Ca 12 Crim Law

Front 1

When does a state have jurisdiction over a crime (5)?

Back 1

If (1) any act constituting an element of the offense was committed in the state, (2) an act outside the state caused a result inside the state, (3) the crime involved the neglect of a duty imposed by the law of the state, (4) there was an attempt or conspiracy outside the statute plus an act inside the state, or (5) there was an attempt or conspiracy inside the state to commit an offense outside the state

Front 2

How do you distinguish between a felony and a misdemeanor?

Back 2

Felonies are generally punishable by death or imprisonment for more than one year, other crimes are misdemeanors

Front 3

What are the general constitutional limits on criminal statutes?

Back 3

(1) Vagueness: there must be (a) fair warning (i.e., a person of ordinary intelligence must be able to discern what is prohibited) and (b) no arbitrary and discriminatory enforcement. (2) No ex post facto laws. (3) No bills of attainder.

Front 4

What is the rule about "merger" as to solicitation or attempt in criminal law?

Back 4

One who solicits another to commit a crime (where solicitation itself is a crime) cannot be convicted of bother solicitation and the committed crime. Same with attempt. Conspiracy, however, does not merge with the completed offense.

Front 5

What is the rule about "merger" of lesser included offenses into greater offenses in criminal law?

Back 5

A lesser included offense is one that consists entirely of some, but not all, elements of the greater crime. You can't be convicted of both.

Front 6

What are the general elements of most crimes?

Back 6

(1) Actus reus (a physical act or omission); (2) mens rea (state of mind); (3) concurrence (physical act and mental state existed at the same time); (4) harmful result and causation.

Front 7

Discuss the rule for the general physical act element of most crimes?

Back 7

The act must be physical, it must be a conscious exercise of the will.

Front 8

What are the three requirements for crimes that include an act of omission element?

Back 8

Normally you have to take an affirmative act. But if there is (1) a legal duty to act, (2) knowledge of facts giving rise to that duty, and (3) a reasonable opportunity to perform, then he could be guilty of a crime of omission.

Front 9

In crimes based on an omission to act, what are five examples of sources of a legal duty?

Back 9

(1) Statute (ex. income tax returns, (2) a contract, (3) a close relationship between defendant and victim, (4) assumption of care, (5) creation of peril by the defendant.

Front 10

What are the three types of mental states in traditional (non-MPC) criminal law?

Back 10

(1) Specific intent, (2) malice, and (3) general intent.

Front 11

Generally, what is a specific intent crime in criminal law?

Back 11

The definition of the crime includes not only doing an act, but the doing of it with a specific intent or objective. It can't be inferred from the act, the prosecution must produce evidence to prove the intent. It also means that some defenses are available: voluntary intoxication and unreasonable mistake of fact.

Front 12

What are the specific intent crimes (9)?

Back 12

(1) Solicitation (intent to have the person solicited commit the crime); (2) attempt (intent to complete the crime); (3) conspiracy (intent to complete the crime); (4) First degree premeditated murder (premeditation); (4) assault (intent to commit a battery); (5) larceny and robbery (intent to permanently deprive another of his interest in property); (6) burglary (intent to commit a felony in a dwelling); (7) forgery (intent to defraud); (8) false pretenses (intent to defraud); (9) embezzlement (intent to defraud)

Front 13

What are the crimes that just require genery intent (4)?

Back 13

(1) Battery, (2) rape, (3) kidnapping, (4) false imprisonment

Front 14

What are the crimes that require malice for intent (2)?

Back 14

(1) Common law murder, (2) arson

Front 15

What are the crimes that impose strict liability (3)?

Back 15

(1) Statutory rape, (2) selling liquor to minors, (3) bigamy (in some states)

Front 16

What is the specific intent required to commit solicitation?

Back 16

Intent to have the person solicited commit the crime.

Front 17

What is the specific intent required to commit attempt?

Back 17

Intent to complete the crime.

Front 18

What is the specific intent required to commit conspiracy?

Back 18

Intent to have the crime completed.

Front 19

What is the specific intent to commit first degree premeditated murder?

Back 19

Premeditated intent to kill.

Front 20

What is the specific intent to commit assault?

Back 20

Intent to commit a battery

Front 21

What is the specific intent required to commit larceny and robbery?

Back 21

Intent to permanently deprive another of his interest in the property taken

Front 22

What is the specific intent required to commit burglary?

Back 22

Intent at the time of entry to commit a felony in the dwelling of another

Front 23

What is the specific intent required to commit forgery?

Back 23

Intent to defraud

Front 24

What is the specific intent required to commit the crime of false pretenses?

Back 24

Intent to defraud

Front 25

What is the specific intent required to commit embezzlement?

Back 25

Intent to defraud

Front 26

What is the rule about "malice" as a mental state in criminal law?

Back 26

While it seems similar to specific intent, the common law crimes of murder and arson are not open to specific intent defenses. This mental state was created specifically to preclude the use of the defenses. The prosecution need only show that the defendant recklessly disregarded an obvious or high risk that the particular harmful result would occur.

Front 27

Generally, what is general intent in criminal law?

Back 27

Most crimes just require an awareness of all factors constituting the crime. The defendant needs to be aware that she's acting in the proscribed way. The jury can infer an intent from the act.

Front 28

What is the rule about the mental element required in strict liability crimes?

Back 28

It does not require awareness of all of the factors constituting the crime, but usually not all the elements.

Front 29

How does the court identify whether a crime is a strict liability crime?

Back 29

The are usually known as public welfare offenses and are "regulatory." Usually there is a low penalty and the commnity doesn't think it involves significant impropriety. Just because a statute does not include mental state does not necessarily mean the offense is strict liability

Front 30

What are the four types of intent under the MPC?

Back 30

Remember that the common law has two general cateogories: specific and general intent. MPC has: (1) purposely, (2) knowingly, (3) recklessly, and (4) negligence

Front 31

What's the default level of intent under the MPC?

Back 31

Recklessness (A person acts recklessly when he knows of a substantial and unjustifiable risk and consciously disregards it. Mere realization of the risk is not enough. Thus, recklessness involves both objective ("unjustifiable risk") and subjective ("awareness") elements.)

Front 32

What level of intent does "willfully" in a stautory section imply in MPC states?

Back 32

"Knowingly" (A person acts knowingly when he is aware that his conduct is of the proscribed nature or that certain circumstances exist. It satisfies the willful conduct requirement. This uses a subjective standard.)

Front 33

What is "purposely" or "intentionally" as a state of mind under the MPC?

Back 33

A person acts purposely when it is his conscious object to engage in certain conduct or cause a certain result. This uses a subjective standard.

Front 34

What is "knowingly" as a state of mind under the MPC?

Back 34

A person acts knowingly when he is aware that his conduct is of the proscribed nature or that certain circumstances exist. It satisfies the willful conduct requirement. This uses a subjective standard.

Front 35

What is "recklessness" as a state of mind under the MPC?

Back 35

A person acts recklessly when he knows of a substantial and unjustifiable risk and consciously disregards it. Mere realization of the risk is not enough. Thus, recklessness involves both objective ("unjustifiable risk") and subjective ("awareness") elements. Unless a statute specifies a different degree of fault or is a strict liability offense, the defendant must have acted at least recklessly to be criminally liable.

Front 36

What is "negligence" as a state of mind under the MPC?

Back 36

A person acts negligently when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or will follow, and such failure constitutes a substantial deviation from the standard of care. It's an objective standard (but not as low as in torts, the defendant must have taken a very unreasonable risk). This uses an objective standard.

Front 37

Can violation of a statute or ordinance be used as evidence of criminal negligence?

Back 37

Yes, as in tort law, it might be

Front 38

How does state of mind apply to criminal elements?

Back 38

The statute might establish a culpable state of mind, in which case it would apply to all materal elements of the offense (ex. "knowingly makes a sale of intoxicating beverage to a minor"). If it does not define a mental state, then recklessness applies (unless it's a strict liability crime).

Front 39

What is a vicarious liability offense in criminal law?

Back 39

One in which a personal without personal fault may nevertheless be held vicariously liable for the criminal conduct of another (usually an employee).: usually used by legislatures as a regulatory crime to impose fines on companies.

Front 40

How does the MPC approach enterprise liability for employees' criminal acts?

Back 40

The corporation may be guilty if (1) the offense consists of a failure to discharge a specific duty imposed by law, (2) the statute plainly intended to impose liability ont he corporation, (3) the commission of the offense was tolerated by the board of directors or a high managerial agent

Front 41

State an example of how concurrence works in criminal law.

Back 41

The defendant must have had the intent necessary for the crime at the time he committed the act, and the intent must have actuated the act. For example, if D is driving to V's house to kill him, he will lack the necessary concurrence for murder if he ACCIDENTALLY runs V over before reaching the house.

Front 42

What is an accomplice under criminal law?

Back 42

One who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime. He is liable for the principal crime if accomplice intended to aid or encourage the crime.

Front 43

What is an accessory after the fact?

Back 43

One who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order the help the felon escape arrest, trial, or conviction. Might be called "harboring a fugitive," "aiding escape," or "obstructing justice." There are usually exemptions for close relatives to the offender.

Front 44

What is the intent required for accomplicorial liability?

