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154 Cards in this Set
- Front
- Back
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Criminal Jurisdiction (rule)
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A state acquires jurisdiction over a crime if either the conduct or the result happens in the state
If you shoot someone from one state into another – you’re liable for both |
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Merger
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Generally there is no merger of crimes in American law.
Solicitation and attempt do merge into the substantive offense Conspiracy DOES NOT merge – you can be convicted of conspiring to do something and do it |
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Essential Elements of a Crime
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Act (or omission as an act)
Mental State |
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Act
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Can be bodily movement but the act must be voluntary
Ex. Of non-voluntary acts 1. Conduct which is not the product of your own volition 2. Reflexive of convulsive acts 3. An act performed while you’re unconscious or asleep |
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Ommission as an Act
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Generally the is no legal duty to act, but sometimes there is a duty to act. A legal duty to act can arise in one of five circumstances
1. By statute – e.g. requirement to file your tax returns 2. By contract – e.g. lifeguard or nurse has a legal duty to act 3. Because of the relationship between the parties – e.g. a parent’s duty to protect their children or spouse’s duty to protect other spouse 4. Because you voluntarily assume a duty of care and fail to adequately perform it 5. Where your conduct created the peril |
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Mental State
Four Common Law Mental States 1. |
Specific Intent Crimes
2. Malice Crimes 3. General Intent 4. Strict liability – the no intent crimes |
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Specific Itnent Crimes (defined)
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The importance of specific intent crimes is that they will qualify for additional defenses not available for other types of crime
Defenses are 1. Voluntary intoxication 2. Unreasonable mistake of fact NOTE: If you see the word murder without a degree that is second degree murder. IT does not require specific intent. |
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The Specific Intent Crimes
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Students Can Always Fake A Laugh, Even for Ridiculous Bar Facts
Solicitation Conspiracy Attempt First degree murder Assault Larceny Embezzlement False Pretenses Robbery Burglary Forgery |
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Malice Crimes
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On the bar there are only two malice crimes
1. Common law murder 2. Arson Malice: A reckless disregard that because of the high risk – harmful act would occur |
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General intent
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The big catch-all category. All crimes not so far mentioned are general intent crimes unless they qualify for strict liability – most common: rape and battery
The bar recognizes transferred intent You can be charged for an attempt and murder if you attempt to kill someone and actually kill another |
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Strict Liability – The No Intent Crimes
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The importance of strict liability on the bar exam is that any defense that negates intention cannot be a defense to the no intent crimes of strict liability
1. Strict liability crimes are the no intent crimes 2. NOE: If a crime is in the administrative, regulatory or morality area, you don’t see any adverbs in the statute such as knowingly, willfullty or intentionally, then the statute is meant to be a no intent crime of strict liability (most often comes up under morality) |
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Mental States and Model Penal Code
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Purposely
Knowingly Recklessly Negligently |
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Purposefly
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One acts purposely when it is his conscious objective to engage in certain conduct or cause a certain result
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Knowingly
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One acts knowingly when he is aware that this conduct will very likely cause the result
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Recklessly
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One acts recklessly when he consciously disregards a substantial and unjustifiable risk
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Negligently
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One acts negligently when fails to be aware of a substantial unjustifiable risk
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Accomplice Liability
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An accomplice is one who aids, advises, or encourages the principal in the commission of the crime charged
Accomplices must also have requisite intent of crime be committed Accomplices are liable for the crime itself and all other foreseeable crimes |
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Accomplices and Withdrawal
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1. If the person encouraged the crime, the person must repudiate the encouragement
2. If the person aided by providing assistance to the principal (such as giving materials) he must do everything possible to neutralize this assistance (such as attempting to retrieve the materials 3. An alternate means of withdrawing is to contact the police |
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Inchoate Offenses
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Inchoate means incomplete. There are three
1. Solicitation 2. Conspiracy 3. Attempt |
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Solicitation
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Asking someone to commit a crime. The crime of solicitation ENDS when you ask them.
Under the common law – it is not necessary that the person solicited agree If the person does agree – then it becomes a conspiracy and the solicitation merges – the only crime left when the other person agrees to do it is conspiracy. NOTE: Factual impossibility is no defense |
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Conspiracy (rule)
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Conspiracy is an agreement, with an intent to agree, and an intent to pursue an unlawful objective
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Notes on Common law Conspiracy
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Does NOT merge with substantive offense. On bar exam you can be convicted of conspiring to do something and doing it.
