a building 2nd Degree: 3rd Degree plus D knows or shouldve known a person was inside 1st Degree: 2nd degree plus explosive device |
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Accomplice Liability
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- aiding or encouring the person committing the crime
- with intent that the crime be committed |
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Accomplice Liability
NEW YORK ONLY |
- accomplice need not specifically intend to aid conduct
- possible to be an accomplice to negligent or reckless crime |
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Accomplice Liability: Scope
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an accomplice is guilty of:
- all crimes he aided and encouraged and -all other foresseable crimes committed along w/the aided crime - if principal not prosecuted or has an individual defesne, accomplice still guilty |
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Accomplice Liability: Who does it NOT apply to
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those with:
- mere presence - mere knowledge members of protected class |
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Accomplice Liability: Mere Knoweldge
NEW YORK ONLY |
can make someone guilty of criminal facilitation
- knowingly aiding in commission or probable commission |
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Liability for Conduct of Others: Withdrawal
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- encourager who changes mind may withdraw by simply discouraging crime before it's committed
- aider who changes mind must either neutralize assistance or prevent crime |
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Liability for Conduct of Others: Renunciation
NEW YORK ONLY |
- must make substantial effort to prevent commission
- voluntarily and completely renounces criminal purpose - withdraws prior to commission - affirmative defense |
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Liability for Conduct of Others: Accessory after the Fact
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- Assist a principal who has committed a felony
- with knowledge that crime has been committed and - with intent to help principal avoid arrest or conviction |
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Liability for Conduct of Others: Hindering Prosecution
NEW YORK ONLY |
- not liable for actual crime, separate lesser offense
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Inchoate Offenses: Solicitation
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- asking another to commit a crime with the intent the crime be committed
- completion/agreement unnecessary (crime is in the asking) |
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Inchoate Offenses: Conspiracy
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- agreement between 2 or more people to commit a crime
- an overt act in furtherance of crime - completion unnecessary |
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Inchoate Offenses: Conspiracy
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4th Degree: conduct urged is a felony or D is over 18, other person is under 16 and conduct is a felony
3rd Degree: D is over 18, other party under 16 and conduct is felony 2nd Degree: same as solicitation 1st Degree: same as solicitation |
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Inchoate Offense: One Person Conspiracy
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CL: no 2 guilty minds
NY: yes even if other party is acquitted or just pretended |
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Inchoate Offense: Conspiracy: Vicarious Liability
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- in addition to conspiracy D will be liable forother crimes committed by co-conspirator if:
- those crimes were in furtherance of conspiracy objective - they were foreseeable |
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Inchoate Offense: Conspiracy: Vicarious Liability
NEW YORK ONLY |
No vicarious liability for crimes committed by co-conspirator
- D cannot be convicted on uncorroborated testimony of co-conspirator |
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Inchoate Offenses: Attempt
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- conduct that gets dangerously close to the commission of crime (DMV)
- specific intent (no attempt for unintentional crimes) |
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Inchoate Offenses: Attempt: Impossibility
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factual impossibility is NOT a defense to attempt but legal impossibility is
where what D was trying to do was not actually illegal |
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Inchoate Offenses: Attempt: Withdrawal
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withdrawal is not a a defense!
- however, once D withdraws, no longer vicariously liable for other crimes |
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Inchoate Offenses: Attempt: Withdrawal
NEW YORK ONLY |
withdrawal can be a defense if:
- D voluntarily and completely renounces solicitation, conspiracy or attempt and - renunciation is based on change of heart, not fear of getting caught or failing - if object of crime does not occur, D only has a defense to the anticipatory crimes if his efforts prevented commission |
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Inchoate Offenses: Merger
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- every element of lesser offense is also an element of greater offense and LIO merges
- if it's possible to be convicted of both, not LIO |
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Inchoate Offenses: Merger: Specific Crimes
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- Attempt: merges
- Conspiracy: does not merge - solicitation: CL merges, NY does not merge so under common law, everything merges but conspiracy in NY nothing merges but attempt |
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Defenses: Insanity: M'Naughten
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- D did not know act was wrong or
- Did not understand nature of act |
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Defenses: Insanity: MPC
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D lacked capacity to either:
- appreciate criminality of conduct or - conform his conduct to law |
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Defenses: Insanity: Irresistible Impulse Test
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- D eiter was unable to control his actions or
- was unable to conform his conduct to law not recognized by NY |
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Defenses: Insanity: NEW YORK