Back 44

Specific intent to aid or encourage the principal in committing the crime. The mere knoweldge that a crime would result is insufficient, at least where the aid involves the sale of ordinary goods at ordinary prices. For example, a gas station attendant will not be liable for arson for knowingly selling a gallon of gas to an arsonist, but might have a sufficient "stake in the venture" if he sells for $100/gallon.

Front 45

What is the scope of liability for accomplices under criminal law?

Back 45

He is responsible for the crimes committed by the principal, as well as any other foreseeable or probable crimes committed.

Front 46

What is the rule for withdrawal as a defense to accomplice liability?

Back 46

One who rendered encouragement or aid to another may avoid liability if he withdraw before it is actually committed. Effective withdrawal depends upon what the person did: (1) repudiation is sufficient withdrawal if it was mere encouragement; (2) attempt to neutralize assistance is required if participation went beyond mere encouragement.

Front 47

What are the elements to solicitation?

Back 47

Inciting, counseling, advising, inducing, urging, or commanding another to commit a felony with the specific intent that the person solicited commit the crime.

Front 48

What are some possible defenses to solicitation? What aren't?

Back 48

It's not a defense if the person solicited isn't convicted or could not have been completed. It's also not a defense if you renounce or withdraw solicitation. If you persuade the solicited person not a commit a crime, however, this is good enough in the MPC. It is a defense if the solicitor is the one that the statute is trying to protect (i.e., a woman cannot be guilty of soliciting a man to transport her across state lines for immoral purposes).

Front 49

What is conspiraccy, and what are the elements of conspiracy? What's ths scope of criminal liability?

Back 49

Conspiracy is an agreement between two or more parties to commit a crime. (1) Agreement between two or more persons, (2) intent to achieve the objective, and (3) an overt act. Remember that it takes at least two. A conspirator can liable for crimes committed by other conspiratorys if the crimes (1) were committed in furtherance of the objectives of the conspiracy and (2) were foreseeable.

Front 50

What is the rule for the agreement element of the crime of conspiracy?

Back 50

They need to agree to commit a crime. Under the Wharton rule, more people need to be in agreement than it takes to commit a crime. Under the MPC, just one person has to believe he is entering into an agreement (unilateral).

Front 51

What are the rules for the intent requirement of the crime of conspiracy?

Back 51

They must have the specific intent to commit the object of the conspiracy. Most courts say they don't need to know that the object was criminal (a minority of courts say you need a "corrupt motive")

Front 52

What is the rule for the overt act element of the crime of conspiracy?

Back 52

Most states require that they be some overt act, and it can be simple preparation. If any member of the conspiracy takes this step, the element is satisfied.

Front 53

What is the rule about withdrawal as a defense to conspiracy?

Back 53

Conspiracy is complete at the time the agreement is made, so withdrawal isn't usually a defense. However, if the defendant thwarts the success of the conspiracy, it might be a defense under the MPC. Withdrawal might be a defense to other crimes committed in furtherances of the conspiracy, including the substantive target crime of the conspiracy. To withdraw, you have to perform an affirmative act that notifies all memebrs of the conspiracy about the withdrawal in time to abandon plans. If you provided assistance, you have to try to neutralize the assistance.

Front 54

When does a conspiracy end?

Back 54

Usually when the wrongful objective is completed. This important because the acts and statements of co-conspirators are admissible against a conspirator only if they were done or made in furtherance of the conspiracy.

Front 55

What is attempt, and what are the elements of attempt?

Back 55

Attempt is an act, done with intent to commit a crime, that falls short of completing the crime. Elements: (1) a specific intent to commit a crime (i.e., must intend to perform an act and obtain a result that, if achieved, would constitute a crime) and (2) an overt act in furtherance of that intent (i.e., a "substantial step in a course of conduct planned to culminate in the commission of the crime" that strongly corroborates the actor's criminal purpose).

Front 56

What is the rule for legal and factual impossibility as a defense to the crime of attempt?

Back 56

Factual impossibility is not a defense (e.g., just because victim has no money, an attempt to rob is still attempt). Legal impossibility is a defense. It means that the what the defendant attempted to do was not a crime. Ask yourself, "if the defendant were able to complete all of the acts that he intended to do, and if all the attendant circumstances actually were as the defendant believed them to be, would the defendant have committed a crime?" If the answer is yes, then it's a factual impossibility and not a defense.

Front 57

What is the rule for abandonment as a defense to attempt?

Back 57

The general rule is that it is never a defense. The MPC, however, says it may be a defense if it was voluntary and it is a complete abandonment--not just a postponement

Front 58

What does the insanity defense accomplish and what are the four tests?

Back 58

(1) M'Naghten (defendant does not know right from wrong); (2) irresistible impulse (an impulse the defendant can't resist; (3) Durham (but for the mental illness, the defendant would not have done the act); (4) ALI/MPC: combination of M'Naghten and irresistible impulse.

Front 59

What is the M'Naghten rule for insanity as a defense?

Back 59

A defendant is entitled to acquittal only if he had a mental disease or defect that cause him to either: (1) not know that his act would be wrong, or (2) not understand the nature and quality of his actions. Loss of control because of metnal illness is no defense.

Front 60

What is the irresistible impulse test as a defense under insanity?

Back 60

A defendant is entitled to acquittal only if, because of a mental illness, he was unable to control his actions or conform his conduct to the law.

Front 61

What is the ALI or MPC test for insanity as a defense?

Back 61

A defendant is entitled to acquittal if he had a mental desease or defect and, as a result, he lacked the substantial capacity to either: (1) appreciate the criminality of his conduct or (2) conform his conduct to the requirements of the law.

Front 62

What is the rule about VOLUNTARY intoxication as a defense to criminal conduct?

Back 62

It's a defense to specific intent crimes if the intoxication prevented the defendant from formulating the intent, usually under the MPC/ALI approach. But it's not a defense to crimes requiring malice or recklessness.

Front 63

What is the rule about INVOLUNTARY intoxication as a defense to criminal conduct?

Back 63

It comes from taking an intoxicating substance without knowledge of its nature or under direct duress. It may be treated as a temporary mental illness and might be a complete defense if she meets whatever test the jurisdiction adopted for insanity

Front 64

What is the rule for using nondeadly force in self-defense under criminal law?

Back 64

An individual who is without fault may use such force as reasonably appears necessary to protect herself from the imminent use of unlawful force. No duty to retreat.

Front 65

What is the rule for using deadly force in self-defense in criminal law?

Back 65

You can use deadly force in self-defense if (1) you are without fault, (2) you are confronted with unlawful force, and 3) you are threatened with imminent death or great bodily harm. You don't generally have to retreat before using deadly force. If you don't meet the tests, you'll by guilty of manslaughter.

Front 66

When can the aggressor use self-defense under criminal law?

Back 66

Usually, if you're the aggressor you have no right to use force in your own defense. However, if (1) an aggressor withdraws and communicates the withdrawal, then you can or (2) if the victim suddenly escalates a minor fight into one involving deadly force and doesn't give the aggressor a right to withdraw.

Front 67

When can you use the self-defense doctrine to help others under criminal law?

Back 67

If all the other requirements of the defense are met, then you can. You don't need to have some special relationship to the person aided.

Front 68

When can you use nondeadly force in defense of a dwelling?

Back 68

When, and to the extent that, you reasonably believe that such conduct is necessary to prevent or terminate another's unlawful entry.

Front 69

When can you use deadly force in defense of a dwelling?

Back 69

To prevent a violent entry made with the intent to commit a personal attack on an inhabitantor to prevent an entry to commit a felony in the building.

Front 70

When can you use nondeadly force in defense of property?

Back 70

You can use it to defend against removal or damage. You can't use it to regain possession of property unless you are in "hot pusuit"

Front 71

When can you use deadly force to defend property?

Back 71

Never

Front 72

What is the doctrine of necessity in criminal law?

Back 72

If a person reasonably believes that the crime is necessary to avoid an imminent and greater injury to society than that involved in the crime. The test is objective, so good faith beliefs isn't good enough. Death to protect property is never justified. You can't use the defense if you created the situation.

Front 73

What is the doctrine of duress (a/k/a compulsion or coercion) in criminal law?

Back 73

A person is not guilty of an offense, other than homicide, if he performs an otherwise criminal act under the threat of imminent infliction of death or great bodily harm, so long as his belief is reasonable and that it would affect him, his immediate family or a third person.

Front 74

What are the two requirements for using mistake of fact as a defense in criminal law?

Back 74

You can only use if if it shows you didn't have the state of mind required for the crime and the mistake might have to be reasonable. If it's a malice or general intent crime, then reasonableness is required. If it's a specific intent crime, no reasonableness required.

Front 75

What is the rule about mistake of law as a defense in criminal law?

Back 75

General rule is that it's not a defense to say you didn't know about the law. However, if the mental state requires that the defendant knew some collateral aspect of the law, then it might negate it.

Front 76

What is the rule for consent as a defense in criminal law?

Back 76

It is generally no defense. However, if it negates an element of the offense, consent may be a complete defense (e.g., rape or adult kidnapping). To use it, you have to prove (1) it was freely given, (2) the party was legally capable, and (3) no fraud was involved

Front 77

What are the requirements to using entrapment as a defense under criminal law?

Back 77

It's very narrow. Have to prove the criminal design started with the police and (2) that the defendant wasn't predisposed to commit the crime until he was contact by the police. Just offering the defendant an opportunity to commit a crime is insufficient (posing as a junkie looking for a fix).

