crim Flashcards
Common law
murder
common law definition: the killing of another human being with malice aforethought
murders committed with 1) evil intent (malice) and 2) premeditation (aforethought)
4 ways to commit murder / have malice aforethought
1. intent to kill- premeditated / specific intent
2. intent to inflict serious bodily injury - no specific intent to kill, but they die.
3. felony murder - feath occurs while committing dangerous felony BAARK
4. depraved heart murder - reckless disregard for human life
two types of homicide
- murder
- manslaughter
6 homicides
1. intent to kill- premeditated / specific intent
2. intent to inflict serious bodily injury - no specific intent to kill, but they die.
3. felony murder - death occurs while committing dangerous felony BAARK
4. depraved heart murder - reckless disregard for human life
5. voluntary manslaughter - provoked + heat of passion
6. involuntary - negligent conduct causing death
difference between depraved heart and involuntary manslaughter
depraved heart = reckless; people present; an extreme indifference to human life
involuntary manslaughter: negligent; no people present; wanton and reckless disregard for human life
homicide
there is a dead body. you are either being tested on murder or manslaughter, not both.
will transfered intent satisfy the intent element of first degree murder?
yes
So, if you try to kill someone by shooting them and kill someone else, you’ll be liable for murder of the person you actually shot and attempted murder of the original victim you tried to shoot.
first degree murder, what must a prosecutor prove?
1. intent to kill - using a deadly weapon satisfies this
2. a cool mind - no rage, fear, or passion
3. premeditation - you thought about this shit. no premeditatoin time limit, you can premeditate in one second. the courts will look at whether you had motive.
second degree murder
anything that isn’t first degree
capital murder
a killing which is punishable by the death penalty
So essentially, killing with aggravating factors (they have capital punishment i.e. the death penalty in 27 states).
Sometimes people will be charged with capital murder for killing a police officer, or killing someone while in a jail, or especially brutal or fucked up murders like torture murders or those involving vulnerable victims.
voluntary manslaughter elements
This is an intentional killing committed in the heat of passion.
1. passion - the courts will look at whether you were furious, upset, enraged at the time of the killing.
2. provocation - words alone usually not enough; real shit needs to go down.
3. no cool down time - there can be no chill period between the time you lose control and the time you commit the murder.
depraved heart murder
A murder committed with recklessness rather than intent.
NOT MANSLAUGHTER.
Mens rea of recklessness rather than intent.
people around
Defense of voluntary intoxication can only reduce a first degree murder down to a depraved heart murder
an extreme indifference to the value of human life
imperfect self defense
When you believe it is necessary to kill someone and use deadly force (even if this is based on you being shitfaced), but it is not objectively reasonable in the real world, then you can raise imperfect self-defense to try and lower your charge from first degree murder to voluntary manslaughter.
intentional killings
- first degree murder
- voluntary manslaughter
unintentional killings
- depraved heart murder
- involuntary mansalughter
- felony murder
involuntary manslaughter
in the form of negligent homicide is just simply you being a fucking idiot i.e. texting while driving on the highway, leaving your kid in a hot car or not feeding them, falling asleep in a car.
Involuntary manslaughter is simple and we are just looking for unintentional killings caused through simple negligence, not extreme recklessness (they will make it clear on the test whether the person was being simply negligent or extremely reckless).
if someone has a legal duty to act and they do not act and this results in death, the most they can be charged with is _______
involuntary manslaughter
Ex. hit and run
You have a legal duty to render assistance after you hit someone.
If you do not, this will result in an involuntary manslaughter charge.
Ex. parents have a duty to their child
Leaving them in a hot car will result in involuntary manslaughter charges.
child dying from malnutrition - you had a duty to feed them.
if they ask you what instruction the lawyer will argue….
the answer will alwys be involuntary manslaughter rather than depraved heart
Sometimes this comes up when someone kills someone when they are drunk driving. It may be either one depending on the facts… but the lawyer will argue for the lesser offense which is involuntary manslaughter.
felony murder
Sometimes you are in the process of committing an inherently dangerous felony. In order to be found guilty of felony murder you must kill someone (even accidentally) while in the process of a motha-fucking BARRK felony
treated as first degree murder when it is charged.
the prosecution must actually prove you committed the underlying offense
the killing itself must take place during the actual felony or during flight IMMEDIATELY after the felony
it is still felony murder even if the person was going to die anyway from their heart defect - you take the plaintiff as you find them.
BARRK felonies
B - Burglary
A - Arson
R - Rape
R - Robbery
K - Kidnapping
can you be liable for the death of a co-felon (felony murder)
NOOOOOO
What happens if you are BARRKing around and your co-felon gets killed?
If the police kill the co-felon, or a potential victim kills the co-felon, are you liable for felony murder for the loss of his or her life?
The co-felon agreed to participate in the crime, so their death is not a separate charge and will NOT trigger felony murder.
You can only charge it to the game, because when you get involved in BARRK felonies, that’s just how it goes my goats.
what if a victim or police officer kills an innocent party on accident during a BAARK felony? are you liable?
Maybe.
There are two different approaches
- In jurisdictions which follow the proximate cause rule: you will be guilty if an innocent party kills another innocent party on accident in the course of your BARRK felony because you set the killing into motion.