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D lacked substantial capacity to either
- understand nature of act or - appreciate wrongfulness of conduct must notify prosecution of intent to raise |
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Defenses: Insanity vs Incompetence
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- insanity: insane at time of crime (if yes, acquitted)
- incompetent: insane at time of trial (if yes, adjourn) |
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Defenses: Intoxication
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- involuntary: can be a defense to any crime (insanity test applies)
- voluntary: can be a defense to specific intent crimes if it prevents D from forming intent |
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Defenses: Intoxication
NEW YORK ONLY |
- voluntary intoxication can be a defense to intent crimes and knowledge crimes if it prevents D from forming intent
- cannot be a defense to crimes of recklessness, negligence or S/L |
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Defenses: Infancy
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- if age is under 7: no prosecution
- if age is under 14: rebuttable presumption against prosecution - if age is over 14: prosecution allowed |
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Defenses: Infancy
NEW YORK ONLY |
- if age is under 13: juvenille delinquency in family court
- if age is 13: prosecute as adult for 2nd degree murder - if age is 14 or 15: prosecution as adult for serious crimes against person or property if age is 16 and up: adult for any crime |
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Defenses: Self Defense: Non Deadly Force
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- reasonably necessary
- to protect against an imminent use - of unlawful force against himself or another |
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Defenses: Self Defense: Deadly Force
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- facing a threat of death or serious injury
- may NOT use if he is the initial aggressor unless aggressor withdraws and victim escalates from ND to D |
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Defenses: Self Defense: Deadly Force
NEW YORK ONLY |
- initial aggressor must withdraw before resorting to deadly force
- does not recognize sudden escalation - D must retreat before using deadly force, unless: unable to do so safely or D is in his own home |
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Defenses: Self-Defense: Mistake
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- reasonable mistake: still claim SD
- unreasonable: no self defense |
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Defenses: Self Defense: Mistake
NEW YORK ONLY |
- unreasonable mistake is an imperfect self defense; reduces murder to voluntary manslaughter
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Defenses: Self-Defenses: Preventing Crime
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- NDF may be used if necessary
- DF only to prevent felony risking human life |
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Defenses: Self-Defense: Preventing Crime
NEW YORK ONLY |
DF may be used to prevent rape, robbery, arson, kidnapping or burglary
- no retreat required |
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Defenses: Self Defense: Property
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- DF may not be used to defend property
- may be used to prevent burglary in own home |
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Defenses: Self Defense: Resisting Arrest
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- if D knows or reas should know that the person performing arrest is an officer, may use ND force to resist an unlawful arrest
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Defenses: Self Defense: Resisting Arrest
NEW YORK ONLY |
force may NOT be used to resist an arrest, even if unlawful, unless officer uses excessive force
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Defenses: Necessity
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- defense to criminal conduct if D reasonably believed that the conduct was necessary to prevent greater harm
- cannot be a defense to homicide |
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Defenses: Necessity
NEW YORK ONLY |
- harm avoided must be greater than harm caused
- can be a defense to homicide |
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Defenses: Duress
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- D forced to commit crime under threat of death/serious injury
- no defense to homicide (IS a defense in NY) |
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Defenses: Entrapment
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- Govnt unfairly tempted D to commit the crime (very narrow)
- criminal design must originate w/govnt and - D was not predisposed to commit crime affirmative defense in NY |
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Fourth Amendment Search & Seizure: 8 Steps
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1. Is there govnt conduct
2. Did search/seizure invade reasonable expectation of privacy 3. Was the search authorized by facially valid warrant 4. Does an officer's good faith save defect (does not apply in NY, skip to step 6) 5. Was the search warrant properly exercised by police 6. Is search warrant valid under an exception to warrant requirement? (ESCAPIST) 7. Can prosecutor use evid gathered in unconstitutional search/seizure against D in court? 8. Is evidence introduced fruit of posionous tree? |
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Fourth Amendment Search & Seizure: Step One- Govnt Conduct
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3 Categories of Govnt Actors
- publicly paid police officer - private citizen acting at direction of police - privately paid police deputized w/arrest power |
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Fourth Amendment Search & Seizure: Step 2-REP
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protected areas:
- person (ie body) - house (incl curtilage) - papers - affects (purses, backpack) unprotected: Pam Achieved A Glorious Victory Over Her Opponents - Paint scrappings - Account records - Airspace - Garbage - Voice - Odors emitted from luggage or car - Handwriting - Open fields |
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Fourth Amendment Search & Seizure: Step 2- REP
Standing |
to challenge must have standing:
- owners of premises searched: always -residents of premises: always - overnight guests: always but ltd to areas those guests can reas expect to access - indiv using another's residence for business: never - owner of property seized: only if there was REP in area where property was seized - passenger in car: only if had REP in item |
