Crim Flashcards
Elements of Murder
- actus reus – voluntary killing
- mens rea – malice aforethought
- causation – actual and proximate cause
- concurrence – coexistence of killing and malice aforethought
Malice aforethought can be proved by establishing one of four mental states:
- intent to kill
- intent to cause great bodily injury
- reckless indifference to an unjustifiably high risk to human life (depraved heart)
- intent to commit a felony (felony murder rule)
Two methods D can use to mitigate murder to voluntary manslaughter
- adequate provocation
2. imperfect self-defense (mistaken justification)
Attempt elements
- specific intent to commit crime
2. overt act beyond mere preparation
Larceny elements
- actus reus – trespassory taking and carrying away of personal property
- mens rea – intent to permanently deprive
- causation – actual and proximate cause
- concurrence – coexistence of taking and intent to permanently deprive
Nonlawful possession – takes $ out of cash register at end of shift
Embezzlement elements
- actus reus – fraudulent conversion of personal property
- mens rea – intent to defraud
- causation – actual and proximate cause
- concurrence – coexistence of conversion and intent to defraud
Lawful possession at the time of misappropriation (high level agents, fiduciaries, etc.) – takes $ from customer and puts it directly into pocket
False pretenses elements
- actus reus – obtaining title to property by a knowing false representation of past or present material fact
- mens rea – intent to defraud
- causation – actual and proximate cause
- concurrence – coexistence of obtaining title and intent to defraud
Thief obtains title
Larceny by trick elements
- actus reus – obtaining custody to property by a knowing false representation of past or present material fact
- mens rea – intent to defraud
- causation – actual and proximate cause
- concurrence – coexistence of obtaining custody and intent to defraud
Thief obtains possession
Exceptions to the warrant requirement
- stop and frisk
- search incident to lawful arrest
- plain view
- automobile exception
- consent
- hot pursuit
- exigent circumstances
Stop and Frisk Doctrine
If reasonable and articulable suspicion, police may
-briefly stop and question suspect AND
-frisk suspect’s outer clothing for weapons only
Police may reach into suspect’s clothing and seize an item if they reasonably believe the object is contraband based on its plain feel
5th amendment triggered by
a custodial interrogation
- custody: would a reasonable person feel free to terminate? How similar is the situation to traditional arrest?
- interrogation: behavior the police should know is reasonably likely to elicit an incriminating response
Miranda rights are:
silence, right to counsel
6th Amendment
Govt may not elicit incriminating statements from D without aid of counsel once formal charges have been filed
This is offense specific – only applies to the current charge- can be questioned about other offenses
5A or 6A is offense specific?
6A
only applies to the current charge- can be questioned about other offenses
4A Standing
D must have a reasonable expectation of privacy in the premises searched or the items seized
-must be violated to establish standing
State has jx over a crime if
- act committed in state
- result occurred in state
Solicitation and attempt ____ merge into completed crime
DOES
Conspiracy ___ merge into completed crime
DOES NOT
can be convicted of both conspiracy to commit X and X
Under MPC, D may not be convicted of ___ inchoate crime
More than one
Felonies generally punishable by
Death or imprisonment for more than one year
Elements of a crime
Almost always requires proof of -physical act (actus reus) -mental state (mens rea) -concurrence of the act and mental state (may also require proof of result and causation)
Crime element: physical act
D must have performed voluntary physical act or failed to act
Legal duty to act can arise by
- statute
- contract (ex lifeguard or nurse on duty)
- by relationship between parties (ex parent/child)
- voluntary assumption of care
- D created the peril for the victim
Defenses to specific intent crimes only
- voluntary intoxication
- unreasonable mistake of fact
Specific intent crimes
“Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts” Solicitation Conspiracy Attempt First degree premeditated murder Assault Larceny Embezzlement False pretenses Robbery Burglary Forgery
Malice crimes at common law
- murder
- arson
Intent necessary for malice crimes
Reckless disregard of obvious or high risk that particular harmful result will occur
General intent crimes do not get ______
The defenses to specific intent crimes only (voluntary intoxication, unreasonable mistake of fact)
Strict liability offenses
- no mens rea requirement
- D guilty from committing act
Consent of the victim or mistake of fact or intent are ___ the correct answer choice for strict liability question
NEVER
MPC mental states
- purposely
- knowingly
- recklessly
- negligence
Purposely, knowingly, or recklessly—subjective or objective standard?
Subjective
A person acts purposely when
their conscious object is to engage in certain conduct or cause a certain result
A person acts knowingly with respect to the nature of their conduct when
They are aware conduct is of a particular nature or certain circumstances exist
A person acts recklessly when
They consciously disregard a substantial and unjustifiable risk, gross deviation from the standard of care
A person acts negligently when
They fail to be aware of a substantial and unjustifiable risk
(objective standard)
Which of the MPC mental states uses an objective standard?