Each conspirator is liable for all crimes of co-conspirators if those crimes were committed in furtherance of the conspiracy were foreseeable |
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Agreement required for conspiracies
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The agreement need not be expressed
Intent can be inferred from conduct – watch out for 1. Bilateral approach 2. Unilateral Approach |
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Bilateral Approach
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The traditional (common law) rule required two guilty parties. Thus, under this approach, if one person (in a two-party conspiracy) is merely feigning agreement, the other person cannot be guilty of conspiracy. Furthermore, the acquittal of all persons with whom the defendant is alleged to have conspired precludes conviction of remaining D under this approach
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Unilateral Approach (Modern Trend and MPC approach)
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Requires only that only one person have a genuine criminal intent
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Overt Act Requirement
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The majority rule is that in order to ground liability for the conspiracy there must be an agreement plus some overt act in furtherance of the conspiracy. The minority rule and the common law rule grounded liability for conspiracy with the agreement itself
If you need an overt act - any little act wil do if it is an overt act in furtherance of the conspiracy – even if it is of mere preparation |
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Factual Impossibility and Conspiracy
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No defense
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Conspiracy and Withrawal
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Even if it’s adequate, can never relieve the D from liability for the conspiracy itself. D can withdraw from liability for the other conspirator’s subsequent crimes, but he can’t withdraw from his conspiracy
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Attempt
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Rule – you need
1. Specific intent plus 2. An overt act in furtherance of the crime (most jxn’s – SUBSTANTIAL STEP, not mere preparation) |
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Defense of Abandonment (attempt)
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Majority rule is that, once D has taken a substantial step toward committing the crime, abandonment is never a defense.
Contrarily, MPC allows for this defense only if it is fully voluntary and a complete renunciation of criminal purpose |
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Attempt and Impossibility
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1. Legal impossibility is a defense to attempt (meaning whatever the person was trying to do was not illegal) but
2. Factual impossibility was not a defense |
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Defenses for Crimes Based on Criminal Capacity
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Insanity
Intoxication (Involuntary or Voluntary) Infancy |
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Four Insanity Tests
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M’Naghten
Irresistible Impulse Durham Rule Model Penal Code |
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M’Naghten Rule
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At the time of this conduct, D lacked the ability to know the wrongfulness of his actions or understand the nature and qualify of his actions
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Irrestible Impulse
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D lacked the capacity for self control and free choice
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Durham Rule
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D’s conduct was product of mental illness
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MPC Insanity
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D lacked the ability to conform his conduct to the requirement of the law
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Voluntary Intoxication
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Self induced intoxication
1. Voluntary intoxication is a defense on the bar exam only to specific intent crimes (and no other type) 2. For purposes of bar exam – addicts and alcoholics are always VOLUNTARILY INTOXICATED (can’t claim involuntary intoxication by virtue or status of their diseas) |
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Involuntary Intoxication
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Could be
1. Unknowingly intoxicated 2. Becoming intoxicated under duress Examples 1. You have something slipped in your drink (and didn’t know what it was or what its effects are) or 2. You are forced under duress to drink 3. NOTE: Involuntary intoxication is a form of insanity and thus it is a defense to all crimes |
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Infancy
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1. Under age 7 – no criminal liability
2. Under age 14 – rebuttable presumption of no criminal liability |
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Principles of Exculpation and Other Defenses
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Self Defense
Defense of Dwelling Duress Necessity Mistake of Fact Consent Entrapment |
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Self-Defense (Non-deadly force)
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A victim may use non-deadly self-defense any time the victim reasonably believes that force is about to be used on him
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Self-Defense (Deadly Force)
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Majority Rule: Victim may use deadly force in self-defense anytime the victim reasonably believed that deadly force is about to be used on him
Minority Rule: A victim is required to retreat if it is safe to do so, but only if the examiners tell you that you are in one of these so called “retreat” jxns there are three exceptions to the duty to retreat 1. No duty to retreat from your home 2. No duty to retreat if you are victim of rape or robbery |
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and
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Police officers have no duty to retreat
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Original Aggressor and Self Defense
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To get back the defense of self defense – original aggressor must
1. Withdraw and 2. Communicate that withdrawal Note: If the victim of the initial aggression suddenly escalates a minor fight into one involving deadly force and does so without giving the aggressor the original aggressor may use force in his own defense (including deadly force if reasonable) |
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Defense of Others
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Rule: a D can raise a defense of others defense if he reasonably believes that the person assisted would have the right o use force in his own defense
Majority rule: There need not be a special relationship between the D and the person in whose defense he acted |
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Defense of a Dwelling
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Rule: Deadly force may never be used solely to defend your property
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Duress
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Rule: Durres is a defense to criminal act if
1. The person acts under the threat of imminent infliction of death or great bodily harm and 2. That belief is reasonable Threats to hard a third person may also suffice to establish defense of duress It is a defense to all crimes except homicide |
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Necessity
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Rule: Conduct that would otherwise be criminal is justifiable if, as a result of pressure from natural forces, the D reasonably believes that his conduct was necessary to avoid greater societal harm
NOTE: The necessary defense differs form duress because duress involves human threat, and necessity involves pressure from natural forces |
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Mistake of fact
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Rule: Mistake of fact is a defense only when mistake negates intention
But the mistake has to be reasonable to be a defense to a malice or general intent crime BUT – on the bar exam – any mistake no matter how ridiculous is a defense if the defendant is charged with a specific intent crime Mistake of fact is NEVER a defense to strict liability crimes |
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How will we know if a mistake is reasonable or unreasonable?