Front 78

What constitutes traditional battery in criminal law? What constitutes traditional aggravated battery in criminal law?

Back 78

An unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. The state of mind required is law, just criminal negligence will do. Aggravated battery (usually a felony): (1) using a deadly weapon (any object can be deadly depending on how it's used), (2) serious bodily injury is caused, or (3) the victim is a child, woman, or police officer. (The force doesn't need to be direct; you could send a dog to bite someone.)

Front 79

What is traditional assault in criminal law? What is aggravated assault?

Back 79

Either (1) an attempt to commit a batter or (2) the intentional creation (other than just words) of a reasonable apprehension of imminent bodily harm. Aggravated: using a deadly weath or with intent to rape or maim.

Front 80

In a nutshell, what's the key distinction between assault and battery?

Back 80

If there has been an actual touching of the victim, then the crime can only be battery, not assault.

Front 81

What are the three general types of common law criminal homicide?

Back 81

(1) murder, (2) voluntary manslaughter, and (3) involuntary manslaughter

Front 82

What is common law murder (general rule and 4 key points)?

Back 82

Murder is the unlawful killing of a human being with "malice aforethought" (this is California's formulation too). (California says "sudden provocation" or "heat of passion"). First degree murder in California is willful, deliberate, and premeditated. Malice aforethough exists if there are no facts reducing the killing to voluntary manslaughter and it was committed with one of the following states of mind: (1) intent to kill, (2) intent to inflict great bodily injury, (3) reckless indifference to an unjustifiably high risk to human life ("abandoned and maligned heart"), or (4) intent to commit a felony (felony murder).

Front 83

What is common law voluntary manslaughter (the simple rule plus four important points)?

Back 83

It's a killing that would be murder but for the existence of adequate provocation. Provocation is adequate only if: (1) it arouses sudden and intense passion in an ordinary person causing him to lose self-control (threat of deadly force or spouse in bed with someone); (2) defendant was provoked; (3) insufficient time for passions to cool; (4) defendant did not in fact cool off.

Front 84

What is common law involuntary manslaughter?

Back 84

A killing is involuntary manslaughter if it was committed with criminal negligence (defendant was grossly negligent) or during the commission of an unlawful act (misdemeanor or a felony not included in the felony murder rule). Foreseeability is a requirement. I think this is basically second degree murder in California

Front 85

What is the felony murder rule in California?

Back 85

Any willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.

Front 86

What are some limitations to the felony murder rule?

Back 86

The defendant must be guilty of the underlying felony (a defense will count here), the felony must be independent of the killing, death must be foreseeable.

Front 87

What are the causation requirements for murder?

Back 87

Must be cause in fact and the proximate cause. Cause in fact is "but for" with a traditional "year and a day" limitation (WHICH HAS BEEN REMOVED IN MOST STATES). Proximate cause refers to "natural and probable" results (superseding factors can break the chain of proximate causation).

Front 88

What are th elements of false imprisonment?

Back 88

The unlawful confinement of a person without his valid consent--no escape route.

Front 89

What are the elements of kidnapping (2)?

Back 89

Either (1) some movement (asportation) of the victim or (2) concealment of the victim in a "secret" place.

Front 90

What are the traditional elements of larceny in criminal law (6)?

Back 90

A (1) taking (obtaining control) and (2) carrrying away (asportation) (3) of (tangible) personal property (4) of another in possession (5) by trespass (without consent) (6) with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property (and had the intent at the time of the taking).

Front 91

Could an employee be guilty of larcey?

Back 91

Sure. This is the custody v. possession requirement. You have to interfere with someone's possession for it to be larceny. Possession involves a greater scope of authority to deal with the property than does custody. Usually low level employees only have custody. A bailee, on the other hand, as a greater scope of authority over an owner's property and so is not guilty of larceny for taking it, but may be guilty of embezzlement.

Front 92

What are the traditional elements of embezzlement (5)?

Back 92

The (1) fraudulent (2) conversion (i.e., dealing with the property in a manner inconsistent with the arrangement by which defendant has possession) (3) of property (4) of another (5) by a person in lawful posession of that property.

Front 93

What's a key point about the required fradulent intent in embezzelement cases?

Back 93

If defendant intends to restore the EXACT property taken, it is NOT embezzlement. However, if the defendant intends to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money (even of identical value) that he intended to return.

Front 94

What are the traditional elements of false pretenses (4)?

Back 94

(1) Obtaining title (2) to property of another (3) by an intentional (or knowing) false statement of past or existing fact (4) with intent to defraud the other. The victim must actually be deceived by, or act in reliance on, the misrepresentation, and this must be a major factor (or the sole cause) of the victim passing title to the defendant. A misrepresentation about what will occur in the future is not sufficient. A false promise, even if made without the present intent to perform, is also not sufficient.

Front 95

What are the elements of robbery (5)?

Back 95

(1) A taking (2) of personal property of another (3) from the other's person or presence (4) by force or intimidation (5) with the intent to permanently deprive him of it. Basically larceny plus force or threat of force.

Front 96

What is extortion?

Back 96

Obtaining property from another by means of certain oral or written threats. The threats do not need to involve immediate or physical harm.

Front 97

What are the elements of the crime of receipt of stolen property (5)?

Back 97

(1) Receiving possesion and control (2) of stolen (at the time that defendant receives it) personal property (3) known to have been obtained in a manner constituting a criminal offense (4) by another person (5) with the intent to permanently deprive the owner of his interest in the property.

Front 98

What is forgery (4)?

Back 98

(1) Making or altering (by drafting, adding, or deleting); a writing with apparent legal significance (e.g., a contract, not a painting); (3) so that it is false (i.e., representing that it is something that it is not and not just making a misrepresentation); (4) with intent to defraud (even if noone is actually defrauded).

Front 99

What is malicious mischief (3)?

Back 99

(1) Malicious (2) destruction of, or damage to, (3) property of another.

Front 100

What are the traditional elements of burglary (6), and what are the modern statutory changes?

Back 100

(1) A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation--NO CONSENT); (2) and entry (placing any portion of the body or any instrument used to commit the crime); (3) of the dwelling (a structure used at least in part for sleepgin) (4) of another (ownership is irrelevant) (5) at nighttime (6) with the intent of committing a felony therein. No longer need to break, could just remain in a structure, not just dwellings, not at night, and intent to commit a misdemeanor is good enough.

Front 101

What are the traditional elements of arson?

Back 101

The (1) malicious (i.e., intentional or with reckless disregard of an obvious risk) (2) burning (requiring some damage to the structure caused by fire) (3) of the dwelling (4) of another.

Front 102

What is perjury? What is subornation of perjury?

Back 102

The willful and corrupt taking of a false oath (i.e., lying) in regard to a material matter in a judicial proceeding. The statement is material if it might affect some phase or detail of the trial, hearing, declaration, etc. Subornation of perjury: Procuring or inducing another to commit perjury.

Front 103

What is bribery?

Back 103

The corrupt payment OR receipt of anything of value in return for official action. Under modern statutes it can be a felony, and it may be extended beyond just public officials.

Front 104

What constitutional rights are binding on the states (10)

Back 104

(1) Fourth Amendment prohibition against unreasonable searches and seizures as well as the exclusionary rule; (2) self-incrimination (5th); (3) double jeopardy (5th); (4) speedy trial (6th); (5) public trial; (6) jury (6th); (7) confrontation (6th); (8) compulsory process to obtain witnesses (6th); (9) assistance of counsel; (10) cruel and unusual punishment.

Front 105

What constitutional rights are Not binding on the states?

Back 105

(1) The right to indictment by a grand jury for capital and infamous crimes. (2) It isn't clear whether the 8th Amendment prohibition against excessive bail creates a right to bail, but most state constitutions do it anyway (and prohibit excessive bail in the process).

Front 106

Generally, what's the exclusionary rule and what's its scope?

Back 106

Unconstitutionally obtained evidence is inadmissible at trial, as well as the fruits of the poisonous tree. It applies to violations of the Fourth, Fifth, and Sixth Amendment rights.

Front 107

What are five exceptions to the exclusionary rule?

Back 107

(1) Fruits from violations of Miranda, (2) evidence from a source independent of the original illegality; (3) intervening act of free will by defendant; (4) inevitable discovery; (5) violations of knock and announce.

Front 108

Can the exclusionary rule bar live witness testimony?

Back 108

It's hard to do. It's also hard to get an in-court identification on the ground of an unlawful detention barred too.

Front 109

There are five types of proceedings in which you can't invoke the exclusionary rule. What are they?

Back 109

Grand juries, civil proceedings, violations of state law, internal agency rules, and parole revocation proceedings.

Front 110

What is the good faith reliance defense to invocation of the exclusionary rule?

Back 110

It doesn't apply when the police arrest someone erroneously but in good faith thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law.

Front 111

Can you invoke the exclusionary rule for a violation of knock and announce rules?

Back 111

No. It's not a remedy for violations of the knock and announce rule

Front 112

What's the harmless error test in the context of the exclusionary rule?

Back 112

If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the government can show beyond a reasonable doubt that the error was harmless.

Front 113

How does the harmess error test in the context of the exclusionary rule in a habeas proceeding?

Back 113

If petitioner claims constitutional error, he should be released if he can show that the error had a substantial and injurious effect of influence in determining the jury's verdict; if the judge is in grave doubt as to the harm, the petition must be granted.