Negligence
Transferred intent
- D intended to harm different victim or object
- applies to homicide, battery, and arson
D tries to shoot A but misses and kills B. Can be charged with
Murder (B) and attempted murder (A)
transferred intent
Common law parties to a crime
- principals in the first degree (persons who engage in the act that constitutes the crime)
- principals in the second degree (persons who aid, advise, or encourage AND are present)
- accessories before the fact (persons who assisted or encouraged but were not present)
- accessories after the fact (persons who, with knowledge other committed felony, assisted them escape arrest or punishment)
Modern statutes and parties to a crime:
- principal: engages in the crime
- accomplice: aids, advises, encourages
- accessory after the fact: assists felon in escaping, etc.
Dual intent required for accomplices
Accomplice must have
1. intent to assist the principal in the commission of the crime
2. intent that the principal commit the substantive offense
IF the substantive offense requires negligence or recklessness, the accomplice must
1. intend to facilitate the commission of the crime
2. act with recklessness or negligence (whichever applies to the substantive offense)
Most courts hold that mere knowledge that a crime will result IS or IS NOT enough for accomplice liability?
IS NOT
Scope of liability for accomplices
An accomplice is responsible for the crimes they did or counseled and for any other crimes committed in the course of committing the crime contemplated to the same extent as the principal, as long as the other crimes were probable or foreseeable
Withdrawal from accomplice liability
- must repudiate encouragement
- must attempt to neutralize any assistance
- notifying police or taking other action to prevent crime also sufficient
- mere withdrawal is not sufficient
Three inchoate offenses
- conspiracy
- solicitation
- attempt
Elements of conspiracy
- agreement between 2 or more persons
- intent to enter into agreement (need not be express)
- intent to achieve UNLAWFUL objective
- overt act required by majority of states
Modern/unilateral approach to conspiracy parties
Only one party must have criminal intent
Traditional/bilateral approach to conspiracy parties
At least two parties must have criminal intent
Two “guilty minds”
Overt act for conspiracy
- not required at common law
- now, an overt act is required by most states (any little act, even mere preparation)
A conspiracy usually terminates upon
Completion of the wrongful objective
A conspirator may be held liable for crimes committed by other conspirators if the crimes
- were committed in furtherance of the objectives of the conspiracy AND
- were foreseeable
Factual impossibility ___ a defense to conspiracy
IS NOT
Withdrawal from conspiracy ____ a defense to conspiracy
IS NOT (may be a defense to crimes committed in furtherance of conspiracy) (conspirator must perform affirmative act that notifies co-conspirators of withdrawal in time for them to abandon plans)
Is there merger for conspiracy?
No, D can be convicted of conspiracy to commit X and X
Solicitation definition
Asking another person to commit a crime, with intent that the person commit it
Attempt definition
Overt act done with intent to commit a crime that falls short of completing it
Attempt always requires
Specific intent
Overt act for attempt
- act beyond mere preparation
- traditional/proximity test: dangerously close to completion
- modern/majority test: substantial step in course of conduct
Abandonment of attempt
- not a defense at common law
- defense under MPC if fully voluntary and complete
Legal impossibility ___ a defense to attempt
IS
rare
Factual impossibility ___ a defense to attempt
IS NOT
Is factual impossibility a defense to any inchoate crime?
No
Prosecution for attempt
D charged only with completed crime may be found guilty for completed crime OR attempt
D charged only with attempt may NOT be convicted of completed crime
Common law murder definition
Unlawful killing of a human being with malice aforethought
Malice aforethought requires one of the following
- intent to kill
- intent to inflict great bodily injury
- reckless indifference to an unjustifiably high risk to human life (depraved heart)
- intent to commit a felony
Intentional use of a deadly weapon authorizes a permissive inference of
Intent to kill
Deliberate and premeditated first degree murder
-D made decision to kill in cool and dispassionate manner and actually reflected on idea of killing
First degree felony murder
A killing committed during the commission of an enumerated felony
Majority rule: killing a cop when you know they are a cop and acting in the line of duty is
First degree murder
Second degree murder
- usually reckless indifference to an unjustifiably high risk to human life (depraved heart)
- anything that is not first degree
Felony murder rule
Any death, even accidental, caused during the commission of, or in an attempt to commit, a felony is murder
Common law: BARRK felonies: burglary, arson, rape, robbery, kidnapping
States have added more
Limitation on felony murder liability
- D must have committed or attempted to commit the underlying felony
- felony must be distinct from killing itself
- death must have been foreseeable
- death must have been caused before immediate flight from felony ended
Proximate cause theory in felony murder rule
Felon liable for deaths of innocent victims caused by someone other than co-felon
Minority view
Agency theory in felony murder rule
Felon liable only if killing committed by felon or agent
Majority view
Voluntary manslaughter
a killing that would be murder but for the existence of adequate provocation
adequate provocation for manslaughter
- provocation would arouse sudden and intent passion in the mind of an ordinary person
- D was in fact provoked
- not sufficient time between provocation and killing for passions of a reasonable person to cool
- D in fact did not cool off
Imperfect self-defense
Murder maybe reduced to manslaughter even though
- D was at fault in starting the altercation
- D unreasonably but honestly believed in the necessity of responding with deadly force
Involuntary manslaughter
- killing committed with criminal negligence (or recklessness under MPC) (ex driving a car) OR
- killing committed during commission of unlawful act (misdemeanor or unenumerated felony)
Abandoned and malignant heart murder at common law involves a high risk of death while involuntary manslaughter based on recklessness requires only a _____ risk.