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Question will make it obvious or tell you
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What’s the difference between mistake of fact and factually impossibility?
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When dealing with mistake of fact – D never has the intent
When dealing with a factual impossibility – D has the intent to commit the crime but it is impossible to do so because of factual circumstances |
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Consent
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Consent is generally no defense
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Entrapment
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Entramplemt is a valid defense only if
1. The criminal design originated with law enforcement officers and 2. The defendant must not have been pre-disposed to commit the crime Usually an undercover officer on the exam, but it generally doesn’t qualify for entrapment |
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Battery
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Rule: Unlawful application of force to the person resulting in either
1. Bodily injury or 2. Offensive touching Battery need not be intentional Force need not to be applied directly This is a general intent crime |
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Assault
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An attempt to commit a battery or
The intentional creation – other than by mere words – of a reasonable apprehension of imminent bodily harm The assault/batter distinction – if there has been an actual touching, the crime is battery |
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Aggravated Assault
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An assault plus
1. The use of a deadly weapon or dangerous weapon OR 2. With the intent to rape, maim, or murder |
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Homicide (generally)
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Murder is the unlawful killing of another human being with malice aforethought. Such a state of mind exists if there is
1. intent to kill, or 2. Intent to inflict great bodily harm, or 3. Intent to commit a felony, or 4. Reckless indifference to unjustifiably high risk to human life |
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Murder (Cause-in-Fact)
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D’s conduct must be cause-in-fact of the victim’s death. In other words, the death would not have occurred but for the D’s conduct
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Murder (Proximate Cause)
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The general rule is that D is responsible for all results that occur as a natural and probable consequence of his conduct, even if he did not anticipate the exact manner in which they would occur
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First Degree Murder
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1. Premeditated killing
2. Felony-Murder 3. Homicides of a police officer |
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First Degree Murder (Premeditated Killing)
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1. Victim must be human and victim must be dead
2. D must have acted with intent or knowledge that his conduct would cause death |
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First Degree Murder (Felony-Murder)
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Any killing, even an accidental killing, committed during the course of a felony
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Defenses to Felony-Murder
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If D has a defense to the underlying felony, he has a defense to the felony murder
2. The felony they are committing must be a felony other than the killing 3. The deaths must be foreseeable (felony with guns – always foreseeable, heart attacks not foreseeable) 4. Death’s Caused while fleeing from felony are felony murders BUT once D reaches point of temporary safety, deaths are NOT felony murders 5. On MBE – D is NOT liable for death of a co-felon as a result of resistance by the victim or the police |
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First-Degree Murder (Homicide of a Police Officer)
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D must know that the victim is a law enforcement officer and
Victim must be acting in the line of duty |
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Second Degree Murder
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In many states – classified as
Depraved-heart killing – that is, killing done with reckless indifference to human life or Murders that are not classified as first degree murders (e.g. premeditated killings or first degree felony murders – catch-all) |
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Manslaughter (3 Ways)
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Voluntary Manslaughter
Imperfect Self Defense Involuntary Manslaughter |
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Voluntary Manslaughter
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Killing in the heat of passion resulting froma n adequate provocation of the victim
Provocation must be one that would arouse sudden and intense passion in the mind of an ordinary person such to cause him to lose self control There must not have been sufficient time between the provocation and the killing for the passions of reasonable person to cool and The D did not cool off between the provocation and the killing |
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Imperfect Self-Defense
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If D has an honest but unreasonable belief that his life was in imminent danger, this defense will reduce a murder to manslaughter
NOTE: Only some states recognize this |
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Involuntary manslaughter
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A killing of criminal negligence or
Misdemeanor Manslaughter – Killing someone while committing a misdemeanor or unremunerated felony |
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False Imprisonment
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Rule: Unlawful confinement of a person without his valid consent
Note: If a known alternate route is available, the confinement element will not be met for purposes of false imprisonment Note: One’s consent to the confinement precludes it from constituting false imprisonment |
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Kidnapping
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Rule: Confinement of a person with either
1. Some movement (asportation) OR 2. Concealment in a secret place |
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Rape
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The slightest penetration completes the crime
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Statutory Rape
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Strict liability crime: consent to the victim is no defense and mistake of fact is no defense
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Larceny
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Rule: Common law larceny requires a wrongful taking (asporation) of property of another by trespass with intent to permanently deprive