- In jurisdictions which follow the agency rule: you will NOT be guilty of felony murder because the police and bystanders were not agents of your felony or helping you in anyway.
what happens if you aren’t BAARKing but simply doing some hoodrat shit with your friends and accidentally kill someone?
you will be charged with involuntary manslaughter via the misdemeanor manslaughter doctrine
whenever the problem on the MBE mentions a MISDEMEANOR… the answer will be involuntary MANSLAUGHTER. That will be the MOST serious murder that a person can be charged with.
what four scenarios can you be charged with involuntary manslaughter?
- Criminal negligence
- Intent to inflict slight injury
- Misdemeanor manslaughter; or
- Failure to act.
causation
You obviously need but for and proximate causation to be found guilty of any murder
If you slap someone, but they die later on due to an unknown brain aneurysm for example, that will not be proper causation for murder.
larceny elements
- trespassory taking / carrying away
- personal property of another
- with intent to permanently deprive
larceny and abandoned property?
you can’t be guilty of larceny of abandoned property because you weren’t depriving a person unless you knew or could find out the owners identity.
what happens if you take something that you believe is yours?
this is NOT larceny as you are not intending to deprive anyone of it.
continuing trespass
what if someone doesn’t actually intend to permanently deprive someone of something at the time they take it… but then develops the intent later on?
turns into larceny if you decide to keep it
can you send an agent to commit larceny for you?
What if you had an innocent 12 year old go steal some shit from your neighbor’s house because you tell her it is rightfully yours? Like you convince a young kid to go do some crazy shit for you.
This is still larceny.
If you take something with the intent to permanently deprive, then you start crying and give it back…
it doesn’t matter. You still intended to permanently deprive them at the time of taking… and it is STILL larceny.
how do you know if it’s an embezzlement question?
if they start talking about an accounting steeling some shit or a trustee.
embezzlement elements
- lawful physical possession of personal property
- converted for own use
defense: when you think it is yours
What happens if you embezzle funds from someone… but actually increase the amount of money they had?
Sometimes you are in control of someone else’s money and you… need it for certain stuff for a small period of time.
What happens if you win the bet with the embezzled funds?
It doesn’t matter if you return the money, you still embezzled that shit.
Guilty of embezzlement.
embezzlement amount
The amount of money you will be charged for will be the value of the property at the time you actually embezzled it.
If I am watching over stocks for some type of private equity fund and I convert the stocks into my own TD Ameritrade account when they are worth $120,000…. it doesn’t matter that later on they became worth $5,000,000… I will only be liable for embezzling $120,000.
difference between larceny and embezzlement
with embezzlement you had lawful possession of the property at one point. With larceny, you never did. Easy money.
employee taking things
MINOR EMPLOYEE = NO LAWFUL POSSESSION (larceny)
HIGH LEVEL EMPLOYEE = LAWFUL POSSESSION (embezzlement)
larceny by trick
lying to someone to get physical possession of their shit
- obtain possession to property by false statement
use as default crime before false pretenses or embezzlement.
Let’s say you rent a car and tell Enterprise “haha yea I’ll have this back in no time”
Two days later you’re taking this thing out of the country.
You tricked Enterprise and gained physical possession of the car through a false statement of material fact.
false pretenses
using false statements of material fact to get physical possession AND legal title over someone else’s property
you don’t just trick someone into giving you the shit, you trick them into giving you the title and legal ownership of the shit.
it’s like larceny by trick PLUS getting the ACTUAL TITLE of the shit.
defense to false pretenses
claim of right
Let’s say your broke ass friend owes you $5,000
You know damn well they have a secret safe with a bunch of money in it
So you call them up and pretend to offer them a free vacation on the weekend of Thanksgiving
They say “I can’t, I’ll be out of town that week!”
You now know they will be out of town, so you go in their house and take the $5,000 they owed you under a CLAIM OF RIGHT!!!
This is a defense to false pretenses my friends.
Basically, you can be sneaky as fuck to try and collect a debt and it will not be false pretenses.
extortion
Extortion is obtaining property through a spoken or written threat to do future harm to someone
This is different from robbery, which we will talk about below, because with extortion you don’t have to actually take something from someone’s presence. With robbery you do.
With extortion, you can take something from afar (Senegal).
Extortion is also all about threatening future harm rather than immediate harm like we see in robbery.
receiving stolen property
Sometimes people steal our shit and run off with it.
And before we can get it back, they give it to another motherfucker.
A goat will be guilty of receiving stolen property if they receive the personal property of another KNOWING it is STOLEN.
- defendant receives stolen property
- a thief actually steals the property from its true owner
- defendant knows the property is stolen.
- defendant intends to permanently deprive the owner of the property
- no cops involved
YOU CAN HAVE EITHER ACTUAL OR CONSTRUCTIVE KNOWLEDGE THIS SHIT IS STOLEN
IF SOMEONE TELLS YOU IT IS STOLEN = THIS IS ACTUAL KNOWLEDGE
If you have a strong hunch it’s stolen, you have constructive knowledge it is stolen.
robbery
- trespassory taking
- carrying away
- property of another
- by force, intimidation, or fear
force - Any amount of force will do which is GREATER than what you need to take or carry away the property. The force just must occur during the actual taking or the “getting away”
fear - the threat of imminent harm
attempt
You rob this guy who is both drunk and high on meth
But he is so utterly shitfaced that he does not feel fear and he does not think force is even being used against him. He just totally misinterprets what is going on.
You can still be found liable for attempted robbery in this instance.
However, if the person is 100% asleep… you cannot be guilty of robbery since no fear or intimidation is used.