Substantial
Causation for homicide
D’s conduct must be both the cause-in-fact (but for) and the proximate cause of the victim’s death
Rules of causation
-act that hastens an inevitable result is still the legal cause of that result
-simultaneous acts of two or more persons may be independently sufficient causes
of a single result
-victim’s preexisting weakness or fragility, even if unforeseeable, does not break the chain of causation
Year and a day rule
Death of victim must occur within a year and a day
Most states have abolished
Intervening acts
Generally, an intervening act shields the defendant from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the defendant
-a third party’s negligent medical care and the victim’s refusal of medical treatment for religious reasons are both foreseeable risks, so D would be liable
Battery
Unlaw application of force to the person of another resulting in either bodily injury or offensive touching
Battery is a ___intent crime
General
NO specific intent defenses voluntary intoxication and unreasonable mistake of fact
Aggravated battery
- battery with a deadly weapon
- battery resulting in serious bodily harm
- battery of a child, woman, or police officer
Assault
Either
1. attempt to commit battery OR
2. the intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm
If there has been actual touching of the victim, can only be battery, not assault
Aggravated assault
- use of deadly or dangerous weapon
- intent to rape, maim, murder
False imprisonment
Unlawful confinement of a person without valid consent
MPC requires that the confinement must “interfere substantially” with the victim’s liberty
Kidnapping usually involves
- some movement of the victim OR
- concealment of the victim in a secret place
Aggravated kidnapping
- ransom
- for the purpose of committing other crimes
- for offensive purposes
- child stealing
Rape
The slightest penetration is sufficient
Statutory rape definition
Carnal knowledge of a person under the age of consent Strict liability (mistake as to age not a defense)
Larceny definition
Taking and carrying away of tangible personal property of another by trespass with intent to permanently deprive
Asportation
The slightest movement of the property is enough for larceny
Larceny requires that at the time of the taking, the D
intended to permanently deprive a person of their property
Insufficient intent for larceny
- belief property is D’s
- intent to borrow property
- intent to keep property as repayment of debt
- some right to the property
There ___ be larceny were D intends to pay for the goods if the goods were not for sale or intends to collect a reward from the owner (if there is no intent to return the goods absent a reward)
MAY
Larceny can be committed with lost or mislaid property but not with
Abandoned property
Continuing trespass
D wrongly takes property without intent to permanently deprive and later decides to keep it = larceny
NOT larceny if the original taking was not wrongful
Embezzlement
Fraudulent conversion of personal property of another by person in lawful possession of that property
Must intend to defraud
If D intends to restore the exact property taken, it ___ embezzlement
IS NOT
Similar or substantially identical, not exact property = embezzlement (even if its money)
Embezzlement ____ committed if the conversion is pursuant to a claim of right to the property
IS NOT
Embezzlement reminders
- often a trustee
- only possession is required, no need to carry away
- embezzler does not have to get the benefit
False pretenses
Obtaining title to personal property of another by intentional false statement of past or existing fact with intent to defraud
Victim must be deceived by or act in reliance on misrepresentation
Larceny by trick versus false pretenses
Larceny by trick: victim gives up custody or possession of property
False pretenses: victim gives up title to property
Robbery
Taking of personal property of another from the other’s person or presence by force or threats of imminent harm with intent to permanently deprive
Robbery versus larceny
Robbery requires force or threats, larceny does not
Mugging = robbery
Pickpockets = larceny
Simulated deadly weapon ____ armed robbery
IS
Extorsion
(modern statutes)
Obtaining property by means of threats to do harm or expose information
Extorsion versus robbery
Extorsion threats may relate to future harm and the taking does not have to be in the presence of the victim
Receipt of stolen property
Receiving possession and control of stolen personal property KNOWN to have been obtained an a criminal manner by another person with intent to permanently deprive the owner
Forgery
Making or altering a writing with apparent legal significance so that it is false with intent to defraud
Burglary (common law)
Breaking and entering of dwelling of another at nighttime with intent to commit a felony in the structure
Breaking for burglary can be
Actual (NOT coming in through a wide open door on the outside, but it is if they open an interior door)
Constructive (breaking by fraud or threat)
Arson
Malicious burning of the dwelling of another
many statutes extend beyond dwellings
Intent requirements for arson
As for the malice requirement, no specific intent is required. Acting with a reckless disregard of an obvious risk that the structure would burn will suffice for arson culpability
Damage required for arson
Scorching (blackening by smoke or discoloration from heat) is not sufficient, charring is
Houseburning
The common law misdemeanor of houseburning consisted of: (1) a malicious; (2) burning; (3) of one’s own dwelling; (4) if the structure is situated either in a city or town, or so near to other houses as to create a danger to them
M’Naughten Rule (right/wrong test)
D entitled to acquittal if disease of the mind caused defect of reason such that D lacked ability to know wrongfulness of actions or understand nature and quality of actions
Irresistible impulse test (self-control test)
D entitled to acquittal if, because of mental illness, they were unable to control actions or conform conduct to the law
Durham test (New Hampshire test, products test)
D entitled to acquittal if crime was a product of mental illness
ALI/MPC test for insanity
D entitled to acquittal if D had mental disease or defect, and, as a result, lacked substantial capacity to either appreciate the criminality of their conduct or conform conduct to the law
Burdens of proof for insanity
Most states: once the issue is raised D must prove insanity by preponderance of the evidence
Other states/MPC: P has to prove D sabe beyond a reasonable doubt
Federal courts: D has to prove insanity by clear and convincing evidence
Does not guilty plea waive later use of insanity defense?