Notes 1. Slightest movement is enough 2. Intent to deprive MUST exist at time of taking or it is not common law larceny, but if you take it not with the intent to steal but eventually keep it – that’s larceny under continuing trespass 3. Taking property you believe is yours (or that you have some right to) is NOT common law larceny |
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Embezzlement
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Rule: The fraudulent conversion of property of another
MBE Notes 1. The embezzler always has lawful possession followed by an illegal conversion 2. A trustee is often the MBE embezzler 3. You don’t have to carry way to be an embezzler – just the lawful possession 4. The embezzler doesn’t have to get the benefit (you can embezzle to charity) |
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False Pretenses
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Rule: D persuades the owner of property to convey title by false pretense (false representation)
MBE Notes 1. The conveyance of title is at the center of false pretenses 2. This false representation could be as to a present or past fact 3. A false promise to do something in the future cannot ground liability for false pretenses |
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Larceny by Trick
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1. If only possession of the property is obtained, the offense is larceny by trick. If title is obtained then the offense is false pretenses
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Robbery
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Rule: The taking of personal property of another from the other person’s presence by force or threat with the intent to permanently deprive him of it
Notes for the MBE 1. The presence requirement is very broadly drawn and would even cover a farmer tied up in his barn and taking things from his house 2. As for taking either by force or threat, things such as ripping a necklace from a person’s neck is sufficient 3. Threat must be a threat of imminent harm |
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Extortion
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Rule: Knowingly seeking to obtain property or services by means of future threat
Difference between extortion and robbery 1. You don’t have to take anything from the person or his presence to be extortion 2. Threats are of future – not imminent harm |
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Forgery
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Rule: The making or altering of a false writing with intent to defraud.
Note: any writing that has apparent legal significant is subject to crime of forgery |
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Burglary
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Rule: Breaking and entering of a dwelling of another at night with the intent to commit a felony therein
MBE Notes 1. Breaking – can be actual (not if you come in through a wide open window but if you open a door within a house breaking exists) or constructive (breaking by fraud or threat) 2. Entering – occurs when any part of the body crosses into the house 3. Dwelling – house of another – cannot be a commercial structure 4. At night – common law held it had to be at night 5. With the intent to commit a felony therein - must exist at time of breaking – can even break and enter to murder or rape, don’t have to steal |
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Arson
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Rule: Malicious burning of the dwelling of another
As for “malice” – no specific intent required 1. Acting with reckless disregard of an obvious risk that the structure would burn will suffice for arson culpability |
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Arson (MBE Notes)
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1. Only applies to burning – not to smoke damage. Scorching insufficient but charring is sufficient
2. At common law – the building burned had to be a dwelling – it could not be a barn or building 3. But note questions on multistate exam that are testing on the other arson issues will often assume without saying that jxnn’s arson law applies to structures other than dwellings 4. At common law – the burning had to be a house of another – one could not be guilty of one’s own house at common law 5. That’s different today – there was no such thing as homeowner’s insurance 6. Judgment call as to how close the fire is started to the dwelling |
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CrimPro – Key Amendments
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Fourth Amendment – Prohibition against unreasonable searches and seizures
Fifth Amendment 1. Privilege against compulsory self-incrimination 2. Prohibition against double jeopardy Sixth Amendment 1. Right to speedy trial 2. Right to trial by jury 3. Right to confront witnesses 4. Right to assistance of counsel Eighth Amendment – Prohibition against cruel and unusual punishment 1. The Death Penalty 2. Prisoner Rights |
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Exclusionary rule
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A remedy of American constitutional procedure whereby someone who has been the victim of an illegal search or a coerced confession can (among their other remedies) have the product of that illegal search or that coerced statement excluded from any subsequent criminal prosecution
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Limitations on exclusion
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1. Does not apply to grand jury proceedings – grand jury witness may be compelled to testify based on illegally seized evidence
2. Does not apply in civil proceedings 3. Exclusion is not an available remedy in parole revocation proceedings 4. Exclusion does not apply to the use of excluded evidence for impeachment purposes (even includes Miranda violation) but only the D’s trial testimony may be impeached, not the testimony of other defense witnesses 5. Exclusion is not an available remedy for the violations of the knock and announce rule in the execution of search warrants |
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The Fruit of the Poisonous Tree Doctrine (generally)
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1. Will exclude illegally seized evidence, but will also exclude all evidence obtained and derived from police illegality
2. NOTE: Fruit of poisonous tree doctrine does not apply to Miranda violations…unless the police act in bad faith in obtaining such information |
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Fruit of the Poisonous Tree Doctrine (three ways government can break the chain between original, unlawful police action and some supposedly derived piece of evidence)
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3 I’s of breaking the chain
1. Government could show that it had an independent source for that evidence, independent of original police illegality 2. Inevitable discovery – police would have inevitably discovered evidence anyway 3. Intervening acts of free will on part of D |
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Exclusionary Rule and Convictions
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A conviction will not necessarily be overturned because improperly obtained evidence was admitted at trial