Front 114

Does the harmless error test ever apply to the denial of counsel?

Back 114

No. It never applies to the denial of the right to counsel at trial. This error is never harmless.

Front 115

What are the procedural rules for enforcing the exclusionary rule?

Back 115

Defendant is entitled to have the admissibility of evidence or a confession decided as a matter of law by a judge out of the jury's hearing. The government bears the burden of establishing the admissibility by a preponderance. The defendant has the right to testigy at a suppression hearing without his testimony being admitted against him at trial on the issue of guilt.

Front 116

Generally, what's the Fourth Amendment?

Back 116

People should be free from unreasonable searches and seizures.

Front 117

This is kind of simple, but how does the Fourth Amendment apply to an arrest or other detention?

Back 117

Since a governmental seizure of a person, including an arrest, is within the scope of the Fourth, the seizure must be reasonable.

Front 118

What counts as a seizure under the Fourth?

Back 118

A seizure occurs when a reasonable person would believe that he is not free to leave or terminate an encounter with the government.

Front 119

What counts as an arrest under the Fourth and what do the police have to establish?

Back 119

An arrest occurs when the police take a person into custody against her will for purposes of criminal prosecution or interrogation. The arrest has to be based on probable cause.

Front 120

What qualifies as probable cause for an arrest under the Fourth?

Back 120

It has to be based on trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime.

Front 121

Do the police need a warrant to arrest someone? If not, when do they need one?

Back 121

It's generally not required before arresting a person in a public place. But they must have a warrant to arrest someone in their home in a non-emergency setting.

Front 122

Besides arrest, what are the five other factual contexts in which the Fourth Amendment is implicated?

Back 122

(1) Investigatory detentions (stop and frisk), (2) automobile stopes, (3) detention to obtain a warrant, (4) occupants of premises, (5) station house detentions.

Front 123

What's required for the police to conduct a reasonable investigatory detention (stop and frisk)?

Back 123

It's reasonable if the police have a reasonable suspicion of criminal activity or involvement supported by articulable facts (i.e., not merely a hunch). This applies to property as well as people.

Front 124

What's the permissible duration and scope of a valid investigatory stop under the Fourth?

Back 124

The detention must be no longer than necessary to conduct a limited investigation to verify the suspicion. Police can ask the detained person to identify himself (state name) and generally may arrest the detainee for failure to comply. It morphs into an arrest if other probable cause arises.

Front 125

What's required for the police to conduct a reasonable stop of an automobile?

Back 125

Police may not stop a car unless they have at least reasonable suspicion to believe a law has been violated.

Front 126

What's a reasonable suspicion under the Fourth?

Back 126

A reasonable suspicion of criminal activity or involvement supported by articulable facts (i.e., not merely a hunch). This applies to property as well as people.

Front 127

How can police stop a lot of cars without having an individualized reasonable suspicion?

Back 127

They can set up a roadblock. But it must: (1) stop cars on the basis of some neutral, articulable standard and (2) be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.

Front 128

Who is "seized" under the Fourth amendment in an automobile stop?

Back 128

Any passenger of the car including the driver.

Front 129

Are pretextual stops reasonable under the Fourth?

Back 129

Yes. If the police reasonably believe a driver vioalted a traffic law, they may stop the car, even if their ulterior motive is to investigate whether some other law has been violated (even if that other violation has no reasonable suspicion).

Front 130

What is a reasonable detention to obtain a warrant?

Back 130

If the police have probable cause to believe that a suspect has hidden drugs in his home, they may, for a reasonable time, prevent him from going into the home unaccompanied so that they can prevent him from destroying the evidence while they obtain a search warrant.

Front 131

If the police have a valid warrant, can they detain occupants of the premises as well?

Back 131

Yes.

Front 132

What do standard do the police need to meet to reasonably bring a suspect to the station house?

Back 132

They must have full probable cause to bring them there for fingerprinting or questioning

Front 133

Is a supoena to appear at a grand jury a Fourth amendment seizure?

Back 133

No.

Front 134

Is there a Fourth amendment seizure when the police use deadly force to apprehend a suspect?

Back 134

Yes.

Front 135

When can the police use deadly force?

Back 135

They can't use deadly force unless it is reasonable to do so under the circumstances (e.g., when the suspect poses a danger to his life or the lives of others)

Front 136

[headline issue] Evidentiary search and seizure is a big topic (like search and seizure of a person). What's usually required (except in six circumstances)?

Back 136

They have to be reasonable to be valid under the Fourth Amendment. This usually requires a warrant, except in six circumstances.

Front 137

[headline issue] What are the three questions you should ask yourself when there's an evidentiary search and seizure issue?

Back 137

(1) Did the defendant have a Fourth Amendment right (i.e., there was a seizure by the government concerning a place or thing in which defendant had a reasonable expectation of privacy); (2) did the gov't have a valid warrant (issued by a neutral and detached magistrate on a showing of probable cause and reasonably precise as to the place to be searched and items to be seized; (3) if the police didn't have a warrant, did they make a valid warrantless search and seizure?

Front 138

In the context of evidentiary searches and seizures, what are the two key requirements?

Back 138

Generally, did the defendant have a Fourth Amendment right. This is to say, did the (1) government conduct the seizure and (2) was it concerning a place or thing in which the defendant had a reasonable expectation of privacy?

Front 139

What does it mean to say that only the government can violate someone's Fourth Amendment rights in an evidentiary search and seizure?

Back 139

The Fourth Amendment only requires reasonableness by government conduct (i.e., the police or other governmental agents); it does not require reasonableness by private actors—including private security guards—unless they've been deputized as officers of the public police.

Front 140

What are two things to consider when analyzing whether someone has a reasonable expectation of privacy under the Fourth Amendment?

Back 140

(1) Doe the defendant have standing and (2) whether the thing was held out to the public?

Front 141

[important] What does it mean to have standing to raise a Fourth Amendment issue w/r/t to evidentiary searches and seizures?

Back 141

A person must have his own reasonable expectation of privacy with respect to the place searched or item seized. The determination is made on the totality of the circumstances, but a person always has a legitimate expectation of privacy any time: (1) he owned or had a right to possession of the place searched; (2) the place searched was in fact his home, whether or not he owned or had a right to possession; (3) he was an overnight guest of the owner of the place searched.

Front 142

What are nine examples of things that a personal has no reasonable expectation of privacy in in Fourth Amendment issues??

Back 142

(1) the sound of one's voice; (2) handwriting; (3) paint on the outside of your car; (4) account records at a bank; (5) the location of your car on a road or its arrival at a private residence; (6) areas outside the home and related buildings (curtilage); (7) garbage; (8) land visible from plane or helicopter; (9) the smell of your luggage.

Front 143

Generally, what do the police have to do procedurally to obtain a warrant?

Back 143

Go to a magistrate. The magistrate will only issue the warrant if there's probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed. Officers must submit an affidavit setting forth the circumstances enabling the magistrate to make a determination of probable cause independent of the officers' conclusions.

Front 144

What's the rule when police use an informer's tip to obtain a warrant?

Back 144

An affidavit based on an informer's tip must meet the “totality of the circumstances” test. This means that the affidavit may be sufficient even though the reliability and credibility of the informer or his basis for knowledge are not established. The informer's identity doesn't generally need to be revealed.

Front 145

How do you invalidate a search warrant that has inaccuracies in the affidavit?

Back 145

You have to “go behind the face” of an affidavit. The warrant can be held invalid if the defendant establishes: (1) a false statement was included in the affidavit by the affiant (the officer applying for the warrant); (2) the affiant intentionally or recklessly included the false statement; AND (3) the false statement was material to the finding of probable cause.

Front 146

How hard is it to invalidate a search warrant?

Back 146

Very hard. There are three requirments, and they all have to be met.

Front 147

Can the police rely on an invalid warrant?

Back 147

Yes. If the police obtained evidence in reasonable reliance on a facially valid warrant, the evidence can be used by the prosecution despite an ultimate finding that the warrant was not supported by probable cause.

Front 148

Discuss the rule that a warrant must be precise on its face

Back 148

A warrant must be describe with reasonable precision the place to be searched and items to be seized. If it does not, the warrant is unconstitutional, even if the underlying affidavit gives that detail.

Front 149

Can the police obtain a warrant to search the premises of a third-party non-suspect?

Back 149

Sure. A warrant may be obtained to search premises belonging to nonsuspects, as long as there is probable cause to believe that evidence will be found there.

Front 150

Discuss the neutral and detached magistrate requirement w/r/t to warrants

Back 150

The magistrate who issues the warrant must be neutral and detached (e.g., the state attorney general is not neutral)

Front 151

How are police required to execute a warrant?

Back 151

Only the police can execute a warrant, and it must be executed without unreasonable delay. They must knock, announce their purpose, and wait a reasonable time for admittance (with an important exception).

Front 152

What if police don't want to wait a reasonable amount of time under the knock and announce rule?

Back 152

If the officer has a reasonable suspicion, based on the facts, that announcing would be dangerous or futile or would inhibit the investigate, then they do not have to wait a reasonable amount of time.

Front 153

Do violations of the knock and announce rule invoke the exclusionary rule?

Back 153

No, not under Hudson v. Michigan

Front 154

What evidence can police obtain when the execute a search warrant?

Back 154

They can seize any contraband or fruits of instrumentalities of crime they discover whether or not specified in the warrant.