No
Voluntary intoxication
Results from intentional taking, without duress, of substance known to be intoxicating
Defense to specific intent crimes
Voluntary intoxication as a defense to first degree murder results in
Reduction to second degree murder (if successful)
Addicts and alcoholics who are intoxicated when they commit a crime are considered to be intoxicated
Voluntarily
Involuntary intoxication
Results from taking substance without knowledge of its nature, under duress, or pursuant to medical advice while unaware of intoxicating effect
Can be a defense to all crimes
Infancy as a defense (common law)
Under age 7: no criminal liability
Age 7-14: rebuttable presumption child unable to understand wrongfulness of acts
Age 14+: treated as adult
Rule for nondeadly force
- person without fault may use such force as person reasonably believes is necessary to protect themselves from imminent use of unlawful force
- no duty to retreat
Rule for deadly force
Person may use deadly force in self-defense of person
- is without fault
- is confronted with unlawful force
- reasonably believes they are threatened with imminent death or great bodily harm
Duty to retreat before using deadly force
No duty to retreat under majority view
Minority view requires retreat before using deadly force if victim can safely do so, unless
-attack occurs in victim’s home
-attack occurs while victim making a lawful arrest
-assailant in the process of robbing the victim
Aggressor in a confrontation may use force in defense of themselves only if
- they effectively withdraw and communicate their desire to do so
- victim suddenly escalates the confrontation from minor fight into deadly and no chance to withdraw
Defense of others
Right to defend others of D reasonably believes the person assisted has the legal right to use force in their own defense
Defense of a dwelling
May use nondeadly force when they reasonably believe it is necessary to prevent or terminate another’s unlawful entry into or attack upon their dwelling
May use deadly force only to prevent a violent entry and when they reasonably believe use of force is necessary to prevent personal attack on themselves or another person in the dwelling OR to prevent entry to commit a felony in the dwelling
When can deadly force be used in defense of property?
NEVER
Only reasonable, nondeadly force IF a request to desist or refrain would not suffice
Regaining possession
A person may use force to regain possession of property that they reasonably believe was wrongfully taken only if they are in immediate pursuit of the taker
Duress
Defense to crime, other than intentional homicide, that D reasonably believed another person would imminently inflict death or great bodily harm if D did not commit crime
Some states/MPC allow for threats to property, if value of property outweighs harm to society of crime
Necessity
Defense that D reasonably believed commission of crime was necessary to avoid imminent and greater injury to society
Objective test
Mistake or ignorance of fact
- relevant to criminal liability if it shows D lacked state of mind required for crime
- specific intent: mistake can be reasonable
- any other state of mind: mistake must be reasonable
Exceptions to mistake/ignorance of law is not a defense
(1) the statute proscribing their conduct was not published or made reasonably avail- able prior to the conduct; (2) there was reasonable reliance on a statute or judicial decision; or (3) in some jurisdictions, there was reasonable reliance on official interpretation or advice
Entrapment
-criminal design originated with law enforcement
-D not predisposed to commit crime
(discuss this any time there is an undercover officer, it is usually not a valid defense)
Perjury
intentional taking of a false oath in regard to a material matter in a judicial proceeding
subornation of perjury
procuring or inducing another to commit perjury
bribery
Bribery at common law was the corrupt payment or receipt of anything of value for official action. Under modern statutes, it may be extended to nonpublic officials, and either the offering of a bribe or the taking of a bribe may constitute the crime
Any exercise of control by a government agent over a person or thing is a
Seizure
Seizure definition
Reasonable person would not feel free to decline officer’s requests or terminate encounter, under the totality of the circumstances
Arrest definition
Police take person into custody against their will for prosecution or interrogation
Investigatory detention/Terry stops
Police can detain person for investigatory purposes if reasonable suspicion of criminal activity supported by articulable facts
-if reasonable suspicion that detainee is armed and dangerous may frisk for weapons (Terry frisk)
Reasonable suspicion standard
More than vague suspicion/hunch, but less than probable cause
Based on totality of circumstances
When reasonable suspicion is based on an informant’s tip, there must be an ____ to be sufficient
indicia of reliability (including predictive information)
time limits for Terry stops
police must act in diligent and reasonable manner in confirming or dispelling their suspicions
brief property seizures are valid if based on
reasonable suspicion
generally, cops can stop a car if they have at least ____ that a law has been violated
reasonable suspicion
a dog sniff during a routine traffic stop is
not a search (as long as stop not extended beyond normal time)
a dog alert during a traffic stop can form the basis for
probable cause
A police officer’s mistake of law ____ invalidate a seizure as long as the mistake was reasonable
Does not
Informational roadblocks: If special law enforcement needs are involved, roadblocks will be valid if
- cars are stopped on the basis of a neutral, articulable standard
- designed to serve purposes closely related to a particular problem pertaining to automobiles
Steps for analyzing search and seizure
- is there governmental conduct?