On appeal – court will apply harmless error test Under the test, a conviction will be upheld if the conviction would have resulted despite the improper evidence |
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Fourth Amendment Protects from…
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Fourth Amendment protects citizens from unreasonable searches and seizures
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Arrests and Definitions
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Arrest must be based on probable cause
Arrest warrants are generally not required before arresting someone in a public place – even if PO had time to get a warrant However, a non-emergency arrest of an individual in his home does not require an arrest warrant |
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Station hose detention
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The police need probable cause to arrest you and compel you to come to the police station either for fingerprinting or interrogation
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Investigatory Detentions (Terry Stops)
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Police have the authority to briefly detain a person even if they lack probable cause to arrest. In order to make such a stop the police must have a reasonable suspicion supported by articulable facts of criminal activity (hunch is not enough)
Whether the police have reasonable suspicion depends on the totality of the circumstances |
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Automobile Stops (Terry Stops)
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Police may stop a car if they have at least reasonable suspicion that the law has been violated
1. Exception: Checkpoint roadblocks 2. Neutrally adopted things such as DUI checkpoints or border crossings have been deemed okay |
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Traffic Stops and Police Dogs (Terry Stops)
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During routine traffic stops a sniff is not a search so long as the police do not extend beyond the time needed to issue a ticket or conduct normal inquiries
SCOTUS held that during such a traffic stop, a dog “alert” to the presence of drugs can be the basis for probable cause for such a search BUT NOTE – cops can’t just have a dog sniffing outside the home of a suspected drug dealer |
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Search and Seizure – The Steps
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Step One: Governmental Conduct
Step Two: Reasonable Grounds of Privacy (Standing) Step Three: Did the Police Have Valid Search Warrant? Step Four: If warrant not valid, does officer have good faith defense to save defective search warrant? Step Five: If a warrant is invalid and cannot be saved by the good faith defense or if the police never had any warrant at all – you can look to exceptions |
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Governmental Conduct (Step One)
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1. The publicly paid police – on or off duty
2. Any private individual acting at the direction of the police that is deputized with the power to arrest you E.g. Privately paid police are Store Security Guards Subdivision police Campus Police |
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Automatic Standing (Step Two)
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1. If you own the premises searched you always have standing to object to the search of the place you own
2. You live on the premises searched whether you have ownership interest or not. Ex. Grandchild living at parent’s home 3. Overnight guests have standing to object to the legality of the search of the place they are staying |
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Sometimes Standing
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If you own the property seized you have standing only if you have reasonable expectation of privacy in the item or the area searched
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The No Standing Categories
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You have no expectation of privacy and therefore no standing for anything that you hold out to the public every day. E.g.
1. Sound of your voice 2. Style of your handwriting 3. Paint on the outside of your car 4. Account records held by a bank 5. Monitoring the location of your car on a public street in your driveway (GPS – is invasion) 6. Anything that can be seen across the open fields 7. Anything that can be seen from flying over the public air space 8. Odors emanating from your luggage or car 9. Your garbage set out on the curb for collection – MUST be set out on the curb |
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Did the police have a valid search warrant? (Step Three)
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Two core requirements for a facially valid search warrant, probable cause and particularity
Probable Cause: fair probability that contraband or evidence of a crime will be found in the area searched Particularity: The warrant must state with particularity the place to be searched and the things to be seized |
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Warrants and the use of informants
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If an officer’s affidavit of probable cause is based on informant information, its sufficiency is determined by the totality of the circumstances
1. An informant’s credibility, and the basis of knowledge, are all relevant factors in making this determination 2. A valid warrant can be based in part on an informant’s tip even though that informant is anonymous |
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Knock and Announce
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No knock entry permitted in the execution of a search warrant if exigent circumstances exist
An officer need not knock and announce if knocking and announcing would be dangerous, futile, or inhibit the investigation Biggest fear of inhibiting the investigation – DESTRUCTION OF EVIDENCE |
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If the warrant is not valid, does an officer have a good faith defense to save the defective search warrant? (Step Four)
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General rule is that an officer’s good faith reliance on a search warrant overcomes the defects with the probable cause or particularity requirements
Four Exceptions (on another card) |
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Four Exceptions
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1. Affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied on it
2. Affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it 3. The police officer or prosecutor lied to or misled the magistrate when seeking the warrant 4. If the magistrate is biased and therefore has wholly abandoned his or her neutrality |
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Warrant Exceptions
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Search Incident to Arrest
Automobile Exception Plain View Consent Stop and Frisk Evanescent Evidence, Hot Pursuit and Special Needs Searches Wiretapping and Eavesdropping |
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Search Incident to Arrest (Generally)
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Warrant exception.