Anytime attempt is at issue, the MBE will tell you exactly what they are trying to attempt to do
One important trick to remember is that sometimes they will try to convince you that someone tried to murder someone when they just tried to batter the fuck out of them.
The problem will be like “Jimmy smashed a frying pan into jeans face on the slope of Mount Everest, intending to wake him up, and he fell down the mountain and broke his back.”
Well… this is just a battery technically. Unless it says he attempted to murder Jimmy in the MBE problem, it won’t be attempted murder. Even if it really looks like it.
common law burglary
breaking into a place where people sleep at night with intent to commit a felony therein.
MPC burglary
breaking and entering into any protected structure at any time of day with the intent to commit a felony therein.
breaking down elements of burglary
1. breaking- you need to break or enlarge an opening. can also constructively break by entering via fraud or force.
2. entering - any small part of your body, even your pinky finger. can also be an extension of your body, like a stick you are holding.
- dwelling (common law) - where people live
- night time (common law)
5. intent to commit a felony therein - The felony doesn’t need to be successful, so long as you break and enter with the intent to hecking commit it, that’s enough.
battery
unlawful application of force; one that would offend a reasonable person.
defenses to battery
consent
self defense
preventing a crime from being committed
assault
- failed battery or
- scaring people
words + a menacing action - a threat to commit an immediate battery.
aggravated assault
assault with an aggravating factor (intent to rape, intent to main, intent to kill, or assualt on an elderly or child victim)
specific intent crime
aggravated assault and attempted murder do not merge.
So if you fire a gun and it misfires for example, you can be charged with both aggravated assault and attempted murder.
rape
If the intercourse is any of these, the defendant will be liable for rape.
1) forcible or
2) while the victim is asleep or unconscious or
3) upon a victim who cannot give consent or
4) by means of deception
statutory rape
Sexual intercourse between an adult and a minor who has not reached the age of consent.
No defense of consent or mistake is allowed for statutory rape.
Strict liability.
kidnapping common law
- make a victim move somewhere (asportation) or
- conceal them in a secret space
kidnapping MPC
- move the victim a SUBSTANTIAL distance from where they are found; or
- confine the victim for a SUBSTANTIAL period of time in a secret place
arson common law
malicious burning of the dwelling of another.
have to act with intent or reckless disregard.
another person besides you needs to live there (not be there, but live there)
can’t commit arson if you burn a car as it’s not a dwelling.
arson common trend
It does not have to be a dwelling anymore. It can just be any old building.
Also, you can be guilty if you burn your own building and you are the only one that lives there (I’m looking at you, insurance scammers).
One final note: If you accidentally start a fire, then just don’t put it out because you want the building to burn… YOU’RE STILL GUILTY
common law rape
- unlawful sexual intercourse
- by a male with a female
- without consent
possession offenses
possession simply means having control for a long enough time to actually terminate possession
constructive possession
This is basically when the contraband (the gun, the drug, the furry outfit) is not in your actual possession, but it is close enough for you to exercise control over it.
For constructive possession they need to prove that you were aware of the item’s existence or took steps to AVOID knowing about it.
When ostriches get scared they bury their heads in the ground because they think no one can see them. You can’t just do this when they accuse you of knowing about the drugs or gun in the back of your car.
Prosecutors must establish both KNOWLEDGE and CONTROL
YOU KNEW ABOUT THE DRUGS IN THE TRUNK OF YOUR CAR
AND YOU COULD CONTROL THEM.
They can argue you had possession even if you weren’t physically touching or holding them.
Just being near the contraband is not enough for constructive possession, you need KNOWLEDGE.
forgery
- falsifying a document of legal significance
- with the intent to defraud
inchoate crimes
crimes that are committed before (or are a substantial step towards) the main offense
attempt elements
specific intent to do something combined with behavior which gets you close to doing it.
- the defendant specifically intended to commit the crime
- took a substantial step beyond mere preparation to commit the crime.
common law attempt
dangerous proximity test
It means you must have completed every fucking step of the crime but get stopped short before it is completed.
You need to complete the final step before the actual crime to be found guilty under the dangerous proximity test.
Ex. mixed the poison and took it to your friends house and put it in his drink, but then he ends up not drinking it.
You arrived AT the actual place of the crime WITH the necessary tools to commit the crime.
MPC attempt
substantial step test
You must take a substantial step towards commission of the crime.
Doesn’t have to be the final step, but it definitely has to indicate that this motherfucker was trying to commit the crime
Following someone you are trying to attack
Lying in wait in someone’s grandma’s house, even if they don’t show up.
Putting an explosive device in a car but not detonating it.
mindset needed for attempt
you actually have to intend that the underlying offense be committed.
So if the problem says “Jimmy pretended like he was going to hit Becky with his car, intending to scare her, and she fell backwards on the pavement and died” … what is the most serious crime of which Jimmy can be convicted?
No, it is not attempted murder.
He was trying to assault Becky, not murder her.
Another example: Let’s say a man is infected with HIV. He has sex with a woman, she contracts HIV and dies.
He cannot be charged with “attempted murder” because he was not attempting to murder her, he just wanted to have sex.
He wasn’t sure she would get it. But most importantly, his mens rea was not proper to be convicted of attempted murder
transferred intent
If Goat shoots at Rainbow Brown, intending to kill him, but only grazes Rainbow and the bullet flies past him and hits Kevin Tipcorn… he can be charged with attempted murder of Rainbow and murder of Kevin.