- is there standing? (reasonable expectation of privacy)
- is there a valid warrant?
- are there exceptions to the warrant requirement?
Governmental conduct
- police officers
- government agents
- private individuals acting at direction of police
Standing to object to 4A search/seizure
Reasonable expectation of privacy with respect to place searched or item seized
(based on totality of circumstances)
When does a person have a reasonable expectation of privacy?
- person owned or had right to possess place searched
- place searched is person’s home
- person is overnight guest of owner
- sometimes if the person owns the property seized, only if reasonable expectation of privacy of the item or the area searched
Does a person have a reasonable expectation of privacy in their cell-site location information?
Yes
Does a person generally have a reasonable expectation of privacy in in objects held out to the public, such as information in the hands of third parties?
No
Examples of things held out to the public (no right to privacy):
- sound of voice
- style of your handwriting
- paint on outside of car
- account records held by bank
- location of car on a public street or in driveway
- –gps on car is a search
- anything that can be seen across the open fields
- anything that can be seen from flying over public airspace
- odors emanating from luggage or car
- garbage set out on curb for collection
Core requirements for facially valid search warrant
- probable cause
- particularity
A warrant will be issued only if there is
probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed
Warrants: An affidavit based on an informer’s tip must meet the _____ test
“totality of the circumstances”
Under this test, the informant’s reliability and credibility or their basis for knowledge are relevant factors in making this determination
Warrants: particularity
Warrant must describe with particularity place wot be searched and items to be seized
May a warrant be anticipatory?
Yes. A warrant can predict when illegal items may be in a suspect’s home or office. The items need not be on the premises at the time the warrant is issued.
The magistrate who issues the warrant must be
neutral and detached (for example, a state attorney general is not neutral)
warrant execution
- only police may execute a warrant
- no third parties may accompany police unless identifying stolen property
- violation of the knock and announce statute will not result in suppression of evidence
A warrant to search for contraband authorizes the police to detain occupants of the premises during a search, but a search warrant does not authorize
the police to search persons found on the premises who were not named in the warrant
Exceptions to the warrant requirement
- search incident to constitutional arrest
- automobile exception
- plain view
- consent
- stop and frisk
- hot pursuit, evanescent evidence, emergency aid
Search incident to arrest
- police can search after valid arrest
- police can make a protective sweep of the area to search for accomplices
- search must b contemporaneous in time and place with arrest
- can search person and wingspan
If the arrest is unconstitutional, any search incident to that arrest is
Also unconstitutional
Police may search passenger compartment of car incident to arrest only if
- arrestee is unsecured and may still gain access to the vehicle OR
- police reasonably believe evidence of the offense for which the person was arrested may be found in the vehicle
Technological searches incident to arrest
- warrantless breath test permitted but not blood test
- physical attributes of cell phone may be searched but not data
Search incident to incarceration or impoundment
- can make inventory of arrestee’s belongings
- can make inventory search of impounded vehicle
Automobile warrant exception
If police have probable cause to believe vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the ENTIRE vehicle and any container that might reasonably contain the item
Parked in the curtilage—need a warrant
May include passenger’s belongings
if the police have probable cause only to search a container in a vehicle (for example, luggage recently placed in the trunk), they may search
only the container, not other parts of the vehicle
can the probable cause for the automobile warrant exception arise after the car is stopped?
Yes, but it must arise before anything or anybody is searched
Plain view warrant exception
Police may make a warrantless seizure when
- legitimately on the premises
- discover evidence, contraband, or fruits or instrumentalities of crime
- see evidence in plain view
- have probable cause to believe (must be IMMEDIATELY APPARENT) item is evidence, contraband, or fruits or instrumentalities of crime
Consent warrant exception
Warrantless search is valid if police have voluntary consent
if police lie about having a warrant that negates consent
Consent warrant exception: Who can consent?
- person with apparent equal right to use or occupy property
- occupant cannot give valid consent when co-occupant is present and objects
- if co-occupant objects and is removed for an unrelated reason, police may act on consent of remaining occupant
Stop and frisk warrant exception
Terry Stop
A police officer may stop a person without probable cause for arrest if they have an articulable and reasonable suspicion of criminal activity. The officer may require the detainee to state their name, and if the officer also reasonably believes that the person may be armed and presently dangerous, the officer may conduct a protective frisk.
