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176 Cards in this Set
- Front
- Back
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Elements for crime
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- mens rea
- actus reus - causation [note concurrent principle for larceny/burglary] |
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Form of actions (actus reus)
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Commission
Omission |
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Commission for actus reus requires
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Only the volitional act of D. Not sufficient:
- Pushed/grabbed - Reflex/convulsion - Sleepwalking |
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Ommission for actus reus requires
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- Duty to act
- Ability to act - Knowledge of the duty |
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Duty to act for criminal purposes arises out of
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- Law
- Contract - Status relationship - Voluntary assumption of care that prevented help from others - D created the dangerous situation in the first place |
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Common law mens rea (4)
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Malice
Specific intent General intent Strict liability |
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Common law specific intent crimes
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- Assault; D1-Murder
- Larceny, embezzlement, false-pretense, forgery, ROBBERY - Burglary - Solicitation, attempt, conspiracy |
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Common law malice crimes
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Murder
Arson |
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Common law general intent crimes
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battery
kidnapping false imprisonment sex assault |
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Common law strict liability crimes
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Welfare crimes (selling to minor)
Statutory rape |
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Criminal cause in fact
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But for cause
Acceleration of result |
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Criminal proximate cause
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- Intervening factors would cut
- Eggshell victim would not cut |
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Common law accomplice elements
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- Encourages and Aids
- Specific intent that crime be committed - no defense to accomplice |
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Common law accomplice vicarious liability
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- L for all crimes committed by principal aided or encouraged
- L for all foreseeable crimes committed by principal |
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Common law withdrawal defense for accomplice liability
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- Encourages: discourages
- Aids: take substantial steps to prevent the crime from being committed |
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NY accomplice elements
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- Aids or encourages the conduct
- Intends that the crime be committed - No defense for accomplice |
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NY criminal facilitation
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- Knowledge that crime be committed
- Aids or encourages the conduct |
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NY defense of withdrawal from accomplice liability
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"Voluntary and complete" withdrawal
Both aids/encourages: take substantial step to prevent the crime from being committed |
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Defenses to accomplice
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- Mere presence
- Mere knowledge (NY: facilitation) - Victim of protected class |
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Common law solicitation
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- asking, inciting, counseling or urging another to commit a crime
- Specific intent that the crime be committed = Asking is the act targeted |
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Common law conspiracy elements
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- Agreement (2 or more) to commit a crime
- Specific intent to agree - Specific intent to accomplish the objective - Overt act (preparatory is OK) |
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Common law vicarious liability for consiprator's crimes
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- L for all crimes committed by co-conspirators in furtherance
- L for all foreseeable crimes committed by co-conspirators |
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Common law withdrawal from conspiracy
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One cannot withdraw from "conspiracy."
- Still L for past crime committed by D and co-conspirators - But no longer liable for crimes committed by other co-conspirators after withdrawal |
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NY withdrawal from conspiracy
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It is an affirmative defense if:
- Withdrawal is due to change of heart - Withdrawal is complete and voluntary (prevent the crime from happening) |
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Common law requirements for # of D for conspiracy
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- Requires 2
- Wharton's rule: requires 1+ (# required by underlying crime) if # is 2 or more |
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NY law requirement for # of D for conspiracy
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- Unilateral conspiracy is fine
- Wharton's rule |
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Common law and NY attempt (minority MBE)
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- Specific intent a crime committed
- Dangerously close to completion - Incomplete due to reason outside of control |
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MPC attempt (majority MBE)
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- Intention a crime be committed
- Substantial step towards commission corroborative of intent (preparation insufficient) - Incomplete for reason outside of control |
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MBE impossibility defense to attempt
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- Legal impossibility (to commit the underlying crime) is defense
- Factual impossibility is not defense |
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NY impossibility defense to attempt
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Neither legal impossibility nor factual impossibility is a defense
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MBE merge of inchoate crimes
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Merge: attempt, solicitation
Separate: conspiracy |
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NY merge of inchoate crimes
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Merge: attempt
Separate: solicitation, conspiracy |
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Impossibility (of the underlying crime) defense to conspiracy
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NEVER
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NY vicarious liability for conspiracy