Even though he didn’t intend to kill Kevin, the intent from the attempted murder can be transferred to the murder itself.
Please remember transferred intent, because there WILL be at least one trick on the MBE about it. And it will always happen when there are three people involved in a goofy situation like the one above.
The mindset you need to be charged with attempted murder is the intention to murder someone.
But you can be charged with murder itself even if you only intended to commit great bodily harm and accidentally murdered a person.
There can’t be an attempted negligence crime or attempted felony murder or attempted recklessness.
BECAUSE THEY ARE ALL UNINTENTIONAL CRIMES.
YOU CAN ONLY INTEND TO COMMIT SPECIFIC INTENT CRIMES.
ATTEMPT = INTENT
defenses to attempt
You cannot withdraw or abandon a completed attempt.
Once you go beyond mere preparation and take a substantial step or get dangerously close, you are guilty.
Factual impossibility is also NOT a defense to a charge of attempt.
If your gun jams or you didn’t know it was unloaded, it may be “facutally impossible for you to kill someone” but it doesn’t mean you still didn’t try
.
Legal impossibility IS a defense to a charge of attempt.
Let’s say I THINK it is illegal to go fishing on Sunday. So I do it anyway, attempting to break the law that doesn’t exist.
It’s legally impossible to break this law
I can’t “attempt” to break a law that doesn’t even exist in the legal system.
conspiracy common law
1. agreement with one or more persons
bilateral approach for agreement
This requires actual agreement between two people (not an undercover police officerpretending to conspire with you so he can arrest you) he is FAKING it
Cops Lose Control = Common Law Cops = cops can’t be involved for conspiracy.
2. intent to agree
3. intent to pursue an unlawful objective
conspiracy MPC
1. agreement with one or more persons
unilateral approach for agreement
We can have a conspiracy if one of the people is an undercover cop.
So long as one person agrees, it doesn’t matter if the other person is pretending to agree, the first person will be liable for conspiracy.
2. intent to agree
3. intent to pursue an unlawful objective
overt act is required. ANY small act will suffice. It can even be a non-criminal preparation step.
Ex. showing up to the place you have agreed to rob, or setting up a meeting about it.
when are members liable for the acts of other members in a conspiracy?
Every member of the conspiracy is liable for the acts of other members so long as they are 1) foreseeable and 2) in furtherance of the conspiracy.
EVEN IF THEY DON’T KNOW EACH OTHER, SO LONG AS EVERYONE’S ACTS ARE FORESEEABLE AND IN FURTHERANCE OF THE CONSPIRACY, THEY ARE ALL LIABLE AND ALL GOING DOWN TOGETHER.
Example: You’re putting drugs on a truck in California… it’s foreseeable someone will pick them up from the truck and sell them when it arrives in Chicago. Therefore, you are liable not only for putting the drugs on the truck, but also the later sales in Chicago since they flowed forth from the conspiracy itself.
corporations and conspiracy
One time they had this crazy experimental question where they asked if a person and a corporation could be charged with conspiring together.
Um… no.
A corporation is not a person, they are an enormous robot. Just kidding. But a corporation is not a person, it can only act through people
However, if there are two people that work for the same corporation conspiring, THEN the corporation can be brought in as the third conspirator and charged if the executives are in on it.
We can’t have ONE AGENT + A CORP
But we can have TWO AGENTS + A CORP
BECAUSE AN AGENT ISN’T A FRIGGEN PERSON. AND WE NEED AT LEAST TWO PEOPLE FOR CONSPIRACY.
withdrawing from a conspiracy common law
you can’t withdraw from a conspiracy. The moment you idiots agree on something unlawful, the crime is completed.
But you can withdraw from subsequent crimes that happen later on.
You have to tell everyone, and I mean everyone else in the conspiracy, that you intend to withdraw. You must be CLEAR.
You have to basically be like “look, im withdrawing from this scheme. Don’t ever contact me again about. I’m out.”
Then you can withdraw from later crimes in the conspiracy, even if the main crime itself hasn’t been completed yet.
withdrawing from a conspiracy MPC
you can withdraw from the conspiracy itself under the modern trend, so long as you withdraw before the overt act happens
This is hard to do
As we have discussed above, it’s just a tiny little preparation act, so it’s hard to withdraw before this because it could be as little as a phone call or scoping out the scene. It doesn’t even have to be criminal.
In order to withdraw from later crimes in a conspiracy under the MPC, you must
1) give timely notice to all other co-conspirators (TIMELY, not after the crime) AND
2) you have to really try to take down the conspiracy with an overt act.
Call the police, warn the victim, stop the crime itself.
You can’t do stupid shit like call a priest or tell your best friend.
You have to truly try to stop the whole thing.
overall withdrawing from the conspiracy common law vs mpc
Common Law Rule= You just can’t withdraw from the conspiracy because it’s complete upon agreement. If you and I agree to go blow up some shit, once we agree… we are guilty. We can all understand that.
MPC/Modern Rule = We need more than just agreement under the MPC. We need agreement + preparation act. You can withdraw FROM THE WHOLE CONSPIRACY before the preparation act takes place. However, this act doesn’t have to be big or dramatic. It can just be a mild little preparation act like making a fucking phone call. So almost NOBODY IRL withdraws from the conspiracy itself under this standard.
overall withdrawing from subsequent crimes common law vs mpc
Common Law Rule = You must tell every co-conspirator clearly that you are out for good.