Stop and frisk warrant exception- scope of the frisk
Generally limited to patdown of outer clothing, unless officer has specific information that a weapon is hiding in a particular area of the suspect’s clothing
Terry frisk-what may be seized?
Officer may seize any item that officer reasonably believes, based on plain feel, is a weapon or contraband
Manipulated counts as plain feel?
No
Stop and frisk: automobile stops
If officer believes driver or passenger may be armed and dangerous, officer may
- frisk suspected person
- search vehicle in areas where weapon may be placed
Evanescent evidence
Evidence that might disappear quickly if police took the time to get a warrant
Police in hot pursuit of a fleeing felon may
Make a warrantless search and seizure and may pursue suspect into private dwelling
Rule of thumb: If the police are not within 15 minutes behind the fleeing felon, it is not a hot pursuit that falls under the exception
Emergency aid/community caretaker exception
Police may enter premises without warrant if officer faces emergency that threatens health or safety
Administrative searches: exceptions permitting warrantless searches
- airline passengers
- drug tests of schoolchildren involved in extracurricular activities
Public school searches
reasonable grounds necessary
search reasonable if
-offers moderate chance of finding evidence of wrongdoing
-measures reasonably related to search objectives
-search is not excessively intrusive in light of the age and sex of the student and the nature of the infraction
Wiretapping and eavesdropping
-is a search under 4A, so requires a warrant
Unreliable ear
Speaker assumes risk other person consents to government monitoring or is an informer
Uninvited ear
Speaker has no 4A claim if they make no attempt to keep conversation private
Evidence obtained in a manner that shocks the conscience— in other words, a manner that offends a “sense of justice”—is
inadmissible under the Due Process Clause
For a self-incriminating statement to be admissible under the Due Process Clause, it must be _____, as determined by the totality of the circumstances
Voluntary
Harmless error test for involuntary confessions
Conviction need not be overturned if overwhelming evidence of guilt
6A right to counsel applies to
All critical stages of prosecution after judicial proceedings have begun
6A prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after
the defendant has been charged unless the defendant has waived their right to counsel
Can there be a violation of the 6A right to counsel before formal proceedings have begun?
No
Arrested, but not charged = 5A right to counsel under Miranda
Stages when 6A right to counsel applies (specific ones)
- post-indictment interrogation
- preliminary hearings to determine probable cause to prosecute
- arraignment
- POST-charge lineups
- guilty plea and sentencing
- felony trials
- misdemeanor trials when imprisonment actually imposed
- overnight recesses during trial
- appeals as a matter of right
- appeals of guilty pleas
Stages when NO 6A right to counsel
- blood sampling
- taking of handwriting or voice exemplars
- precharge or investigative lineups
- photo identifications
- preliminary hearings to determine probable cause to detain
- brief recesses during D’s testimony at trial
- discretionary appeals
- parole and probation revocation hearings
- post-conviction proceedings
6A right to counsel is offense specific
D may be questioned regarding unrelated, uncharged offenses without violating 6A
Waiver of 6A right to counsel must be
Knowing and voluntary
Remedy for 6A right to counsel violations
Nontrial proceedings: harmless error rule applies
Trial: failure to provide counsel results in automatic reversal of conviction
Admissibility of statements obtained in violation of 6A right to counsel
not admissible in the prosecution’s case-in-chief, may be used to impeach the defendant’s contrary trial testimony
Miranda warnings (5A)
required when person in custodial interrogation
Must be told
-right to remain silent
-anything said can be used against them in court
-right to attorney
-if person cannot afford an attorney, one will be appointed
Warnings need not be verbatim if substance is there
Miranda warnings and governmental conduct
-miranda warnings necessary only if detainee knows they are being interrogated by government agent
Miranda requirements ____ apply to an uncharged witness testifying before a grand jury, even if subpoenaed to be there
Do not
Two step process for determining custody (Miranda)
- whether a reasonable person under the circumstances would feel free to terminate interrogation and leave (under totality of circumstances)
- whether environment presents the same inherently coercive pressures as station house questioning
Interrogation requirement (Miranda)
Interrogation: any words or conduct by police that they should know would likely elicit an incriminating response (does not include routine booking questions)
Miranda warnings not required before spontaneous statements
Waiver of Miranda rights must be
Knowing and voluntary
If detainee is silent after Miranda warnings
- court will not presume waiver OR invocation of right to remain silent
- police can continue to question
Invocation of right to remain silent under Miranda
- must be unambiguous
- once invoked, police must scrupulously honor request by not badgering detainee
- can probably requestion about a different crime after a break, if fresh warnings are administered
Invocation of right to counsel under Miranda
- must be unambiguous
- all questions must cease until counsel has been provided unless detainee waives right to counsel OR is released back to normal life and 14 days have passed since release
Effect of a Miranda violation
- evidence generally inadmissible
- statements may be used to impeach D’s trial testimony, but not used as evidence of guilt
- detainee gives police information that leads to nontestimonial evidence = evidence suppressed if failure to give Miranda warnings was purposeful, but likely admitted if failure not purposeful
Public safety exception to Miranda
Police can interrogate without Miranda warnings when reasonably prompted by concern for public safety
Pretrial identification and 6A
- 6A right to counsel at post-charge lineup
- no right to counsel at photo identifications
D can attack identification if it is
unnecessarily suggestive and there is substantial likelihood of misidentification
remedy for unconstitutional identification
exclusion
independent source exception to exclusion of unconstitutional identification
A witness may make an in-court identification despite the existence of an unconstitutional pretrial identification if the in-court identification has an independent source
Exclusionary rule
Unconstitutionally obtained evidence excluded at trial
Fruit of the poisonous tree
Evidence obtained from exploitation of unconstitutionally obtained evidence
(also excluded)
Exceptions to fruit of the poisonous tree doctrine
- fruits derived from statements obtained in violation of Miranda
- evidence obtained from independent source
- attenuation: causal link between police misconduct and evidence is broken
- D’s intervening act of free will
- inevitable discovery
- violations of knock and announce rule
Three Ins that make evidence admissible
- independent source
- intervening act of free will
- inevitable discovery
A defendant ___ exclude a witness’s in-court identification on the ground that it is the fruit of an unlawful detention
May not
When is the exclusionary rule inapplicable?