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NO vicarious liability for crimes D does not participate in
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Common law withdrawal defense to solicitation
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NO
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NY withdrawal defense to solicitation
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NO
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Common law withdrawal defense to attempt
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NO (note abandonment)
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NY withdrawal defense to attempt
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No (note abandonment)
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Defenses to crimes
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- Incapacity (age, insanity, intoxication)
- Mistake - Self-defense - Duress - Necessity - Entrapment |
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Common law infancy defense for crime
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- under 7: not liable
- 7-14: presumed not to be liable - >14: prosecute as an adult |
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NY infancy defense for crime
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- Under 13: not prosecute as an adult
- 13: only prosecute for 2nd degree murder - 14/15: prosecute for serious crimes against person/property - 16 and above: prosecute as an adult |
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Common law insanity (M'Naughten)
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Due to mental disease or defect, D lacks the *ability* to:
- understand the nature and *quality* of the act - appreciate the wrongfulness of the act |
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Common law insanity (Duham)
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D's action is a product from mental disease or caused by mental disease (not used anywhere)
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Common law insanity (volitional test)
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Due to mental disease or defect, D lacks the *ability* to:
- control the actions - conform the conduct with requirements of law |
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MPC insanity
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Due to mental disease or defect, D lakcs *substantial ability* to:
- appreciate the *criminality* of the act - conform the conduct with requirements of law |
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NY insanity test
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Due to mental disease or defect, D lacks *substantial ability* to appreciate:
- the nature and *consequence* of the act - the *wrongfulness* of the act |
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Common law voluntary intoxciation defense to crime
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- Only available to specific intent crime
- Requires high level of intoxciation to negate the specific intent |
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NY intoxciation defense to crime
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- Only if intoxication negates necessary mental status for a crime (intent/knowledge)
- requires high level of intoxciation |
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Criminal defenses/affirmative defenses burden of proof
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- Defense: prosecution prove beyond reasonable doubt each element of crime and negate the defense
- Affirmative defense: D proves under POE to establish affirmative defenses |
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Common law mistake defense
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Negates necessary mental status:
- Specific intent: any mistake - General intent and malice: reasonable mistake - Strict liability: mistake not a defense |
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NY mistake defense
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Negates necessary mental status:
- Intentional, Knowing, Reckless: any mistake - Criminal negligence: reasonable mistake - Strict liability: no mistake defense |
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Mistake of law as defense
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- Attempt to commit an act which is not a crime (mistakenly believes that it is a crime): defense to attempt
- Not a defense in general (mistakenly believe it is *not* a crime but in fact it *is* a crime) |
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Common law criminal self-defense
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May use self-defense if victim reasonably believes that use of force is necessary to protect himself from immediate use of unlawful force against him.
- Simultaneous - Proportional - No retreat requirement - First aggressor rule - Reasonable mistake in defense |
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NY criminal self-defense
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May use self-defense if victim reasonably believes that the use of force is necessary to prevent unlawful use of force against him.
- Simultaneous - Proportional - Retreat requirement - First aggressor withdrawal requirement - Reasonable mistake in defense |
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First aggressor rule in self-defense
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First aggressor cannot use deadly force in self-defense.
- Common law exception: withdrawal *or* escalation - NY exception: withdrawal *even if* escalation |
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NY rule of retreat in self-defense
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- Must retreat before using deadly force
- No need to retreat if at dwelling (inside) - No need to retreat if cannot retreat safely - [No need to retreat for rape, kidnapping, burglary, robbery or arson] - No duty to retreat for police |
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Use of force to prevent crime
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- may use non-deadly force to prevent any crime
- may use deadly force only for felony risking human life |
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Use of force to arrest
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- Deadly force can be used only if: D tries to escape; risking life or serious bodily harm to others
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Self-defense against arrest
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Common law: unlawful arrest
NY: no self-defense against arrest unless police uses excessive force |
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Mistake in criminal self-defense
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- Reasonable mistake is defense
- Unreasonable mistake is not defense (NY and common law majority) - Unreasonable mistake mitigates crime (MPC/minority) |
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Common law criminal duress defense
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Duress:
- Forced to commit a crime - Force of threat of force - Death or serious bodily harm - D or D's family - Not a defense to homicide |
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NY criminal duress defense
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Duress:
- Forced to commit a crime - Force of threat of force - Death or serious bodily harm - D or D's family - Defense to homicide |
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Common law criminal necessity defense
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D reasonably believes that the crime committed is necessary to prevent a greater harm.