MPC Rule = You must voluntarily renounce the conspiracy and do something to thwart the success of the conspiracy’s purpose (tell the cops, etc).
Telling people + fucking up the conspiracy is the magic recipe.
GOAT ALERT: If they do NOT specify on the MBE, assume they are asking about the MPC rule.
Withdrawal can’t be motivated by fear or being caught or flight.
It must be pure withdrawal.
defenses to conspiracy
impossibility is not a defense
CONSPIRACY LAW PUNISHES PEOPLE WHO ARE PLANNING BAD THINGS, even if those bad things are impossible
The whole point is to punish individuals who come together and join forces to be bad boys and girls… so we don’t care that the objective is impossible to complete, so long as YO ASS WAS PONDERING AND SCHEMING ON IT.
solicitation
encourage, urge, or incite another to commit a crime.
Simply asking someone else to commit a crime, and intending that they carry it out.
SPECIFIC INTENT CRIME
You must have the actual intent that the crime be carried out. NO JOKING AROUND.
Even if you try to call off the crime later on, the mere act of asking will complete the crime.
It’s not all about asking. You must ASK and INTEND that the other person commit the crime.
Solicitation is like asking +
You can’t just ask
You must ask and simultaneously hope and dream that they will truly carry out this criminal objective for you.
difference between solicitation and attempt
And just remember that they will toy with you a little bit to see if you know the difference between attempt and solicitation:
Simply asking a hitman to kill someone intending that they kill them is solicitation, but just asking fails the “dangerously proximate” (CL) and “substantial step” (MPC) tests, so it is not enough for attempt.
Revolves around ASKING vs. AGREEMENT
merger of solicitation and attempt
Solicitation and attempt merge into the completed crime every time.
You can’t be charged with attempting to do something and also DOING IT if the crime is completed.
You can’t be charged with attempted murder AND murder for example if the guy DIES.
For example:
Let’s say Goat tells Rainbow Brown to rob a bank for $10,000. Then this motherfucker Rainbow Brown actually does it. Guess who gets charged for robbing a bank?
Both of them.
Goat under an accomplice liability theory… but being charged through accomplice liability is the SAME DAMN THING AS JUST BEING REGULARLY CHARGED!
Goat doesn’t get charged with solicitation while Rainbow gets charged for murder, REMEMBER THAT.
THEY ARE BOTH CHARGED WITH MURDER because solicitation is ABSORBED by the substantive crime (as is attempt).
Attempt absorbs solicitation.
You can’t be charged with both attempt and solicitation.
merger of conspiracy and solicitation
also merge
If you’re charged with conspiracy and solicitation… you will just be charged with conspiracy, since solicitation will fall off and merge.
Just remember that solicitation is the bitch of the inchoate crimes.
merger of attempt and conspiracy
DO NOT MERGE
You can be charged with conspiracy to murder and the murder itself.
You can be charged with both attempt and conspiracy… at the same damn time.
But this is the most important one because it’s kind of the hardest to remember.
accomplice liability
Someone who actively aids or encourages another person in the commission of a crime.
It’s not enough to just be there. You can’t just stand there and watch your friend beat someone up and be liable as an accomplice.
Failing to call 911 does not make you an accomplice.
You have to actually command, aid, help, ask or encourage someone to commit the crime. Or help them plan it.
INTENT
The accomplice must act with the intent to
1) help the primary party; AND
2) with the intent that the primary party actually commit the offense.
Presence + words of encouragement or minor action coupled with intent to help = this will trigger accomplice liability.
There isn’t a separate crime of “being an accomplice” the accomplice will be liable for the SAME crime that the principal did.
One of the most important things to understand about accomplice liability is that the principal does not even have to know the accomplice is helping for the accomplice to be liable.
There was a problem… I can’t really say where… but there was a problem where a man found out his wife was cheating so he sent her a message and said “I’m going to come home and kill you tonight.”
Her LOVER… I repeat… her LOVER… found this message and deleted it (wtf?)
So the husband shows up and MURDERS her in the problem (yo wtf)
THE LOVER IS FOUND LIABLE AS AN ACCOMPLICE
EVEN THOUGH HE DIDN’T DIRECTLY HELP THE HUSBAND
EVEN THOUGH THE HUSBAND DIDN’T KNOW ABOUT HIM DELETING THE E-MAIL
He fucking FACILITATED this shit by deleting the e-mail
He facilitated this shit. And he facilitated it with intent to aid the principal.
That’s a damn accomplice if I’ve ever seen one.
accessory before the fact
Sometimes … before I commit a crime… I have people help me get prepared… but when I ACTUALLY commit the crimes and it’s time to get down, I don’t bring these people with me.
An accessory BEFORE the fact
is not there when the crime itself is committed, but they assisted, helped, or instructed the principal to commit the crime beforehand.
The accessory before the fact is guilty to the same extent as the perpetrator.
accessory after the fact
An accessory AFTER the fact
Sometimes after a huge crime goes down you have to dash out of there.
But what if after you escape… someone tries to help you?
An accessory after the fact is a person that has knowledge of another person’s guilt and intentionally tries to help them avoid arrest or conviction
This can be in the form of hiding someone;
Helping someone escape;
or giving false information to the police
We need three factors to consider someone an accessory after the fact:
1) A felony crime was actually completed
2) The accessory knew about the felony crime
3) The accessory personally gave aid to the felon to prevent them getting arrested by police or caught or convicted
Just not reporting some shit you know about is not enough to make you an accessory after the fact. You have to take an affirmative act to help the felon.