- The exclusionary rule is inapplicable to grand juries unless evidence was obtained in violation of the federal wiretapping statute
- parole revocation hearings
- civil proceedings
- where evidence was obtained contrary ONLY to state law or agency rules
- police arrest someone erroneously but in good faith thinking they are acting pursuant to a alid search warrant, arrest warrant, or law
Four exceptions to good faith reliance on defective warrant
- affidavit is so lacking in probable cause no reasonable officer would rely on it
- affidavit is so lacking in particularity no reasonable officer would rely on it
- police officer or prosecutor lied to or misled the magistrate when seeking the warrant
- magistrate is biased and therefore wholly abandoned neutrality
Use of excluded evidence for impeachment purposes
-voluntary confession taken in violation of Miranda admissible for impeachment of D
Harmless error test
If illegal evidence was admitted, conviction should be overturned on appeal unless govt can show beyond a reasonable doubt that the error was harmless
If probable cause has not already been determined and there are significant constraints on an arrestee’s liberty (for example, jail or bail, but not release on recognizance), a preliminary hearing to determine probable cause must be held
within a reasonable time (for example, 48 hours)
grand jury proceedings
- conducted in secret
- D has no right to notice
- no right to counsel
- no right to have evidence excluded
- no right to challenge subpoena on 4A grounds
- conviction from indictment issued by grand jury from which minority group excluded will be reversed
6A speedy trial factors
- length of delay
- reason for delay
- whether D asserted right
- prejudice to D
Remedy for speedy trial violation
Dismissal with prejudice
Right to speedy trial does not attach until
Arrest or charge
Prosecutorial duty to disclose: Failure to disclose material exculpatory evidence (whether willful or inadvertent) is grounds for reversing conviction if
- evidence is favorable to D AND
- prejudice has resulted
Insanity is a defense to a criminal charge
- based on the defendant’s mental condition at the time they committed the charged crime
- A defendant acquitted by reason of insanity may NOT be retried and convicted, although they may be hospitalized under some circumstances
incompetency to stand trial
not a defense to the charge, but rather is a bar to trial. It is based on the defendant’s mental condition at the time of trial. If the defendant later regains competency, they can then be tried and convicted
Due process is violated of judge
Has actual malice against D or financial interest in trial result
Right to trial by jury only for
Serious offenses (imprisonment for more than 6 months is authorized)
Number of jurors constitutionally required
6, must be unanimous verdict
D has right to ___ selected from representative cross-section of community
Venire, but not their particular jury
Peremptory challenges
Generally may use peremptory challenge for any reason
Cannot challenge jurors solely on basis of race or gender
Challenges to juror for cause
Juror should be excluded for cause if juror’s views would prevent or substantially impair performance of duties
A defendant is entitled to questioning on voir dire specifically directed to racial prejudice whenever
race is bound up in the case or the defendant is accused of an interracial capital crime
D may waive right to counsel if
- waiver is knowing and intelligent
- D is competent to proceed pro se
Effective assistance of counsel
- included in 6A right of counsel
- right extends to the first appeal
- generally presumed
Ineffective assistance of counsel
- deficient performance by counsel
- but for the deficiency, result of proceeding would have been different
- D must point out specific deficiencies
If two persons are tried together and one has given a confession that implicates the other, the right of confrontation
prohibits use of that statement, even where the confession interlocks with the defendant’s own confession, which is admitted
confrontation clause: Co-defendant’s confession may be admitted if
- all portions referring to other D can be eliminated
- confessing D takes the stand and is subject to cross, OR
- confession used to rebut D’s claim that confession was obtained coercively
Confrontation clause: Prior testimonial evidence not admitted unless
- declarant unavailable
- D had opportunity to cross declarant at time statement was made
Burdens of proof
- state must prove guilt beyond a reasonable doubt
- burden may be on D to prove affirmative defenses
- presumption that shifts burden of proof to D violates 14A
Guilty plea must be
Voluntary and intelligent
Must address D personally in open court on the record
(understands nature of the charge, elements, max/mandatory min penalty, waive right to trial, etc)
Remedy for failing to meet the standard of taking a plea
Withdrawal and pleading anew
Reasons to set aside plea
- involuntariness
- lack of jx
- ineffective assistance of counsel
- failure to keep plea bargain
Plea bargain enforced against prosecutor and D, but not against
Judge, who does not have to accept the plea
Death penalty
Must be imposed under statutory scheme that gives jury reasonable discretion, full information, and guidance
No death penalty for
- rape
- cannot execute prisoner who is insane at time of execution
- person who is intellectually disabled
- minor at the time of offense
Is there a federal constitutional right to appeal?