Front 155

Can the police search the people they find on the premises when they are executing a search warrant?

Back 155

No. The police can detain occupants of the premises during a proper search, but doesn't authorize them to search persons found on the premises who were not named in the warrant.

Front 156

What are the six exceptions to the warrant requirement

Back 156

(1) Search incident to arrest, (2) the “automobile exception”, (3) plain view, (4) consent, (5) stop and frisk, (6) hot pursuit, evanescent evidence, and other emergencies.

Front 157

What is a search incident to a constitutional arrest as an exception to the warrant requirement?

Back 157

A search incident to a constitutional arrest (i.e., one based on probabe cause to believe a law has been violated and that meets other constitutional requirements), the police may search the person and areas into which he might reach to obtain weapons or destroy evidence. It has to be contemporaneous to arrest in time and place, but they can search the interior of a car after securing an occupant

Front 158

What is a protective sweep in the context of an exception to the warrant requirement?

Back 158

The police can sweep the area of an arrest if they believe that accomplices may be present.

Front 159

What are the rules about a search incident to arrest of an automobile?

Back 159

The police can conduct a constitutional search of a passenger compartment of an automobile incident to arrest only if, at the time of the search: (1) the arrestee is unsecured and still may gain access to the interior of the vehicle; or (2) the police reasonably believe that evidence of the office for which the person was arrested may be found in the vehicle.

Front 160

As an exception to the warrant requirement, what is a search incident to incarceration or impoundment?

Back 160

At the police station, the police may make an inventory search of the arrestee's belongings pursuant to established department procedure. Similarly, the police may make an inventory search of an impounded vehicle.

Front 161

As an exception to the warrant requirement, what is the automobile exception?

Back 161

If the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they can search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search. They can tow the vehicle and search it later.

Front 162

In the automobile exception to the warrant requirement, discuss the right of police to search containers in the car

Back 162

If they have probable cause to search the vehicle, then they can search the entire car and anything in it that might contain evidence. So if they are looking for illegal drugs, they can look almost anywhere. If looking for undocumented aliens, then they are more limited.

Front 163

What is the plain view doctrine as an exception to the warrant requirement

Back 163

The police can make a warrantless seizure when they: (1) are legitimately on the premises; discover evidence, frutis, or instrumentalities of crime or contraband; (3) and see the evidence in plain view; and (4) have probable cause to believe (i.e., it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of a crime.

Front 164

Explain consent as an exception to the warrant requirement

Back 164

A warrantless search is valid if the police have a voluntary and intelligent consent. Knowledge of the right to withhold consent is not a prerequisite to getting the consent. The person has to have authority to consent, which is a different card.

Front 165

Discuss the authority someone needs to consent as an exception to the warrant requirement

Back 165

Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants. However, an occupant cannot give valid consent to a search when a co-occupant is present and objects to search and the search is directed against the co-occupant.

Front 166

Explain the stop and frisk exception to the warrant requirement.

Back 166

A police officer can stop a person without probable cause for arrest if he has an articulable and reasonable suspicion of criminal activity. The officer can require the detainee to state his name, and can conduct a protective frisk if he believes the person is armed and dangerous.

Front 167

What is the scope of a stop and frisk

Back 167

It's limited to a patdown of outerclothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect's clothin. He can order the people out of a stopped vehicle to do the same.

Front 168

What is the admissibility of evidence obtained during a stop and frisk?

Back 168

During a patdown, an office can reach into the suspect's clothing and seize any item that the officer reasonably believes, based on its "plain feel" is a weapon or contraband, and such items are admissible as evidence.

Front 169

Discuss the hot pursuit/evanescent evidence exception to the warrant requirement.

Back 169

Police in a hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling. Police may also seize without a warrant evidence likely to disappear before a warrant can be obtained. Police may also enter premiss without a warrant to address emergencies that could affect health or safety.

Front 170

What do administrative inspectors need to conduct a search of private residences and commercial buildings?

Back 170

They must have a warrant, but the probable cause required is much more lenient than for other search. In addition, a showing of a general and neutral enforcement plan will justify a warrant.

Front 171

Name a few exceptions to warrant requirement for administrative inspectors

Back 171

(1) Administrative searches to seize spoiled or contaminated food; (2) businesses in highly regulated industries; (3) inventory searches of arrestees pursuant to established dept. procedure; (4) airline passengers; (5) parolees and their homes; (6) government employees' desks and file cabinets; (7) drug tests of railroad employees involved in an accident; etc...

Front 172

What do public school officials need to search students or their possessions?

Back 172

They do not need a warrant or probable cause; they need only “reasonable grounds.” It will be reasonable only if: (1) it offers a moderate chance of finding evidence of wrongdoing, (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 in light of the age and sex of the student and the nature of the infraction.

Front 173

Does the Fourth Amendment bar international searches?

Back 173

No. It does not apply to searches and seizures by United States officials in foreign countries and involving an alien, at least where the alien does not have a substantial connection to the United States. Thus, for example, the Fourth was held not to bar the use of evidence obtained in a warrantless search of an alien's home in Mexico.

Front 174

What kind of searches and seizures are permissible by the border patrol?

Back 174

No warrant is necessary. Neither citizens nor noncitizens have any Fourth Amendment rights are the border. Roving patrols inside the U.S. border may stop a vehicle for questioning of occupants if an officer “reasonably suspects” that the vehicle contains illegal aliens. Border officials may stop a vehicle at a fixed checkpoint inside the border for questioning of occupants and may disassemble the vehicle, even without reasonable suspicion.

Front 175

What can postal authorities do with international mail?

Back 175

Permissible border searches include opening of international mail when postal authorities have reasonable cause to suspect that the mail contains contraband.

Front 176

What can the immigration officials do when inspecting factories

Back 176

The Immigration Services Division may do a “factory survey” of the work force in a factory to determine citizenship of each employee. Moreoever, even illegally obtained evidence (i.e., evidence obtained in violation of the Fourth Amendment) may be used in a civil deportation hearing.

Front 177

Can the immigration officials detain someone they suspect is smuggling contraband in his stomach?

Back 177

Yes. If they have a “reasonable suspicion” that he is doing it.

Front 178

Is a wiretap a Fourth Amendment issue?

Back 178

Yes. This and other forms of electronic surveillance violate a reasonable expectation of privacy. It is a search under the Fourth Amendment

Front 179

What does it take to get a wiretap warrant?

Back 179

(1) Probable cause, (2) suspected persons involved in the conversation are named; (3) warrant describes with particularity the conversation that can be overheard; (4) wiretap is limited to a short period of time; (5) it is terminated when the desired information has been obtained; (6) return is made to th ecourt, showing what conversations have been intercepted.

Front 180

Does the Fourth Amendment bar secret taping of conversations?

Back 180

No. A speaker assumes the risk that the person to whom he is talking is an informer wired for sound or taping the conversation. A speaker has no Fourth Amendment claim if he makes no attempt to keep a conversation private.

Front 181

Are pen registers controlled by the Fourth?

Back 181

These are devices that record only phone numbers that people dial from a phone. They are not covered by the Fourth Amendment, but there's a statute requiring judicial approval.

Front 182

What is the “shocks the conscience” test for searches and seizures?

Back 182

It's actually a Due Process Clause issue. If the police obtain evidence in a way that offends peoples' sense of justice, it's inadmissible. The reasonableness of a search within a person's body is determined by balancing society's need against the magnitude of the intrusion. Blood samples are usually upheld; surgery has a high standard.

Front 183

What Amendments does a confession (or other incriminating statement) implicate?

Back 183

The Fourth, Fifth, Sixth, and Fourteenth Amendments.

Front 184

What is the voluntariness test of the Fourteenth Amendment for self-incriminating statements?

Back 184

For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances. A statement will be involuntary only if there is some official compulsion (e.g., a confession is not involuntary merely because it is a product of mental illness).

Front 185

Does the harmless error test apply to self-inciminating statements under the Fourteenth Amendment?

Back 185

Yes. If an involuntary confession is admitting into evidence, the harmless error test applies. The conviction need not be overturned if there is other overwhelming evidence of guilt.

Front 186

When does the Sixth Amendment right to counsel kick in?

Back 186

The Sixth Amendment guarantees the right to the assistance of counsel in all criminal proceedings, which include all critical stages of a prosecution after judicial proceedings have begun (e.g., formal charges have been filed). But keep in mind that he does have a Fifth Amendment Miranda right to counsel.

Front 187

What are the elevent stages of prosecution in which you have a right to counsel?

Back 187

(1) Custodial police interrogation; (2) post-indictment interrogation, whether or not custodial; (3) preliminary hearings to determine probable cause to prosecute; (4) arraignment; (5) post-charge lineups; (6) guilty plea and sentencing; (7) felony trials; (8) misdemeanor trials when imprisonment is actually imposed or a suspended jail sentence is imposed; (9) overnight recesses during trial; (10) appeals as a matter of right; (11) appeals of guilty please.

Front 188

What are the nine stages of trial where you don't have a right to counsel?

Back 188

(1) Blood sampling, (2) taking of handwriting or voice samples; (3) precharge or investigative lineups; (4) photo identifications; (5) preliminary hearings to determine probable cause to detain; (6) brief recesses during the defendant's testimony at trial; (7) discretionary appeals; (8) parole and probabtion revocation proceedings; (9) post-conviction proceedings.