Being an accessory after the fact, unlike an accessory before the fact, is a separate crime.
It’s not just like the accomplice liability you get from being an accessory before the fact.
Being an accessory after the fact won’t get you charged with the full crime of the principal, it will get you charged with an obstruction of justice charge.
NCBE is obsessed with a scenario where someone pulls up to a bank, not knowing their friends are about to rob the place.
But then they run out with money and alarms blaring.
Driver is not an accessory before the fact because he didn’t know about this shit before it was going down.
But he is an accessory AFTER the fact for driving everyone and helping evade law enforcement.
actus reus
To be liable for a crime you need an actus reus, which is latin for “GUILTY ACT”
You aren’t really committing a guilty act in these scenarios… it is more like an involuntary reflex:
Having a seizure and flailing your arms about and smacking someone in the head.
Being unconscious
Sleepwalking
Having a police officer PICK YOU UP AND PLACE YOU OUTSIDE OF YOUR HOUSE WHILE YOU ARE DRUNK, THEN CHARGE YOU WITH PUBLIC INTOXICATION (yes, they tested this)
mens rea (three categories common law)
- specific intent
- malice
- general intent
mens rea - specific intent
Crimes that require a MOTIVE to produce a result.
Require proof by the prosecution that you wanted some specific result to happen..
These are different from general intent crimes like rape and battery where all the prosecution must prove is that you wanted the act itself to happen.
larceny, burglary, robbery, solicitation, embezzlement, attempt, first degree murder, false pretenses, assault, forgery, conspiracy.
defenses to specific intent crimes
1. getting voluntarily drunk (NOT A DEFENSE TO RECKLESS CRIMES) usually can’t form intent to commit crime when you are drunk. can not purposely get yourself drunk to work up courage to commit crime.
2. unreasonable and reasonable mistake of fact
a reasonable mistake means that basically if the facts were as you believed them to be, the conduct would have been lawful.
even if the mistake was unreasonable, you can try and assert it, up for judge or jury to believe you.
actus reus + specific motive (reaosnable and unreasonable allowed)
mens rea - malice
Reckless disregard of an obvious or high risk that the particular harmful result will occur.
Malice is really only dealt with when we break down MALICE AFORETHOUGHT in common law murder, but arson also requires malice and sometimes these fuckers do test arson to be honest.
In order to prove malice you need to prove the mens rea of recklessness or a “wicked” state of mind.
arson, common law murder
mens rea - general intent
Which just means all you had to intend was to do the actual crime itself, and not intend any third thing happening.
When someone rapes someone for example, the prosecution doesn’t have to prove that the person specifically intended a further result beyond the act itself (such as to cause emotional damage).
Rape, Battery, False Imprisonment, Kidnapping
defenses to malice
REASONABLE mistake.
ex. You had a permit
You tried to burn the barn while the conditions were safe.
You didn’t have the proper wicked mindset of recklessness.
It would be unfair to allow you to allege an unreasonable mistake and say that you thought you could light structures on fire for any reason, or something like that.
defense to general intent mens rea
Mistake is a defense here but it must be reasonable
The most important difference between specific and general intent crimes is knowing that with specific intent crimes, since you need SPECIFIC HOPES AND DREAMS beyond just committing the crime, intoxication and mistake can be a defense
With GENERAL INTENT crimes, we ONLY allow reasonable mistakes, not unreasonable ones.
So when it comes to GENERAL INTENT CRIMES, we want ACTUS REUS + MORAL CULPABILITY
A reasonable mistake negates moral culpability (you shouldn’t be charged with something if you didn’t understand the situation)
An unreasonable mistake, however, is considered morally blameworthy and satisfies our test of ACTUS REUS + MORAL CULPABILITY
strict liability
No mens rea
You will be strictly liable with these types of crimes
What if I told you that even if someone was genuinely unaware of a fact that made something criminal, such as the age of a person in statutory rape case, they’d still be liable.
Reasonable mistake? Intoxication? Yeah fucking right.
There are NOOOO defenses
Except involuntary intoxication
We have these crimes for public protection and to increase the easy of the prosecution
Something’s society just doesn’t want… and we want you to be very cautious when you are thinking of doing them.
Usually these crimes involve morality or regulation
Selling alcohol to a minor and statutory rape are the two strict liability crimes the NCBE likes to use.
But sometimes there are regulation type crimes like littering or violations of the food and drug act too
Violations of food safety standards are so potentially dangerous that those crimes are considered strict liability, so everyone is on notice: do not fuck around with people’s food and give everyone salmonella (I’m looking at you Chipotle)
A lot of dumb shit like “littering” is also a strict liability crime because the penalties are not that severe and the prosecution doesn’t have to go through all the hassle of proving your “mindset” when you threw a bag of Funyuns on the ground.
attempted strict liability
But when we are discussing “attempted statutory rape” or “attempted selling liquor to minors” … well, even though we are talking about strict liability crimes… your mindset now becomes relevant.
If you didn’t intend to try to commit the strict liability crime, you will not be liable.
Whereas if you actually commit the crime, mindset is not relevant at all.