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Fourth Amendment Search & Seizure: Step 3- Valid Warrant: Probable Cause
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Probable Cause
- fair probablity that contraband or evid of crime will be found - informant tips must be sufficiently corroborated by police |
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Fourth Amendment Search & Seizure: Step 3-Valid Warrant: Probable Cause & Informant Tips
NEW YORK ONLY |
- must demonstrate reliability of source and basis of informant's knowledge
- basis may be satisfied by police observation |
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4th Amendment: Step 3- Valid Warrant: Particularity
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- search warrant must specify place to be searched and items to be seized
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4th Amendment: Step 4
Good Faith Exception (does not apply in NY) |
- good faith overcomes constitutional defects in PC and particularity, unless:
- warrant or affidavit supporting warrant is egregiously lacking - officer or DA lied or misled magistrate - magistrate was biased |
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4th Amendment: Step 5
Proper Execution |
- did officers exceed scope
- did police comply with K&A rule (exclusionary rule does not apply to viol of k&a) - |
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4th Amendment: Exceptions to Knock & Announce Rule
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does not apply where:
- officer reasonably believes that doing so would be fuitle or - dangerous or - would inhibit the investigation |
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4th Amendment: Step 6
exceptions to warrant requirement ESCAPIST |
Exigent Circumstances
Search Incident to Arrest Consent Automobile Plain View Inventory Special Needs (ie drug testing) Terry stop & frisk |
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Exceptions to Warrant Requirement: E is for Exigent circumstances
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- evanescent evidence and hot pursuit
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Exceptions to Warrant Requirement: S is for Search incident to arrest
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- concerns of officer safety and need to preserve evidence
- search must be contemporaneous w/arrest - limited to wingspan |
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Exceptions to Warrant Requirement: S is for Search incident to arrest
wingspan limitation NEW YORK ONLY |
- to search container within wingspan, officer must suspect arrestee is armed
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Exceptions to Warrant Requirement: S is for Search incident to arrest
(automobiles) |
- scope: interior cabin, incl closed contianer but not trunk
searching after suspect placed in squad car: - Gant: Ok, provided there was reason to believe vehicle may contain evidence relating to offense for which arrest was made |
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Exceptions to Warrant Requirement: S is for Search incident to arrest
(automobiles after arrest) NEW YORK ONLY |
- once occupant is out of the car, police cannot search closed containers w/o warrant
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Exceptions to Warrant Requirement: C is for Consent
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- must be voluntary and intelligent
- if premises are shared, either party can consent - if co tenants disagree, objecting party prevails as to areas w/n dominion and control |
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Exceptions to Warrant Requirement: A is for Automobile
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- officer needs PC to believe contraband or evidence of crime will be found in vehicle
- passenger cabin PLUS trunk - may only open containers that may reasonably contain items for which there was PC to search |
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Exceptions to Warrant Requirement: P is for Plain view
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officer must have:
- lawful access to place from which item can be seen - lawful access to item and the criminality of item must be immediately apparent |
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Exceptions to Warrant Requirement: P is for Plain view
(obscene materials) NEW YORK ONLY |
- plain view seizure of obscene material requires warrant
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Exceptions to Warrant Requirement: I is for Inventory
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- arrestees booked into jail (person/effects)
- impounded vehicles |
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Exceptions to Warrant Requirement: S is for Special needs
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- random drug testing
- probationer's home if believe contraband is present - govnt employees' desk & files - students' effects in public school - at the border wrt searches of persons/effects |
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Exceptions to Warrant Requirement: T is for Terry
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stop: brief detention or seizure for purpose of investigating suspcious conduct
frisk: pat down of body & outer clothing for weapons standard: specific and articulable facts that suggest criminal activity is present or suspect armed/dangerous |
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Exceptions to Warrant Requirement: T is for Terry
what can be seized |
- always a weapon
- contraband if recognized w/o manipulation |
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Exceptions to Warrant Requirement: T is for Terry
NEW YORK ONLY what can be seized |
- weapon only
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Exceptions to Warrant Requirement: T is for Terry
when are you seized for 4th amendment purposes |
based on totality of circumstances, a reas person would not:
- feel free to leave or decline officer request for questions |
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Exceptions to Warrant Requirement: T is for Terry
when are you seized for 4th amendment purposes, while being pursued |
- only seized if he submits to officer authority by stopping or
- officer physically restrains him IN NEW YORK: police pursuit is the seizure |
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Exceptions to Warrant Requirement: T is for Terry
who is seized during traffic stop |
both driver and all passengers
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Drug Sniff of Car during Traffic Stop: Allowed?