Front 189

What does it mean to say that the Sixth Amendment is offense-specific?

Back 189

Even though a defendant's Sixth Amendment rights have attached regarding the charge for which he is being held, he may be questioned regarding unrelated, uncharged offenses without violating the Sixth Amendment (but it might implicate the 5th Amendment Miranda rights). They are different if each requires proof of an additional element that the other crime doesn't require.

Front 190

Can the Sixth Amendment right to counsel be waived? How?

Back 190

Yes. It must be knowing, voluntary, and intelligent. The waiver does not necessarily the presence of counselt.

Front 191

What is the remedy for violations of deprivations of counsel?

Back 191

At nontrial proceedings, the harmless error rule applies. But if defendant did not get a lawyer at trial and he was entitled to one, then it's an automatic reversal. Same thing with errorneous disqualification of lawyers

Front 192

Can a statement made in violation of the defendant's Sixth Amendment right to counsel be used againt him?

Back 192

It's not admissibile in the prosecution's case-in-chief, but it can be used to impeach the dfendant's contrary testimony at trial.

Front 193

What do the police have to do to make an admission of confession admissible at trial under the 5th Amendment privilege against self-incrimination

Back 193

If the person is in custody (this is important), the person has to get their Miranda warnings: (1) right to remain silent, (2) anything you say can be used against you, (3) right to an attorney, (4) if you can't afford and attorney, one will be appointed.

Front 194

Does the Fifth Amendment give you a right to counsel?

Back 194

No. It's really just about protecting the accused from self incrimination. If the police violate this, they didn't violate the sixth amendment, they violated the fifth amendment.

Front 195

When is the Miranda warning required?

Back 195

Anyone in the government's custody and accused of a crime must be given Miranda warnings prior to interrogation by the police

Front 196

Does Miranda apply if the accused doesn't know that he's being interrogated by a government agent?

Back 196

No. It's only necessary if the accused knows he's being interrogated by the government (i.e., jail house informants don't count)

Front 197

Does Miranda apply to an uncharged witness testifying before a grand jury?

Back 197

No--even if the witness was compelled by subpoena to be there.

Front 198

What is the custody requirement of Miranda?

Back 198

It only applies to custodial interrogations. Whether a person is in custody depends on whether the person's freedom of action is denied in a significant way based on the objective circumstances (arrest does, routine traffice stop does not)

Front 199

What is the interrogation requirement of Miranda?

Back 199

Miranda only applies to custodial interrogations. An interrogation includes any words or conduct by the police that they should know would likely elicit a response from the detainee. They aren't required for spontaneous statements by the detainee. They don't apply to routine booking questions.

Front 200

What are the detainee's options when he receives the Miranda warnings?

Back 200

(1) Do nothing, (2) waive the rights, (3) assert the right to remain silent, (4) right to consult an attorney.

Front 201

Can police continue to question the detainee if he does nothing after receiving his Miranda warnings?

Back 201

Yes. If he does nothing, the court doesn't presume waiver, but it doesn't presume an assertion of the right to remain silent or consult counse. Thus, they can continue to question.

Front 202

What does it take for the detainee to waive his Miranda rights?

Back 202

Government has to show, by preponderance of the evidence, that the waiver was knowing, voluntary, and intelligent. The court looks to the totality of the circumstances. If the government shows that he got Miranda warnings and continued to answer questions, this is probably enough.

Front 203

What must the police do if the defendant invokes his right to remain silent?

Back 203

The police must scrupulously honor the request by not badgering the detainee. They can, however, ask questions about an unrelated crime.

Front 204

What must the detainee do to invoke his right to remain silent?

Back 204

The indiciation must be explicit, unambiguous, and unequivocal.

Front 205

What must the detainee do to invoke his right to counsel?

Back 205

He has to unambiguously indicate that he wants a lawyer.

Front 206

What must the police do if the detainee invokes his right to counsel?

Back 206

All questioning must cease until counsel appears unless: (1) detainee later waives his right (by reinitiating questioning) or (2) is released from custodial interrogation and 14 days have past.

Front 207

What is the effect of a violation of Miranda?

Back 207

Evidence obtained in violation of Miranda is inadmissible. If the police don't give the warnings and the police obtain nontestimonial evidence, that evidence will be suppressed if the failure was purposeful. It's not suppressed if it's not purposeful.

Front 208

What's the public safety exception to Miranda?

Back 208

The Supreme Court allowed interrogation with Miranda warnings if it is reasonable prompted by a concern for public safety (e.g., to locate a hidden gun that could have caused injury to innocent people).

Front 209

What rights do suspects have at lineups or showups?

Back 209

Under the Sixth Amendment, the suspect has the right to counsel for any post-charge lineup or showup. He does not have the right to counsel at phot identifications or when police take physical evidence, such as handwriting examples or fingerprints from him.

Front 210

What is a due process attack on lineups or showups?

Back 210

The defendant can attach an identification as denying due process if the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification.

Front 211

Does a lineup implicate a suspect's Fifth Amendment right against compelled self-incrimination?

Back 211

No, because the lineup does not involve a compulsion to give “testimonial” evidence, the right doesn't apply. Consequently, the defendant can't refuse to participate in a lineup on this basis.

Front 212

What are two protections a suspect has in a lineup or a showup?

Back 212

The right to counsel under the Sixth amendment for post-charge lineups and a Due Process attack if the lineup is unnecessarily suggestive

Front 213

What is the remedy for a constitutional violation of the defendant's Constitutional rights at a showup or lineup?

Back 213

The remedy is exclusion of the in-court identification. However, if the witness has an independent source of identification (e.g., the opportunity to observe the suspect during the crime), the an in-court identification is permissible.

Front 214

When does a suspect get a preliminary hearing to determine probable cause to detain?

Back 214

The defendant's liberty can only be restricted on a finding of probable cause. If probable cause has already been determined because the arrest was pursuant to a warrant or grand jury indictment, then no preliminary hearing needs to be held. But if it hasn't been established, and there are significant constraints on an arrestee's libery, a preliminary hearing needs to be held within a reasonable time (usu. 48 hours). Evidence discovered as a result of the unlawful detention can be excluded under the exclusionary rule.

Front 215

What are defendant's rights with regard to pretrial detention bail?

Back 215

Most state constitutions create a right to be released on bail unless the charge is a capital one. Generally, bail can be set no higher than is necessary to assure trial appearance. Refusal to grant bail or setting excessive bail can be immediately appealed. The federal Bail Reform Act allows arrestees to be held without bail if the pose a danger or would fail to appear at trial.

Front 216

Grand juries are conducted in secret, this means that the defendant has few rights. Explain.

Back 216

The defendant has no right to notice that the grand jury is considering an indictment against him, to be present and confront witnesses at the proceeding, or to introduce evidence before the grand jury.

Front 217

What right, if any, to counsel does a witness have before a grand jury?

Back 217

A witness subpoenaed to testify before a grand jury does not have the right to receive Miranda warnings, nor is he entitled to a warning that he is a “potential defendant” when called to testify before the grand jury. Witnesses have no right to have an attorney present.

Front 218

Can a defendant exclude any evidence that might come before a grand jury?

Back 218

No. The grand jury can base its indictment on evidence that would be inadmissible at trial, and an indicted defendant may not have the indictment quashed on the ground that it is based on illegally obtained evidence.

Front 219

Can a witness challenge a grand jury's subpoena on the ground that the grand jury doesn't have Fourth Amendment probable cause?

Back 219

No. The defendant cannot challenge a subpoena on the Fourth Amendment grounds that the grand jury lacked “probable cause”--or any reason at all—to call a witness for questioning.

Front 220

Can you quash a grand jury indictment when members of a minority group have been excluded?

Back 220

Yes, a conviction resulting from an indictment issued by a grand jury from which members of a minority group have been excluded will be reversed without regard to the harmlessness of the error. In fact, that probably the only grounds for quashing a grand jury indictment that you should respond to on the MBE.

Front 221

What is the standard for whether a defendant gets a speedy trial?

Back 221

It's a totality of the circumstances standard which includes these facts: length of delay, reason for delay, whether defendant asserted his right, and prejudice to the defendant.

Front 222

What's the remedy for a violation of the defendant's right to a speedy trial?

Back 222

Dismissal with prejudice.

Front 223

When does the right to a speedy trial kick in?

Back 223

Not until the defendant has been arrested or charged. If the defendant is charged and is incarcerated in another jurisdiction, reasonable efforts must be used to obtain the presence of the defendant.

Front 224

Is it a violation of the right to a speedy trial for the prosecution to indefinitely suspend charges?

Back 224

Yes.

Front 225

What is the prosecutor's duty to disclose exculpatory evidence?

Back 225

The government has a duty to disclose material, exculpatory evidence to the defendant.

Front 226

What if the prosecutor does not disclose exculpatory evidence?

Back 226

Whether willful or inadvertent, it violates the Due Process clause and is grounds for reversal if the defendant can prove that: (1) the evidence is favorable to him because it either impeaches or is exculpatory and (2) prejudice has resulted (i.e., there is a reasonable probability that the result of the case would have been different had the evidence been disclosed at trial)

Front 227

What are the procedural rules if the criminal defendant plans on using an alibi or insanity defense?