MPC mens rea types
1. Purposefully
Simply means you did the crime intentionally
2. Knowingly
Simply means you had the knowledge of a particular fact or were aware of a high probability of the existence of the fact
Goat note: deliberately avoiding the truth is NOT a defense and the prosecution can still circumstantially prove that you were aware of a high probability of the existence of the fact.
3. Recklessly
Is just a gross knowing deviation from the standard of care, like negligence +
Goat note: every crime on the MBE is presumed to have at least the mens rea of of recklessness, so if none is specified, assume that the crime at least requires recklessness (because it would be unfair to punish someone who did not know what they were doing was wrong)
4. Negligently
When you should have known you were deviating from the standard of care and that a certain result would occur, but you didn’t know.
insanity
If the defendant can show that they were insane at the time the crime was committed, they CAN be found NOT GUILTY BY REASON OF INSANITY.
Affirmative defense
common law - M’Naghten test
- severe mental illness
- cannot appreciate “nature and quality” of actions
- cannot understand whay you are doing is wrong
MPC insanity
as a result of a mental disease, the defendant lacked the capacity to EITHER
1. appreciate the criminal nature of his conduct OR
2. conform his conduct to the requirements of the law.
difference between M’Naghten and MPC
Under the MPC, even if you know it’s wrong, if you can’t conform your conduct to the law, well.. Like our friend who tried to kill Reagan, you may escape.
Under M’Naghten, YOU ACTUALLY HAD TO NOT KNOW THAT SHIT WAS WRONG.
Remember M’Naghten = main one = more strict.
MPC always tries to make shit a little less strict but they kind of missed with this one.
WHEN A QUESTION SIGNIFIES MPC
“An expert testified that the man knew his conduct was wrong.”
They can be found not guilty under MPC if they knew it was wrong.
M’Naghten = DO NOT KNOW
responsibility issue - children and ages
Children under the age of 7 are presumed to NOT have criminal intent.
With children ages 7-14 there is rebuttable presumption of no criminal capacity, which the prosecution can try to disprove but the burden is initially against them.
actual causation
Think of actual causation as a direct link. But-for causation means… well… “but-for” the defendant’s actions, the crime would not have happened.
proximate cause
Think of proximate cause as like a little bubble surrounding all of us.
And honestly… we’re only responsible for things that we do which are within our little bubble.
Sometimes our bubble of possible responsibility gets bigger when we are driving… because we have a bigger zone of danger.
If I’m firing a machine gun into a crowd, I have an enormous bubble - wherever my bullets go.
However, there are some things which are simply too remote for us to hold someone criminally liable for.
If you start a rumor about someone who later commits suicide because of it, you will not be liable for their suicide.
It is simply too remote. Too hard to prove. And your liability through proximate causation does not extend that far.
defenses to criminal conduct
- justification
- self defense
- duress
- necessity
- consent
- entrapment
- insanity
- mistake and impossibility
justification defense
you have to prove that:
1. You were under an imminent threat of death or bodily harm which was not your fault (aka you didn’t place yourself in the bad situation)
2. You had no legal alternative to violating the law
3. You had to do some illegal shit to avoid being hurt
4. You didn’t do the illegal shit for any longer than necessary
In law school I worked on a case at a legal clinic where our client got jumped. He beat up the guy that jumped him and took his gun.
Then he ran because the original guy who jumped him had two friends that were now following him.
He ran with the gun to protect himself and three blocks later he gets stopped by cops and arrested and charged with having the gun lol
He raised the defense of justification and won.
It was a goddamn miracle.
self defense non-deadly force
resisting arrest
You are allowed to use non-deadly force anytime you fear an imminent harm
Non-deadly = no shooting or stabbing
Resisting arrest - allowed in 2 scenarios
1) the arrest is unlawful;
2) the arrest is lawful but the police are using excessive force and beating the shit out of you.
Defense of property - Can’t use deadly force.
self defense deadly force
MAJORITY APPROACH:You can only use deadly force when you believe deadly force is about to be used on you or a third party. The majority approach says you have no duty to retreat.
MINORITY APPROACH:You can use deadly force when you believe deadly force is about to be used on you or a third party AND you have tried to retreat first if possible.
There is never a duty to retreat for those who are
1. In their own homes
2. Are police officers;
3. Are being raped or robbed
You can use self-defense if you are the aggressor, but only after you have tried to retreat and told the victim that you are done beating the shit out of them.
If you provoke someone into suing force against you SOLELY so you can kill them, you cannot allege self-defense as a complete defense.
For example: If you tell your wife you are cheating on her and she tries to stab you… then you shoot her… this is not allowed you crazy fuck. You’ll still be charged with first degree murder even though it’s technically self-defense.
defense of property
There are two rules of fight club if you want to use force to protect property
1) you must make a request for the person to stop fucking with your stuff before you use force to protect it (unless the request would be clearly futile)
2) force can only be used to prevent the interference against the property, not get it back.
If someone is beating your piano with a baseball bat, you can use non-deadly force against them.
If they take the piano and are running away with it, you can’t bash them in the back of their head.
duress defense
Duress is when someone is forcing you to commit a crime.
The elements of duress are as follows:
- There is an imminent (and reasonable) chance of serious bodily harm being threatened against the defendant’s family or loved ones (key-word… IMMINENT… like it has to be happening NOW in person… not over the telephone my Goats)
- The defendant is REQUIRED by the crazy person to commit the crime to avoid the harm;
- The threat is reasonable and IMMEDIATE.