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Yes, as long as it does not unreasonably prolong stop
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Unconstitutional Search & Seizure: Exclusionary Rule
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- unconstitutionally obtained evidence is excluded from case in chief
- may be used to impeach D testimony on cross |
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Unconstitutional Search & Seizure: Exclusionary Rule
Does Not Apply to: |
- grand jury proceedings
- civil proceedings - parole revocation hearing |
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Unconstitutional Search & Seizure: Exclusionary Rule
Knock and Announce violations |
- failure to comply with k&a rule does not require suppression of evid subsequently discovered
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Fruit of Posionous Tree: Admissibility
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- evidence derived from exploiting prior unconstitutional conduct
inadmissible in prosecution's case in chief unless est. break in causal link: - indpt source doctrine - inevitable discovery doctrine - attenuation (D free will restored) |
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Wiretapping
Warrant Requirement |
wiretapping requires warrant containing
- probable cause - person to be overheard - conversations to be recorded - time (strictly ltd time pd) |
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Eavesdropping
Warrant Requirement |
no 4th amendment protection
- we assume the risk that the other party will not keep conversation confidential - applies when speaking to someone wearing a wire |
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Law of Arrest: Elements
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- police take a person into custody
- against their will - for interrogation or prosecution std of proof: probable cause |
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Law of Arrest: 4th Amen permits custodial arrest for:
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- any offense even those punishable by fine
- state laws often more limited but this wont be a 4th amen issue |
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Law of Arrest: De Facto Arrest
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- police compel individual to station for questioning
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Law of Arrest: Warrant Requirement
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- no warrant required in public place
- in their own home: warrant required (absent emergency) - home of 3rd party: arrest plus search warrant |
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Law of Arrest: Common Enterprise
(traffic stop context) |
- if evid of crime suggests common unlawful enterprise between driver and passenger, police may arrest all
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Law of Arrest: Sliding Scale of Police Authority
NEW YORK ONLY |
1. Police can approach and request info on whim
(right not to respond, run away) 2. Right to Inquire where police have founded suspicion that criminal acitivity is afoot 3. Forcible stop, Detention & Frisk require reasonable suspcion that individual has committed or is committing a crime 4. Police Pursuit must be based on reasonable suspcion, impedes individual freedom of movement 5. Arrest requires probable cause that individual has committed crime |
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Confessions: Grounds to Challenge
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- due process clause of 14th amendment
(confession was product of police coercion; involuntary) - 6th Amendment Right to Counsel (attaches when D is formally charged, not upon arrest) - 5th Amendment Miranda Doctrine (see separate card) |
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Confessions Grounds to Challenge
NEW YORK ONLY indeliable right to counsel |
- attaches whenever there is signifcant judicial activity before the filing of an accusatory instrument such that D would benefit from counsel
- waiver must occur in presence of attorney |
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Confessions: Fifth Amendment Miranda Doctrine
core miranda warnings |
- right to remain silent
- anything you say can & will be used against you - right to an attorney - if you cant afford one, one will be appointed |
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Confessions: Fifth Amendment Miranda Doctrine
when are warnings necessary |
custodial interrogation
custody: police domination and coercion such that freedom of action is limited interrogation: any conduct known or should be known to elicit incriminating responses exception for public safety |
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Confessions: Fifth Amendment Miranda Doctrine
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unless public safety exception applies, incriminating testimonial response obtained thru custodial interrogation are admissible only if police first obtain valid waiver of suspects Miranda rights
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Confession: Fifth Amendment Miranda Doctrine Interrogation Requirement
NEW YORK ONLY Spontaneous Statements |
- spontaneous statements made by D w/o inducement, provocation or encouragement may be admitted
- if not blurted out, not admissible as confession but still admissible for impeachment |
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Confessions: Fifth Amendment Miranda Doctrine
valid miranda waiver |
- knowing & intelligent
- voluntary |
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Confessions: Fifth Amendment Miranda Doctrine
valid miranda waiver for child NEW YORK ONLY |
if police use concealment/deceit to keep parent away from child, waiver is invalid
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Confessions: Fifth Amendment Miranda Doctrine
asserting miranda rights |
- if suspect invokes right to remain silent, police can resume questioning later if:
scrupulously honored request and obtained valid Miranda warning - suspect requests counsel: all interrogation must cease unless initiated by suspect |
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Confessions: Fifth Amendment Miranda Doctrine
admissibility of statements made in violation of Miranda |
-incriminating statements obtained in viol of Miranda are inadmissible in case in chief but may be used to impeach D on cross
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Confessions: Fifth Amendment Miranda Doctrine
unwaived but voluntary statements |
failure to give suspect warning does not require suppression of physical fruits of unwaived but voluntary statement
- if statement is inadmissible due to Miranda violation, subsequent statements ARE admissible if made after obtaining waiver |