- Not a defense to homicide |
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NY criminal necessity defense
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D reasonably believes that the crime committed is necessary to prevent a greater harm.
- It can be defense to homicide. |
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Criminal entrapment defense
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- Government initiates the crime (sting)
- Proof that D has no predisposition of committing the crime. |
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NY Murder 1st Degree
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D must be 18
Intentional killing One of the aggravating factors: Kill for hire Kill a judge Kill witness 2 or more victims Kill officer on duty Intentional kill during BRAKES |
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NY Murder in 2nd Degree
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- Intentional killing
- Reckless killing with depraved heart - Felony murder (killing is unintentional) |
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NY Manslaughter 1st Degree
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- Intentional killing with EED defense
- Intentional infliction of serious bodily harm resulting in death |
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NY Manslaugther 2nd Degree
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- Normal reckless killing
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NY Criminally Negligent Homicide
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- Criminally negligent
- Killing another |
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Common law murder
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Killing another with malicious aforethought
Malice: - Intent to kill - Intent to inflict serious bodily harm - Reckless with depraved heart - Intent to commit dangerous felony |
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Common law 1st Degree murder
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In many states:
- Premeditated or deliberate murder - Felony murder with serious underlying crimes |
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Common law voluntary manslaughter
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Murder with heat of passion after adequate provocation
- Provocation is reasonable - Actually provoked - No time to cool off - Actually not cooled off |
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Common law involuntary manslaughter
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Criminally negligent manslaughter
Misdemeanor manslaughter |
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Common law battery (crime)
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- General intent
- Unlawful application of force - Causes injury or offense |
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Common law assault (crime)
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- Specific intent
- attempted battery *OR* - creating apprehension (fear) - immediate battery - actual apprehension (fear) |
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NY assault (crime) 1st degree
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- Intent
- Unlawful application of physical force - causes *serious* injury - with weapon |
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NY assault (crime) 2nd degree
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- Intent
- Unlawful application of physical force - causes *serious* injury - NO weapon |
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NY assault (crime) 3rd degree
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- Intent
- Unlawful application of physical force - causes *injury* |
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Common law false imprisonment (crime)
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- General intent
- Confining another - Without consent |
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NY False Imprisonment 2nd Degree
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- Knowing restrain is unlawful
- Confining another - Without consent |
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NY False Imprisonment 1st Degree
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- Knowing consent is unlawful
- Confining another - Without consent - Risks of causing serious bodily injury |
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Common law kidnapping
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- General intent
- Confining another - Without consent - Moving or concealing victim |
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NY kidnapping 2nd Degree
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- Intent or knowledge
- Abducting another |
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NY kidnapping 1st Degree
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- Intent or knowledge
- Abducting another One of three aggravating factors: - For ransom - For > 12 hours, to rape, injure or rob - Cause death of victim |
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Common law and NY rape
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- General intent
- Sexual intercourse - Without consent - Force, threat of force, or unconscious victim |
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Common law statutory rape
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- Strict liability
- Sexual intercourse - Victim under age of consent [MPC/minority: reasonable mistake is defense] |
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NY statutory rape
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- Strict liability
- Sexual intercourse - Victim under 17 - D over 21 |
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Common law larceny
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- Trespassory (wrongful)
- Taking; personal property; of another - Specific intent to retain permanent possession Note: - Another must have lawful custody - Later changed intent to retain: concurrent doctrine - No claim of right |
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Common law embezzlement
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- Taking; personal property; of another
- Specific intent to defraud - Within D's discretionary power and possession |
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Common law false-pretense
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- Obtain *title* of property
- Through intentional false statement - Specific intent to defraud False statement must be about past/current facts; not about future. [Writing check knowing no account] |
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Common law forgery
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- Write or alter an instrument
- So that it is false - Specific intent to defraud |
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NY larceny (with degrees)
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Including common law larceny, false pretense, embezzlement and larceny by trick.