Arrest must be lawful. If the arrest is unlawful then the search is unlawful The arrest and search must be contemporaneous in time and place What can be searched? The person’s and the areas within the person’s wingspan |
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Search Incident to Arrest (Automobiles)
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Police may search the interior to the automobile incident to arrest only if
1. The arrestee is unsecured and still may gain access to the interior of the vehicle OR 2. The police reasonably believe that the evidence of the offense for which the person was arrested may be found in the vehicle Community Caretaker Exception: Also justifies a warrantless search if officer faces an emergency that threatens health or safety of an individual to the public |
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Automobile Exception
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In order for police to search anything or anybody and fall under automobile exception they must have probable cause
NOTE: If, but only if, before search anything or anybody the police have probable cause they can search the entire car 1. Includes the entire interior compartment and the trunk 2. Moreover, if there is probable cause, police may open any package, luggage, or other container which would reasonably contain the item they had probable cause to look for whether that package, luggage or container is owned by driver 3. Probable cause necessary to justify warrantless search of an auto under the automobile can arise after the car is stopped BUT the probable cause must arise before anything or anybody is searched |
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Plain View
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Warrant Exception
To constute a valid plain view seizure the police officer must be legitimately present at the location where he or she does the viewing of the item seized Must be immediately apparent that the term is contraband or fruit of a crime |
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Consent
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For consent to be valid must be voluntary and intelligent
Third Party consent – where two or more people have equal right to use people or property, either can consent to its warrantless search. However if both people are present and one person consents to the search and the other does not consent then the one who does not consent controls |
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Stop and Frisk (Warrant Exception)
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A terry stop is a brief detention for the purpose of investigating suspicious conduct
Legal standard for stopping: reasonable suspicion Reasonable suspicion standard is less than the probable cause standard Terry “frisk” is a pat down of the outer clothing and body to check for weapons NOTE: if probable cause arises during an investigatory stop, detention an become an arrest and officer could ten conduct a full search incident to arrest Auto stops – if vehicle is properly stopped for traffic violation and officer reasonably believes that a driver or passenger may be armed and dangerous – officer may 1. Conduct a frisk of suspected person 2. Search the vehicle so long as its limited to the areas in which the weapon may be placed |
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Evanescent Evidence
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Evidence that might disappear quickly if the police took the time to get a warrant
Ex. Police officer can scrape under the suspect’s fingernails without getting a warrant because if you took the time to get the warrant the D might go wash his hands Police – don’t have to get a blood sample on DUI arrest but you should if practical |
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Hot Pursuit of Fleeing Felon
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Rule of thumb: If police are not within 15 minutes behind fleeing felon, it is not a valid hot pursuit exception
NOTE: If police are truly in hot pursuit they can enter anyone’s home without a warrant and any admissible evidence they see in plain view will be admissible |
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Inventory Searches
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Before incarceration of an arrestee the police may search
1. An arrestee’s personal belongings and/or 2. The arrestee’s entire vehicle (includes closed containers) |
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Public School Searches
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Public school children engaged in extra-curricular activities can be randomly drug tested (school dances too)
Warrantless searches of public school children’s effects, like purses and or backpacks, is permissible to investigate violations of school rules |
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School search will be reasonable only if
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1. It offers moderate chance of finding evidence of wrongdoing and
2. The measures adopted to carry out the search are reasonably related to the objectives of the search and 3. The search is not excessively intrusive |
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Wiretapping and Eavesdropping
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All wiretapping and eavesdropping requires a warrant.