Back 227

He must notify prosecution. If alibi is to be used, the defendant must give the prosecution a list of witnesses, and the prosecution must give defendant a list of rebuttal witnesses. Prosecutor may not comment at trial on the defendant's failure to produce a witness named as supporting the alibi.

Front 228

Generally what is incompetence to stand trial, and how is it different from insanity?

Back 228

It's not like insanity in that it's not a defense to a crime. It's a bar to trial. It's based on the defendant's mental condition at the time of trial. If the defendant later regains his competency, he can then be tried and convicted.

Front 229

What's the Due Process standard for a competency determination?

Back 229

The defendant is incompetent to stand trial if he (1) lacks a rational as well as factual understanding of the charges and proceedings, or (2) lacks sufficient present ability to consult with his lawyer with a reasonable degree of understanding. It's a preponderance standard, and clear and convincing is unconstitutional.

Front 230

What does excessive pretrial publicity require

Back 230

Change of venue or retrial

Front 231

What is the right to a public trial?

Back 231

The press and public have a first amendment right to attend the trial, even if the defense and presecution agree to close it. The state can constitutionally permit televising criminal proceedings over the defendant's objection.

Front 232

What is the right of the public to attend preliminary proceedings?

Back 232

Preliminary probable cause hearings are presumptively open to the public, as are pretrial suppression hearings. A court must make "every reasonable effort" to accommodate public attendance at jury void dire proceedings.

Front 233

Does the judge have to be law trained under the Due Process clause?

Back 233

Not for a minor misdemeanor, but probably for a serious crime.

Front 234

If the state compels the defendant to stand trial in prison clothes, does it violate his Due Process rights?

Back 234

Yes

Front 235

What are the constitutional requirements about the number of jurors and their unanimity?

Back 235

No constitutional right to a jury of 12, but there must be at least 6 jurors to satisfy the right to jury trial. The Supreme Court has upheld convictions that were less than unanimous but probably would not approve an 8-4 vote for conviction. Six-person juries must be unanimous.

Front 236

What is the defendant's right to a venire selected from a representative cross-section of the community?

Back 236

A defendant has a right to have the jury selected from a representative cross-section of the community. He need only show the underrepresentation of a distinct and numerically significant group in the venire to show his jury trial right was violated. A defendant does not have the right proportional representation of all groups on his particular jury, however.

Front 237

How do you make an equal protection-based attack on a peremptory strike?

Back 237

(1) Show facts or circumstances that raise an inference that the exclusion was based on race or gender; (2) The prosecutor must then come forward with a race-neutral explanation for the strike (even an unreasonable explanation is sufficient, as long as it is race-neutral); (3) judge then decides whether it's valid or a pretext.

Front 238

What's an important Equal Protection issue w/r/t to peremptory challenges to jurors?

Back 238

The Equal Protection Clause forbids their use to exclude potential jurors solely on account of their race or gender.

Front 239

Can the defendant ask a potential juror about his racial bias?

Back 239

Yes, whenever race is bound up in the case or he is accused of an interracial capital crime.

Front 240

When can the prosecutors exclude a juror when he expresses concerns about the death penalty?

Back 240

The state cannot automatically exclude for cause all those who express a doubt or scruple about the death penalty; it must be determined whether the juror's views would prevent or substantially impair performance ofhis duty. A death sentence imposed by a jury from which a juror was improperly excluded is subject to automatic reversal.

Front 241

Must a juror be excluded for cause if he is inclined to impose the death penalty?

Back 241

Yes. If the juror said he would automatically give the death penalty upon a guilty verdict, then he must be excluded for cause.

Front 242

Is there a constitutional violation if a party excludes a juror on a peremptory challenge after losing a motion for exclude for cause?

Back 242

No

Front 243

Under the Sixth Amendment, what does the court have to do if, during sentencing, there are additional facts that have to be proven to increase a sentence?

Back 243

If substantive law provides that a sentence may be increased beyond the statutory maximum for a crime if additional facts (other than those needed for the conviction) are proved, then proof of those facts must be submitted to the jury and proved beyond reasonable doubt. The defendant's Sixth amendment right to a jury trial are violated if the judge makes the determination.

Front 244

Can the judge decide whether sentences are to run consecutively for multiple crimes even though the decision is based on facts of the case?

Back 244

Yes.

Front 245

What are the standards of review when considering whether the defendant's right to counsel?

Back 245

Defendant has a right to counsel. Violation of this right at trial, including errorneous disqualification of the defendant's privately retained counsel, requires reversal. For nontrial denials, the harmless error test is applied.

Front 246

In considering whether the defendant's right to trial was violated, what happens if there is a nonfelony, the defendant asks for counsel, it gets denied, and he's convicted?

Back 246

The right to counsel is available in misdemeanor cases only if imprisonment is actually imposed. Thus, the answer to the question depends on whether the defendant's sentence: if he receives no imprisonment, his right has not been violated; if he receives prison time, his right has been violated.

Front 247

Does a defendant have the right to defend himself (i.e., self-representation) on appeal?

Back 247

No.

Front 248

What is the defendant's right to defend oneself?

Back 248

A defendant has a right to defend himself at trial if, in the judge's opinion, his waiver of his right to counsel is knowing and intelligent and, based on the judge's consideration of the defendant's emotional psychological state, he is competend to proceed pro se. Remember, defendant does not have a right to self-representation on appeal.

Front 249

What if it's a close call whether the defendant is indigent or not in considering whether to appoint counsel?

Back 249

The state generally provides counsel in close cases of indigence, but may then seek reimbursement from those convicted defendant who later become able to pay.

Front 250

What is the general rule about effective assistance of counsel?

Back 250

The Sixth Amendment right to counsel includes the right to effective counsel. This right extends to the first appeal. Effective assistance of counsel is generally presumed.

Front 251

What do the defendant have to establish to show ineffective assistance of counsel under the Sixth Amendment?

Back 251

(1) Deficient performance by counsel; and (2) but for the deficiency, the result of the proceeding would have been different (e.g., he wouldn't have been convicted or his sentence would have been shorter).

Front 252

What circumstances cannot be used to prove ineffective assistance of counsel under the Sixth Amendment?

Back 252

Trial tactics and failure to raise a constitutional defense that's later invalidated. The defendant has to point to specific deficiencies and cannot base the claim on inexperience, lack of time to prepare, the gravity of the charges, the complexity of defenses, or accessibility of witnesses to counsel.

Front 253

What are the rules about conflicts of interest in joint representation under the Sixth Amendment?

Back 253

Joint representation is not per se invalid. However, if an attorney advises the trial court of a resulting conflict of interest at or before trial, and the court refuses to appoint separate counsel, the defendant is entitled to automatic reversal.

Front 254

What's at least one situation in which the state has to pay for support services for defense counsel under the Sixth Amendment?

Back 254

Where a defendant has made a preliminary showing that he is likely to be able to use the insanity defense, the state must provide a psychiatrist for the preparation of the defense.

Front 255

Does the Sixth Amendment right to counsel prohibit seizure of drug money or other property to pay for counsel?

Back 255

No. Even then the defendant was going to use that money to pay for counsel.

Front 256

Does the attorney have the right to consult with his client while client is testifying under the Sixth?

Back 256

Nope. The attorney can even be sequestered away while testifying.

Front 257

Generally, what is the right to confront witnesses under the Sixth Amendment's Confrontation Clause?

Back 257

It grants the defendant the right to confront adverse witnesses in criminal prosecutions. It isn't absolute, however: face to face confrontation is not required when preventing such confrontation serves and important public purpose (e.g., protecting child witnesses from trauma). Also, a judge can remove a disruptive defendant, and a defendant may voluntarily leave the courtroom during trial.

Front 258

When can prior testimonial evidence be admitted under the Confrontation Clause of the Sixth Amendment?

Back 258

Prior testimonial evidence (statements made at prior judicial proceedings) may not be admitted unless (1) the declarant is unavailable and (2) the defendant had an opportunity to cross-examine the declarant at the time the statement was made.

Front 259

What is “testimonial” evidence for the purpose of the Sixth Amendment's Confrontation Clause?

Back 259

No comprehensive definition yet, but it includes statements from a preliminary hearing, a grand jury hearing, former trial, or police interrogation conducted to establish or prove *past* acts. It does not include statements made while the police were responding to an ongoing emergency (e.g., a 911 call).

Front 260

Are the results of forensic lab testing “testimonial” for the purposes of the Sixth Amendment's Confrontation Clause?

Back 260

Yes. Therefore, results of forensic testing cannot be admitted unless the technician who produced the test report is unavailable and the defendant had an opportunity to cross-examine.

Front 261

What kind of wrongdoing would forfeit a defendant's right to the Confrontation Clause?

Back 261

Only the kind of wrongdoing that was intended to keep a witness from testifying (e.g., a statement made to the police by a victim who was later killed by defendant cannot be admitted in defendant's murder trial absent evidence that defendant murdered the victim to keep her from testifying.)

Front 262

Discuss the burden of proof in criminal cases under the Due Process Clause.

Back 262

The Due Process Clause requires the STATE to prove guilt beyond a reasonable doubt in all criminal cases. The state CAN require the defendant to prove an affirmative defense beyond a reasonable doubt as well. Any presumption that shifts the burden to the defendant violates the Fourteenth Amendment.

Front 263

What procedural duty does taking a guilty plea put on the court?