1st Degree: 1 million 2nd Degree: 50,000 3rd Degree: 3,000 4th Degree: 1,000 Petit larceny: <1,000 |
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Common law robbery
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- Larceny (take property from another)
- In the physical presence of victim - Force or threat of force - Specific intent to steal Note: Threat of embarassment: blackmail Threat of future injury: extortion |
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NY robbery 3nd Degree
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Forcible stealing:
- Tresspassory take - Personal property of another - Force |
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NY Robbery 2nd Degree
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Forcible stealing:
- Tresspassory take - Personal property of another - Force Plus: - Presence of another in aid - Stolen a car - Causing injury |
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NY robbery 1st Degree
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Forcible stealing:
- Tresspassory take - Personal property of another - Force Plus: - Causing *serious* injury - With weapon |
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Common law arson
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- Burning of building
- Malicious Not required anymore: dwelling; "of another" Charring is sufficient (previously requires some pieces of building to burn) Must burn the building itself |
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NY Arson 4th Degree
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Reckless burning of building
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NY Arson 3rd Degree
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Intentional burning of building
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NY Arson 2nd Degree
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- Intentional burning of building
- D knew or should have known there is person inside |
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NY Arson 1st Degree
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- Intentional burning of building
- D knew or should have known there is person inside - Using explosive or incendiary device |
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Common law burglary
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- Break
- Entry - Dwelling - At night - Specific intent to commit felony Now: at night; break; felony; dwelling; etc are removed or modified |
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NY Burglary 3rd Degree
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- Enter or remain
- In a building - With intent to commit crime |
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NY Burglary 2nd Degree
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- Enter or remain
- In a building - With intent to commit crime 1 of 3 factors: - Dwelling - Causing serious injury - Weapon |
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NY Burglary 1st Degree
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- Enter or remain
- In a building - With intent to commit crime - D knows the building to be dwelling 1 of 2 factors: - Causing serious injury - Weapon |
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NY menacing
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Attempted assault in NY (specific intent to assault)
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A year and a day rule
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Death must result within 1 year and a day (historically) for homicide
Abolished now |
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Common law felony murder
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- Commission of felony (convicted)
- Felony is inherently dangerous - Felony is unrelated to murder - A non-felon is killed - During crime or immediate flight - Killing is foreseeable [Flight: ends at 1st temporary safe house] [Co-felon killed: not felony murder] |
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NY Felony Murder
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- Commission of BRAKES
- No need of conviction; sufficient evidence for commission is good - Intentional or unintentional killing - Non-felon is killed - During crime or in immediate flight - Killing is foreseeable - Non-slayer rule N/A BRAKES: Burglary Robbery Arson Kidnapping Escape Sexual assault |
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NY Non-slayer rule
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Defense of felony murder
- Not the person who kills - Not bringing a weapon - No reason to know a co-felon brought weapon - No reason to expect use of force that could kill |
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NY "Aggravated Homicide"
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Any homicide with aggravating factor:
- Kill office in line of duty - Kill child under 14, D > 18, in cruel and wanton manner |
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Common law possession crimes
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Possession
- Actual possession - Dominion or control (constructive) |
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NY Possession Crimes
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- Controlled substance
- Weapon (loaded and operable) - Stolen property |
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Search and Seizure (elements)
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- 4th Amendment applies
- Search with warrant - Search without warrant - Admissibility of evidence obtained in unconstitutional search and seizure |
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Elements to apply 4th Amendment to Search and Seizure
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- Government Agent
- Reasoanble expectation of privacy |
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Government Agent for 4th Amendment
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- Publicly paid police
- Private citizens under the direction of police - Private police deputized with power to arrest - Public school principals |
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Places expressly within 4th Amendment for expectation of privacy
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Person, effect, papers, and house (including curtilage)
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Places with no expectation of privacy for 4th Amendment search and seizure
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voice, handwriting
account record open fields, view from air garbage, odor paint scrap |
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Standards for reasonable expectation of privacy for 4th amendment search and seizure
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Subjectively, actual expectation
Objectively, reasonable expectation |
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Standing to challenge for 4th Amendment Search and Seizure
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D's own constitutional rights must be impaired.