Exceptions – unreliable ear and uninvited ear 1. everyone assumes that person who they are speaking to will either consent to government monitoring or will be wired and thus no fourth amendment right there 2. Speaker has no fourth amendment right if she makes no attempt to keep convo private |
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Miranda Warnings
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When required, suspect must be given the following information
1. You have the right to remain silent 2. Anything you say or do can be used against you in court 3. You have the right to an attorney and 4. If you cannot afford an attorney one will be appointed to you if you so desire Warnings need not be ver batim |
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Triggers for Miranda Warnings
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Custody
Interrogation |
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Triggers for Miranda Warnings (Custody)
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1. Legal standard for custody you are in custody if at any time of the interrogation you are not free to leave – covers being in a police car or being in jail, but you could also be at home or in a hospital bed
2. 1984 – SCOTUS said that probation interviews and routine traffic stops are not custodial |
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Triggers for Miranda Warnings (Interrogation)
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1. Defined as any conduct where police knew or should have known that they might elicit an incriminating response form the suspect
2. Not required prior to admissibility of what’s known as a spontaneous statement (“blurted out”) |
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Miranda Waiver
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1. Must be knowing, voluntary, and intelligent
2. Courts will employ a totality of the circumstances test in making this determination |
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Invoking the Right to Remain Silent
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Must be unambiguous
The police may reinitiate questioning after the D has invoked the right to silence if they wait a significant amount of time, D is re-mirandized and the questions are limited to a crime that was not the subject of the earlier questioning |
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Invoking the right to counsel
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Can be invoked only by unambiguous request
If the accused invokes his right to counsel all questions must cease until 1. Accused is given an atty or 2. Accused initiates further questions However – if there is a break in custody (e.g. being released back into general population) P can come back and ask D to waive his Miranda rights after 14 days |
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Fifth Amendment Right to Counsel v. Sixth Amendment Right to Counsel
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1. Court-created 5th amendment right to counsel when a suspect invokes his Miranda rights and requests an atty
2. 5th amendment right to counsel is NOT offense specific and thus applies to the entire process of custodial police interrogation 3. Conversely the 6th amendment right to counsel is offense specific meaning counsel would only need to be present if D were being asked questions about specific case for which D has retained counsel 4. But note in 2009 SCOTUS held that when a D has not specifically requested counsel and has merely been given appointed counsel (e.g. preliminary hearing) police can come back to D to waive his right to counsel and talk about the crime for which he was charged |
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Prior Identification
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Two Substantive bases on which you can attack pretrial identification
1. Denial of the right to counsel 2. Denial of due process |
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Prior Identification (denial of the right to counsel)
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1. Post-charge line-ups (standing in a line) and show-ups (one-on-one) give rise to right to counsel
2. But note: there is no right to counsel when the police go out to show the victim or witness photographs 3. Other stages where there is no right to counsel Taking of blood samples Taking of hair samples Pre-charge lineups Brief Recess during D’s testimony at trial Parole and probation revocation Taking of fingerprints |
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Prior Identification (denial of the right to counsel)
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Denial of Due Process Certain pretrial identification techniques are so unnecessarily suggesting and so substantially likely to produce a misidentification that they deny due process of law
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Remedy for Unconstitutional Pre-Trial Identification
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Exclude the in-court ID unless the state can show that it had an adequate independent source for that in-court ID (Independent of the bad line-up)
Most common independent source: Victim or witness had an adequate opportunity to observe the D at the time of the crime |
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Bail
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Bail issues are immediately appealable
Preventative detention is constitutional |
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Grand Juries
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Exclusion does not apply to the conduct of grand juries. Accordingly a grand jury witness may be compelled to testify based on illegal seized evidence
Proceedings of grand juries are secret – D has no right to appear and no right to send in witnesses.Prosecutorial duty to disclose exculpatory info A prosecutor’s failure to disclose evidence, whether willful or inadvertent, violates DPC and may be grounds for reversal of conviction Will constitute grounds for reversal if 1. Evidence is favorable to the D and 2. Prejudice has resulted meaning there is a reasonable probability that the result would have been different had the info not been disclosed |
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Right to an Unbiased judge
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Trial Right. Bias means having a financial income in the outcome of the case or some actual malice against D
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Right to a jury trial
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Attaches any time the D is tried for an offense which the maximum authorized sentence exceeds six months. If the max authorized sentence is up to or including six months, no constitutional right
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Number and Unanimity of Jurors (Right to Jury Trial)
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Minimum Permissible number is 6. If your uses minimum, must be unanimous
SCOTUS approved 10-2 and 9-3 |
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The Cross Sectional Requirement
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You have the right to the jury pool to reflect a fair cross section of community BUT you have no right to have the empaneled jury reflect a fair cross section of the community