Back 263

A judge must determine that the plea is voluntary and intelligent. The judge must address the defendant personally, in court, and on the record. Judge must ensure that defendant understand: (1) nature of the charge, including crucial elements; (2) maximum possible penalty and mandatory minimums; (3) that he has the right to not plead guilty. (An attorney can advise the elements, so long as it's on the record.)

Front 264

What is the remedy if the court does not follow the procedural requirements for a guilty plea?

Back 264

Withdrawal of the plea and a new pleading is required.

Front 265

What are the rules for collateral attacks on guilty pleas after sentencing?

Back 265

A plea can be set aside for (1) involuntariness (failure to meet standards for taking a plea); (2) lack of jurisdiction; (3) ineffective assistance of counsel; (4) failure to keep the plea bargain. A plea that's seen as an intellgient choice among a defendant's alternatives are immune from collateral attack.

Front 266

Who is bound by a plea agreement?

Back 266

It's enforced against the prosecutor and against the defendant. But it's not binding on the judge.

Front 267

Is a guilty plea involuntary just because the prosecutor threatens a more serious crime if he doesn't accept it?

Back 267

No.

Front 268

What is the collateral effect of a criminal plea agreement in a civil proceeding?

Back 268

It neither admits the legality of incriminating evidence nor does it waive any Fourth Amendment claims in a subsequent civil damages action.

Front 269

What are the criminal defendant's procedural rights during sentencing?

Back 269

Defendant has a right to counsel during sentencing. Most sentences can be based on hearsay and uncross-examined reports. But if a magnified sentence is based on a statute that requires new findings of fact, then defendant gets right to confrontation and cross-examination.

Front 270

How does the law protect a criminal defendant from a vindictive judge who imposes a harsher sentence after an appeal?

Back 270

If the defendant gets a harsher sentence after an appeal, then judge must put it on the record why the defendant is getting a harsher sentence.

Front 271

What's the general rule for the Eighth Amendment prohibition against cruel and unusual punishment?

Back 271

A penalty that is grossly disproportionate to the seriousness of the offense committed is cruel and unusual.

Front 272

What are defendant's Eighth Amendment rights w/r/t to murder convictions?

Back 272

The death penalty can only be imposed under a statutory scheme that gives the judge or jury reasonable discretion, full information concerning defendants, and guidance in making the decision. It cannot be vague, and it must let the sentencing body to consider all mitigating evidence.

Front 273

What are defendant's Eighth Amendment rights w/r/t to rape or felony murder cases?

Back 273

Eighth Amendment prohibits death penalty in cases of rape of an adult woman if it didn't result in death or wasn't intended to.

Front 274

Can you execute a prisoner who is insane at the time of execution, even if the defendant was sane at the time the crime was committed?

Back 274

No.

Front 275

Is it cruel and unusual to impose the death penalty on the mentally retarded?

Back 275

Yes.

Front 276

Does the 8th Amendment prohibit the execution of people who were under 18 at the time they committed the offense?

Back 276

Yes, even if the offense was murder.

Front 277

Does that possibility that lethal injection might be carried out improperly bar its use under the Eighth Amendment?

Back 277

No. Just because it might cause unnecessary pain does not make it cruel and unusual. It would be if the condemned can prove that there is a serious risk of inflicting unnecessary pain or that an alternative procedure is feasible, mayb e readily implemented, and in fact significantly reduces substantial risk of severe pain.

Front 278

How does the Eighth Amendment prohibit “status” crimes?

Back 278

A statute that makes it a crime to have a given “status” violates the Eighth Amendment because it punishes a mere propensity to engage in dangerous behavior.

Front 279

Under the Eighth Amendment, can the trial judge take into account a belief that defendant committed perjury while testifying on his own behalf?

Back 279

Yes.

Front 280

Is there a federal constitutional right to appeal?

Back 280

No.

Front 281

Discuss Equal Protection in the context of criminal appeals and the poor.

Back 281

If an avenue of post-conviction review is provided, conditions that make the review less accessible to the poor than to the rich violate equal protection. Therefore, indigents must be given counsel at state expense during a first appeal granted as a matter of right. However, a higher level of discretionary review is not included.

Front 282

Can the convicted collaterally attack a conviction after all appeals have run or are no longer available?

Back 282

Yes

Front 283

Generally, what is your Fifth Amendment double jeopardy right?

Back 283

A person cannot be retried for the same offense “once jeopardy has attached.”

Front 284

Under the doctrine of double jeopardy, when does “jeopardy attach”?

Back 284

Jeopardy attaches in a jury trial at the enpaneling and swearing of the jury. In bench trials, jeopardy attaches when the first witness is sworn.

Front 285

What are some exceptions permitting retrial under double jeopardy?

Back 285

(1) Hung jury, (2) when the original trial had to be stopped, (3) if the defendant successfully appeals unless the ground for reversal was insufficient evidence (but is allowed when reversal is based on the weight of the evidence), (4) defendant breaches a plea agreement.

Front 286

Generally, what is the “same offense” requirement in double jeopardy cases?

Back 286

Two crimes are the same offense unless each crime requires proof of an additional element that the other does not require, even though some of the same facts may be necessary to prove both crimes.

Front 287

How does double jeopardy work in the context of lesser included offenses?

Back 287

It comes up in double jeopardy cases. Attachment of jeopardy for a greater offense bars retrial for lesser, and vice versa.

Front 288

Does double jeopardy bar a state from bringing subsequent civil actions after trial on a criminal charge?

Back 288

Nope.

Front 289

Can separate sovereigns charge a defendant under the doctrine of double jeopardy?

Back 289

Yes. This means that both federal government and state government can charge for the same crime. (But remember that cities are members of the same state sovereign).

Front 290

Who can assert the privilege against self-incrimination?

Back 290

Only natural persons: not corporations or partnerships. It's personal so it can be asserted by a defendant, witness, or party only if the answer to the question might tend to incriminate him.

Front 291

When can one invoke the privilege against self-incrimination?

Back 291

A person can refuse to answer a question whenever his response might furnish a link in the chain of evidence needed to prosecute him.

Front 292

Do you have to invoke your privilege against self incrimination in a civil case to avoid waiving it in a criminal prosecution?

Back 292

Yes. If an individual responds to questions instead of claiming the privilege during a civil proceeding, he cannot later bar that evidence from a criminal prosecution on compelled self-incrimination grounds.

Front 293

How do you invoke the privilege against self incrimination in criminal cases?

Back 293

A criminal defendant has a right not to take the witness stand at trial and not to be asked to do so. In any other situation, the privilege does not permit a person to avoid being sworn as a witness or being asked questions. Rather, the person must listen to listen to the questions and specifically invoke the privilege rather than answer the questions.

Front 294

When does a violation of a personal privilege against self incrimination actually happen?

Back 294

Not until a person's compelled statements are actually used against him in a criminal case.

Front 295

[important] What are the two key things that the self incrimination clause protects against?

Back 295

(1) Testimonial evidence (not self incrimination basis against objects or lineups); (2) compelled testimonial evidence (anything you're being required to do, but not against things you did voluntarily).

Front 296

Can a prosecutor comment on a defendant's silence after getting Miranda warnings?

Back 296

Nope.

Front 297

Can the prosecutor comment on the defendant' silence at trial?

Back 297

Nope.

Front 298

Can the defendant get a jury instruction that they can't draw adverse inferences from the defendant's silence?

Back 298

Yes. The judge can do it sua sponte as well.

Front 299

Can the state impose penalties for a defendant's failure to testify at his own trial?

Back 299

No. This would chill the exercise of the Fifth Amendment privilege.

Front 300

What are three examples of how the privilege against self incrimination can be eliminated?

Back 300

(1) Grants of immunity (there's a separate card on this one) (2) when there's no possibility of self-incrimination (e.g., the statute of limitations has run), (3) waiver of the privilege.

Front 301

How does a grant of immunity impact a defendant's privilege against self incrimination?

Back 301

If he gets adequate immunity from prosecution, then the witness can be compelled to answer questions. It means that another sovereign cannot use it either.

Front 302

What trial rights to juveniles have in a delinquency proceeding?

Back 302

(1) Written notice of charges, (2) assistance of counsel, (3) opportunity to confront and cross-examine witnesses, (4) right not to testify, (5) right to have “guilt” established by proof beyond a reasonable doubt. There is no right to trial by jury. Pretrial detention is only allowed where the juvenile is a “serious risk” to society, and only if the detention is for a strictly limited time.

Front 303

Does double jeopardy protect those who had charges brought against them as juveniles?

Back 303

Yes.

Front 304

Generally, what are forfeiture actions?

Back 304

These are brought directly against property and are generally considered to be quasi-criminal. There are some constitutional rights for those whose interest in the property will be lost by forfeiture.

Front 305

What rights do you have when property is seized for a forfeiture proceeding?

Back 305

The owners of PERSONAL property aren't constitutionally entitled to notice and a hearing before the property is seized for the purposes of a forfeiture proceeding. But a hearing is required before a final forfeiture. For REAL property, there has to be notice and an opportunity to be heard before the seizure.

Front 306

What does the Excessive Fines Clause of the Eighth Amendment apply to?

Back 306

Applies only to fines imposed as punishment, not to civil finds. So penal forfeitures are subject the clause, but civil forfeitures aren't.

Front 307

What's the standard for Excessive Fines Clause of the Eighth Amendment?

Back 307

They have to be “grossly disproportionate” to the gravity of the offense.