- D is owner, tenant of house - D, guest, re area D has access - D, owner of item, has reasonale expectation Note: - Temporary guests for business purpose has no expectation and no standing - NY: Driver/passenger has standing if possession of weapon is attributed to them |
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Valid warrant search under 4th Amendment: elements
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- Warrant is valid
- MBE: Good faith if warrant is invalid - Execution complies with warrant |
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Valid search warrant requirement
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- Probable cause
- Particularity - Neutral and detached magistrate |
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Probable cause for search warrant
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There must be a fair probability that contraband would be found in the searched area under the totality of circumstances (POE)
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Affidavit requirement for MBE search warrant
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- Hearsay is fine
- Affidavit must provide sufficient corroborative evidence for the magistrate to make a "common sense practical determination" of probable cause |
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Affidavit requirement for NY search warrant
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Affidavit must show:
- Basis for the information - Veracity and reliaiblity of informant |
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Particularity for search warrant
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- Specify the area to be searched
- Specify the item to be seized |
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Wiretap (surveilance) warrant
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Affidavit must show, in particular:
- Crime - Conversation - Persons to the conversation - Time limit |
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Other party agreed to wiretap
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D assumes the risk that other party may agree; no violation of D's 4th Amendment rights.
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MBE Good Faith saving invalid search warrant
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If the police obtained the warrant in good faith, it may still use.
Not good faith: - Eggregious lacking probable cause - No particularity (reasonable officer can't rely) - Knowing or reckless misrep of facts - Biased magistrate |
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Valid execution of warrant
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- Compliance with terms
- Knock and announce No need to knock & announce if: - futile - dangerous - hindering investigation Even if no knock and annonce, evidence still admissible. |
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Warrantless search & seizure permitted: situations
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Exigent circumstances
Search incidental to arrest Consent Automobile search Plain view Inventory Special needs Terry stops and frisks |
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Exigent circumstances exception for search warrant
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- Evanascent evidence
- Hot pursuit (enter house; seizure) - Emergency aid |
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Search incidental to arrest exception for search warrant
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- Arrest must be lawful
- Search for weapon or preserve evidence related to arrested crime - Contaporaneous with arrested crime |
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Scope of search for search incidental to arrest
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MBE: Wingspan (person, cloth, effect, container within arrestee's immediate control)
NY: cannot search container unless suspect to be armed |
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Search vehicle incidental to arrest exception to warrant
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MBE
- Unsecured: cabin (not trunk) including container - Secured: no search unless reason to believe that there is evidence relating to arrested crime NY: once out of car, cannot search car for evidence * See other potential automobile search exceptions |
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Consent exception to warantless search
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- Voluntary and intelligent
- Apparent consent (reasonable belief) - Co-tenants: objector wins - Scope of consent: reasonable belief |
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5th Amendment Miranda (violation)
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Violated if:
- Custody: atmosphere suggesting not free to leave - Interrogation: known or should have known as likely to lead to confession - No waiver - Not for public safety questioning - Not for spontaneous blurt out confessions - Only for testimonial evidence (confession/lie detector), not for physical evidence |
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5th Amendment Miranda (content)
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- Right to silence
- Used against D in court - Right to counsel - Appoint on for free if can't afford |
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5th Amendment Miranda (waiver)
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- Knowing
- Intelligent - Voluntary - May be express (signed writing) - May be implied (e.g. cooperating) NY: if kept child from parent, waiver invalid |
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5th Amendment Miranda (invoke)
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- Express invoke for right to silence
- Unambiguous for right to counsel |
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5th Amendment Miranda (result of invocation)
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Once you say: I want a lawyer
Police must scrupulously honor: - Stop questioning - May not re-initiate Reinitiate: - By defendant - By police, 14 days after release, obtain a valid waiver |
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Pretrial identification (5th Miranda)
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NO Miranda right to counsel for line-up, show-up or photo-array
(Miranda is for testimony) |
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Pretrial identification (6th Amendment)
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MBE:
Line-up: after charge Show-up: after charge Photo-array: No NY: indelible right to counsel. Line-up/show-up pre-charge if: - D is aware he has counsel - D requests counsel |
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Pretrial identification (Due Process)
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Unconstitutional if so suggestive that there is substantial likelihood for misidentification.