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Peremptory Challenges
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Challenge to exclude a prospective juror for any reason whatsoever
BUT: It is unconstitutional for the prosecutor or the defense to exercise peremptory challenges to exclude from the jury prospective jurors on account of race or gender |
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Right to Counsel
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A criminal D right to counsel applies at all CRITICAL stages of the prosecution, including trial
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Ineffective assistance of counsel
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Rule: There must be deficient performance by counsel, and, but for such deficiency, result of proceeding would have been different
Typically – such a claim can only be made out specifying particular errors of trial counsel – vague allegations of experience not enough |
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Right to Self-Representation
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A D has a right to defend himself so long as his waiver of trial counsel is knowing and intelligent and he is competent to proceed pro se
NOTE: A D can be found mentally competent to stand trial, yet incompetent to represent himself as determined by the trial judge’s discretion |
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Right to Confront Witnesses
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The Absence of face-to-face confrontation between the D and the accuser does not violate the Sixth Amendment when preventing such confrontation serves an important public purpose and the reliability of the witness testimony is otherwise assured – most common example is insulating a child from testifying face to face in a sex abused case
D who is disruptive may be removed form the courtroom, thereby relinquishing right of confrontation |
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Guilty Pleas and Plea Bargaining (General Rule)
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A court will not disturb guilty pleas after sentencing
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Guilty Pleas and Plea Bargaining (What must a Judge Do)
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If a D pleads guilty, judge must specifically address the D on the record about
1. The nature of the charge 2. The maximum authorized penalty and any mandatory minimum and 3. The judge must tell him that he has a right to plead not guilty and to demand a trial and 4. All of this must be on the record |
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Four good bases of withdrawing a guilty plea after sentence
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1. The plea was involuntary (some mistake in plea taking ceremony) NOTE: a plea is not involuntary merely because it was entered in response to the prosecution’s threat to charge a D with a more serious crime
2. Lack of jxn 3. Ineffective assistance of counsel 4. Failure of prosecutor to keep an agreed-upon plea bargaining |
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Death Penalty
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1. Any death penalty statute that does not give the D a chance to present mitigating facts and circumstances is unconstitutional
2. There can be no automatic category for imposition of the death penalty 3. The state may not by statute limit the mitigating factors, all relevant mitigating evidence must be admissible or the death penalty statute is unconstitutional 4. Only a jury – not a judge – may determine the aggravating factor justifying imposition of the death penalty |
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Double Jeopardy (Defined)
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Jeopardy attaches in a jury trial when the jury is sworn and in a bench trial when the first witness is sworn
Jeopardy does not generally attach when the proceedings are civil |
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Exceptions to Double Jeopardy Permitting Retrial
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Jury is unable to agree upon verdict
Mistrials for manifest necessity Successful appeal (but note – D can’t be retried for a more serious offense than he was convicted at the first trial) Breach of agreed-upon plea bargaining by the D – when the D breaches a plea bargain agreement his plea and sentence can be withdrawn and the original charges reinstated |
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Blockburger
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Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other does not
Lesser included offenses: being put in jeopardy for a greater offense bars retrial for any lesser included offense Exception: if D is convicted on charge of battery and victim later dies – D can be prosecuted for murder |
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Separate Sovereigns (double jeopardy)
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Bars retrial for safe offense by same sovereign
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Who can Assert Fifth Amendment Priv against Self-Incrimination?
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Anyone in any type of case. Anyone asked a question under oath in any kind of case, wherein the response might tend to incriminate him, is entitled to 5th amendment priv
1. You must assert that priv the first time the question is asked or you will have waived your first amendment rights for all subsequent crim prosecutions 2. Privilege must be claimed in civil proceedings to prevent priv from being waived in later crim prosecution 3. If individual responds to the questions instead of claiming the priv during a civil proceeding he cannot later bar that evidence on 5th amendment grounds |
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Scope of the Protection (5th Amendment Right Against Self-Incrimination)
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Does not protect citizens form compelled testimony
Does not protect citizens from having the gov’t use physical evidence in ways to incriminate them Evidence of non-testimonial evidence that the prosecution can compel a person to produce 1. Blood sample 2. Handwriting sample 3. Voice Sample 4. Hair sample. |
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Fifth Amendment and Prosecutorial Conduct
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1. unconstitutional for prosecution to make negative comment on the D’s failure to testify or on D choosing to remain silent after being given the Miranda warnings
2. Exception: Prosecutor can comment on D’s failure to take the stand when the comment is in response to D counsel’s assertion that D was not allowed to explain his side of the story 3. When a prosecutor impermissibly comments on a D’s silence, harmless error test applies, thus prosecutor’s conduct may not be fatal to an otherwise sound conviction |
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Fourth Amendment Privilege Can be Eliminated in Three Ways
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1. Grant of immunity
2. No possibility of incrimination (ex. If SOL has run) 3. Criminal who takes stand waives 5th amendment privilege as well as legitimate subjects of cross exam |