No
Habeas corpus proceeding
-no right to appointed counsel
-petitioner has burden of proof to show unlawful detention by preponderance of the evidence
(technically a civil proceeding)
Right to counsel at parole and probation revocation hearing
If revocation of probation also involves imposition of a new sentence, the defendant is entitled to representation by counsel in all cases in which they are entitled to counsel
at trial. If, after probation revocation, an already imposed sentence of imprisonment springs into application, or if the case involves parole revocation, the right to counsel is avail- able only if representation is necessary to a fair hearing
Prison regulations impinge on due process rights only if the regulations impose
“atypical and significant hardship” in relation to the ordinary incidents of prison life
Is there 4A protection in prison cells?
No
A person may not be retried for the same offense once
Jeopardy attaches
When jeopardy attaches
- jury trial: empaneling and swearing of jury
- bench trial: when first witness is sworn
Exceptions to double jeopardy clause permitting retrial
- first trial ends in a hung jury
- manifest necessity to abort first trial (ex medical emergency)
- D successfully appealed conviction (unless ground for reversal was insufficient evidence, cannot retry for a greater offense)
- D breaches plea bargain
- D could have been tried for multiple charges in a single trial, but D elects to have offenses tried separately
Two crimes are the same offense for double jeopardy unless
Each crime requires proof of additional element that the other does not
Lesser included offenses and DJ
- attachment of jeopardy for a greater offense bars retrial for lesser included offense
- attachment of jeopardy for lesser included offense bars retrial for greater offense
New evidence exception to DJ
An exception to the double jeopardy bar exists if unlawful conduct that is subsequently used to prove the greater offense (1) has not occurred at the time of prosecution for the lesser offense or (2) has not been discovered despite due diligence. Similarly, a retrial for murder is permitted if the victim dies after attachment of jeopardy for battery
Prohibition against DJ does not apply to trials by separate sovereigns
- state and federal govt = separate sovereigns
- 2 states = separate sovereigns
- state and its municipalities = same sovereign
5A privilege against self-incrimination can be asserted by
Any natural person in any type of case when answer to question might tend to incriminate them
5A privilege against self-incrimination: if an individual responds to questions instead of claiming the privilege during a civil proceeding, they _____ later bar that evidence from a criminal prosecution on compelled self-incrimination grounds
CANNOT
Does being required to give one’s name after Terry stop violate 5A privilege against self-incrimination?
No
Scope of 5A privilege against self-incrimination protection
- testimonial or communicative evidence, and not real or physical evidence
- must relate a factual assertion or disclose information
- NOT blood, handwriting, voice, hair, DNA after arrest for serious crime
- NOT production of documents or seizure of documents
When does a 5A self-incrimination clause violation occur?
A violation of the Self-Incrimination Clause does not occur until a person’s compelled statements are used against them in a criminal case
Comments on D’s silence
-prosecutor may not comment on D’s silence after receiving Miranda warnings or at trial
(can be used if silence before Miranda warnings)
-prosecutor can comment on D’s failure to take stand when in response to D’s assertion that D was not allowed to explain story
What test applies if prosecutor improperly comments on D’s silence?
Harmless error
A witness ____ be compelled to answer questions if granted adequate immunity from prosecution.
MAY
Use and derivative use immunity
Guarantees that a witness’s testimony and evidence located by means of the testimony will not be used against the witness
(can still be prosecuted if P shows that the source was independent of the immunized testimony)
Use of immunized statements
- cannot be used for impeachment of D’s testimony at trial
- may be used in a trial for perjury
- use by another sovereign prohibited
A person has no privilege against compelled self-incrimination if there is no possibility of
incrimination (for example, statute of limitations has run)
waiver of privilege
D waives by taking witness stand
Witness waives by disclosing incriminating information
Is there a right to trial by jury for delinquency proceedings?
No
8A and fines
The Supreme Court has held that the Excessive Fines Clause of the Eighth Amendment applies only to fines imposed as punishment; it does not apply to civil fines. Thus, penal forfeitures are subject to the Clause, but civil forfeitures are not.
5A right to counsel applies ___ formal charges
BEFORE
6A right to counsel applies ____ formal charges and is ____
AFTER
OFFENSE SPECIFIC