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Pretrial identification (remedy)
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Remedy: no in-court identification
Exception: prosecution prove: - Specificity of identification - Certainty of identification - Ample opportunity to observe (Usually only violation to right to counsel; but not due process for suggestiveness) |
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MBE Grand Jury
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- Functions: issue indictment
- Secretive - Not required under constitution No Miranda right or right to counsel |
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Detention hearing not required if
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- Grand Jury indicted
- Arrest warrant issued (Detention hearing is to determine probable cause to take D into custody) |
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After arrest, D must be brought before a magistrate to
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- Advise D of his right
- Set bail - Appoint a counsel, if necessary |
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NY Grand Jury
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Grand Jury indictment required.
Sufficient evidence to establish: - All elements of crime - Reasonable cause to believe that defendant committed the crime D may request to testify |
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Defendant's trial right
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- Prosecutor must disclose all exculpatory evidence
- Unbiased judge (no financial stake; no actual prejudice) |
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Criminal right to jury
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Right to jury trial for offenses > 6 months.
- Jury trial (6-unanimous;12-no need to be unanimous) NY: Jury: 12/11; unanimous - Pool of cross-section of community - 3 peremptive strikes not racial or gender based |
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Criminal ineffective assistance of counsel
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- Deficency
- But for deficiency, D would win It requires colorable argument that D is not guilty. Difficult to meet. |
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Plea bargain (requirement)
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Judge must inform D (on record):
- Nature of charges - Consequence of plea bargain D must agree knowingly, intelligently, and voluntarily. |
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Withdrawal of plea bargain after sentencing (requirements)
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- Involuntary bargain
- Ineffective assistance of counsel - Prosecution breach bargain - Jurisdictional defect |
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Punishment (8th Amendment)
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Cruel and unusual punishmet prohibited.
Death penalty violates if: - categorically automatic death sentence - on mentally retarded D - execution when D is insane - D was under 18 at commission Jury must be able to consider all mitigating evidence |
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Double Jeopardy (attach)
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- Jury trial: 1st juror swears in
- Bench trial: 1st witness swears in - Plea bargain: unconditionally enters No double jeopardy for same crime in same sovereign |
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Double jeopardy (double)
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MBE: not if each crime has a different element from the other
NY: transactional. Not double if: - Substantially different elements - 1 different element AND for different harms - Different crimes for different victims - One possession and one use |
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Double jeopardy (second trial requirement)
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- Hung jury
- Mistrial for manefest necessity (e.g. defect in indictment) - D successfully appeals (other than insufficient evidence) - Defendant did not hold bargain |
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Take the 5th
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One may refuse to testify under oath
NY Except: Grand Jury Exception: immunity granted Exception: statutory limitation passed Waiver Once testify, forever waives taking 5th Defendant takes the stand |
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Take the 5th (immunity)
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MBE: grand immunity to use testimony against witness for same crime - may not take 5th
NY: grant immunity for the transaction |
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5th Amendment (Prosecutor conduct)
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Prosecutor may not allude to:
- Defendant invoking right to silence - Defendant invoking right to counsel - Defendnat decides not to testify |
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Automobile search exception under 4th Amendment
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- Probable cause that contraband or evidence of crime can be found on the car
- Can search anywhere in the car including trunks (container, package, and luggage) Search after traffic stops: - Must have probable cause prior to initiate search |
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Plain view exception to 4th Amendment search and seizure
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- lawful access to the area searched
- lawful access to the item searched - the item must be plainly recognizable as contraband or evidence of crime * NY: for obscene materials, search warrant is required even if in plain view |