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Confessions: Fifth Amendment Miranda Doctrine
NEW YORK ONLY Arthur Hobson rule |
- length of interrogation and custody are factors in determining voluntariness of confession
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Pre-Trial Identification: Types
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lineup
show up photo array |
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Pre-Trial Identification: Substantive Challenge: Denial of Right to Counsel
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- line up and show up that take place after charging (does not apply to photo arrays)
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Pre-Trial Identification: Substantive Challenge: Denial of Right to Counsel
NEW YORK ONLY pre-charging |
right to attorney at line up conducted before charging if:
- police are aware you have counsel and - you request the presence of counsel |
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Pre-Trial Identification: Substantive Challenges: Due Process Std
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where process is so unnecessarily suggestive it creates substantial likelihood of misidentification
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Pre-Trial Identification: Exclusion of Witness in court ID
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witness in-court ID excluded unless prosecution can show:
- id based on observations other than unconstitutional process - witness opportunity to view suspect - certainty of id - specificity of descr. provided to police |
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Trial Rights: Brady Rule
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- prosecutor must disclose all material exculpatory evidence to D
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Trial Rights: Unbiased judge
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- no financial statke or actual malice towards D
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Trial Rights: Right to Jury Trial
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- where maximum authorized sentence exceeds 6mos
- fewest number of juors allowed: 6 (fed law, must be unanimous, NY 5/6) |
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Trial Rights: Right to Effective Assistance of Counsel
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- must est. counsel performance was deficient and but for deficiency, outcome wouldve been different
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Trial Rights: Grand Jury
NEW YORK ONLY |
may indct when the evidence:
- est. all elements of crime - is legally sufficient to est. that accused commited crime - est. reas cause to believe accused committed crime |
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4 Requirements of Plea Taking Colloquy Judge Must Address to D
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- nature of charge
- maximum authorized sentence and any mandatory minimum - D right to plead not guilty and proceed to trial - by pleading guilty D is waiving trial and moving directly to sentencing |
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D may withdraw guilty plea after sentencing if:
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- problem with colloquy
- jurisdictional defect - D prevails on an ineffective assistance of counsel claim - prosecutor fails to perform his part of bargain |
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Guilty Pleas & Plea Bargaining: Insanity and Alibi Requirements
NEW YORK ONLY |
- D must notify prosecution w/n 30 days of not guilty plea if raising insanity as defense
- prosecutor may serve D w/demand for an alibi w/n 20 days after arraignment |
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Punishment: 8th Amendment
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- prohibits criminal penalties grossly disproportionate to offense
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Punishment: 8th Amendment: Protected Groups
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mentally retarded
presently insane D under age of 18 at time of offense |
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Double Jeopardy: Attachment
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- jury trial: when jury is sworn
- bench trial: when 1st witness is sworn - guilty plea: when court accepts plea w/o condition |
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Double Jeopardy: Same Offense Requirement
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- 2 offenses not considered the same offense if each has an element the other does not
- if only one offense has an elment not contained in the other, the one with the missing element is a lesser included offense |
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Double Jeopardy: Same Offense Requirement
NEW YORK ONLY transaction test |
D can be charged w/all offenses arising from any single transaction unless:
- the offenses have substantially different elemetns or - each offense contains a single element not in the other and they vindicate different harms or - one is for criminal possession and the other is for use or - each invovled harm to different victim |
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Double Jeopardy: Same Sovereign Requirement
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- DJ bars retrial for the same offense by the same sovereign
state & federal governmetn: not same different states: not the same state and munis: same |
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Double Jeopardy: When Retrial is Permitted
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- hung jury
- mistrial for manifest necessity - successful appeal - breach of plea bargain by D |
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Fifth Amendment Privilege Against Compelled Testimony: Application
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- testimonial privilege protection from compelled testimony does not apply to use of our body or bodily fluids (ie urine, blood)
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Fifth Amendment Privilege Against Compelled Testimony: 3 Ways to Eliminate Privilege
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- prosecutorial grant of 'use and derivative use' immunity
- D takes stand - Statute of Limitations has run |
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Fifth Amendment Privilege Against Compelled Testimony
NEW YORK ONLY |
- cannot be asserted in grand jury proceeding
- trsxn immunity shields witnesses from prosecution for any trsxn they testify to during immunized testimony |
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Grounds for Mistrial: Juror Visit to Scene of Crime
NEW YORK ONLY |
- jurors may not visit the scene of ac rime of their own accord during trial or deliberations
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