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Inventory exception for 4th Amendment search and seizure
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- Upon booking into incarceration
- Upon impounding of vehicles Requirements: - State must have relevant regulations that are reasonable (considered in the totality) - Police must follow the requirements of the regulations |
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Special needs exception to 4th Amendment search and seizure
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Special needs must not be general interest in law enforcement
- Random drug testing (for customs officers handling drug interdiction; railroad employees after accident; public school children participate in any extracaricular activities) - Public school principal may search to enforce school rules (not unreasonably offensive) - Government employees' desks may be searched for work-related misconduct - No 4th Amendment right at border (may search if reasonable suspicion) |
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4th Amendment right at border
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None
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Terry Stops and Frisks
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Terry stops: stop (seize) suspected individuals to investigate
Terry frisks: search individuals only to protect officer safety - Only exception not requiring probable cause - reasonable suspicion of criminal activity or armed is sufficient (i.e. specific, articulable reasons) |
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Terry Stops
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- seized if reasonable belief of: (a) no freedom to leave; and (b) no freedom to refuse questioning
- Hot pursuit MBE: seized if: (a) physically restraining suspect or (b) submit to police - Hot pursuit NY: seizure in itself - Seize cars: drivers and passengers are seized * dog sniffs are not seizure if not substantially proloning the traffic stop |
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Terry Frisks
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Officer may pad the suspect for weapon
MBE: officer may seize: - Weapons - Contraband or evidence if recognize without physical manipulation NY: officer may seize - Weapons - Contraband or evidence only if thought it is a weapon Car frisks: may search car for weapons (no locked containers) Protective sweeps for criminal confederates - Adjacent area: reasonable suspicion - Remote area: reasonable prudent officer could conclude that confederates are there |
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Crim Pro Arrest requirement
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Arrest: place into custody for prosecution or interrogation; call to police station for fingerprinting
- Probable cause - Can arrest for any offense even if only punishable by civil fines - requires an arrest warrant if suspect is at home and no emergency - requires an arrest warrant and a search warrant if suspect is in a 3-party home - may arrest without warrant if on public property if suspecting common enterprises among driver/passenger, may arrest all |
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Crim Pro confessions applicable law
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- 14th amendment due process
- 5th amendment Miranda rights - 6th amendment right to councel |
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Confessions (14th Amendment)
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- confessions must be voluntary
- there must not be any police coersion |
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Confessions (6th Amendment) - MBE
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- it starts only after formal charges are made
- it applies only to the specific crime charged (not relating to other crimes) Confession obtained violates right to counsel if: - No knowing, intelligent and voluntary waiver is made - Deliberately solicited by the police |
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Confessions (6th Amendment) - NY
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It arises if:
- Significant judicial process starts (arraignment; formal charge; etc) - Procedures overbearing defendant's free will starts (police want to overwhelm D) - Presence of counsel is beneficial to defendant * if released, and later taken into custody for unrelated crime, not automatically attach to that Scope: - it applies to all confessions, including other crimes not charged - deliberately solicited by the police Waiver: - Knowing, intelligent, and voluntary requirement - Indelible right to counsel requires counsel presence if one is appointed |
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Use of evidence obtained in violation of constitution (Crim Pro)
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Police's deliberate, reckless or gross negligent violation:
- Prosecution case-in-chief: inadmissible - Impeachment of D's testimony if D takes stand: admissible - Miranda violation against 3rd party: inadmissible Exceptions: - If only violating knock and annonce: admissible - If police makes reasonble mistake: admissible Fruit of poisonous tree: subsequent evidence also inadmissible. Evidence is inadmissible if discovered due to prior inadmissible evidence Exception to poisonous tree: Physical evidence discovered by Miranda-violated confession: admissible Prosecution proves break of the chain: - Independent source - Inevitable discovery - Defendant regains free-will (second try for Miranda right violation to obtain same evidence if the first one is not coercive) |