Okay 1 and 3 were kind of the same thing, but I needed to repeat myself for good measure.
My main point is:
THE THING HAS TO BE FUCKING HAPPENING RIGHT NOW.
NO FUTURE THREATS.
The defendant must prove these elements by a preponderance of the evidence.
GOAT NOTE: duress is a defense to ALL crimes EXCEPT MURDER
necessity defense
Essentially there is public and private necessity.
Private necessity is usually tested as trespassing onto someone’s property because you will be subject to harm if you do not (or your property will be damaged.) This is allowed if it’s reasonable.
Public necessity is when your criminal conduct is necessary to prevent some greater harm happening to society - and this is allowed so long as the harm is imminent and your conduct is reasonable.
consent defense
consent is really not a defense unless the crime itself requires consent as one of the elements.
Rape and battery, as crimes, REQUIRE a lack of consent within their elements… so consent is a defense to rape and battery charges.
It’s important to note also that the consent itself must be freely given, willing and voluntary as well.
The party giving consent must be capable of consent (not mentally unsound). And you can’t fraud someone into giving you consent.
entrapment defense
Entrapment is when a defendant is induced or coerced into committing a crime by a GOVERNMENT official that they would not normally have committed otherwise.
Just REMEMBER on the MBE -> if an officer tells a nurse to search someone for example… that’s basically like the officer doing it themselves lmao.
And REMEMBER my Goats… you can’t have had the predisposition to do this in the first place. This is why this defense almost always fails.
Was the defendant an innocent civilian who would never have done this shit?
Or was the defendant a criminal who just took an opportunity when he saw one?
a state acquires jurisdiction over criminal acts for two reasons
- The crime occurred there
- The unlawful result of the crime happened there
If it’s a crime of omission (such as failure to report child abuse), the state where the abuse should have been reported will have jurisdiction.
can you be punished by both state and federal gov for the same act
yes and it WON’T trigger double jeopardy.
search and seizure
government action requirement - search and seizure must be made by a government agent or at the direction of the government
if we want to challenge a search
there must be government conduct. this can be in the form of
1) a cop
2) a private person being forced to do some shit by a cop
if we want to object to the legality of the search, we need
standing
aka - a reasonable expectationof privacy in the area search
standing examples
Who can contest a search?
homeowners, renters, and anyone who lives on a premises.
overnight guests
hotel guests
drivers of borrowed cars
possessors of stoeln property
people in a business
customer = can’t contest a search
manager = can contest a search
employee = can’t contest
owner of starbucks = can contest search of that premises
searches vs seizures
When a passenger is seized within the meaning of the fourth amendment during a traffic stop, that passenger has standing to challenge the constitutionality of the traffic stop if prosecutors seek to introduce any evidence obtained pursuant to the stop at the passenger’s criminal trial.
This doctrine stands in stark contrast to the doctrine employed when a passenger attempts to challenge the admission of evidence obtained pursuant to a search of a car.
passenger property
Can passengers challenge their purse being searched?
A car gets pulled over. I’m freaking out in the passenger seat with my murse. I have a few Xanax in there without a prescription bottle (obviously… we all do). The driver has a gun in the backseat. Uh-oh… now they have probable cause to search the car. But can they search my murse? Yes.
And this MUST be the case my Goats. Because to hold otherwise and create a “passenger property” rule would allow every sketchy fuck to just throw everything in their girlfriend’s purse.
Guns? Throw it in Goat’s purse.
Drugs? Throw it in Goat’s murse.
When probable cause exists to search the whole car, the closed containers of the passenger can be searched too.
Not just for officer safety, but because any other rule would unnecessarily dim the ability of the police to enforce the 4th Amendment.
privacy interests - garbage
when someone leaves their garbage in an alley, they can search it.
once you give up ownership of the trash, you obviously don’t give a shit about it anymore.
IF THE GARBAGE IS ON YOUR CURTILAGE THOUGH, THEY CANNOT SEARCH IT
open fields doctrine
open areas have no reasonable expectation of privacy and therefore are not a search.
no privacy interests in:
sound of your voice
handwriting
bank account records
any shit that can be see across open fields
shit that can be seen from an airplane
open fields even if they are fenced and the police hop the fence to see what you got in your open fields.
odor coming off your car
the location on your car on a public street
paint on the outside of your car
dna samples if someone is arrested for a felony
warrant elements
genrally, searches must be pursuant to a warrant
must be based on probable cause
1) issued by a detached magistrate
2) facts must be fresh
3) person / places must be specific
4) cannot exceed the scope of the warrant
if the warrant is invalid but the police acteed in GOOD FAITH and thought it was valid, it will still probably be upheld.
knock and announce rule
The knock and announce rule says that the police have to knock and announce their presence before forcing entry into a home… and then wait a REASONABLE time before barging in (around 30 seconds)
unless they fear evidence is being destroyed (i.e. they hear the bathroom flushing) or
they think it would be too dangerous to announce their presence (i.e. if Goat Gang was posted up in the trap).
Failure to knock and announce will not get the evidence suppressed.
It does not trigger the exclusionary rule and throw out the evidence.
The knock and announce rule basically has no penalties if you don’t use it lmao.
exceptions to warrant requirement
- search incident to arrest
- automobile exception
- plain view
- consent
- hot pursuit
- exigent circumstances
- inventory searches
- school searches
- abandoned property
- border searches
- airport searches
- police check points
- open fields
warrant exception - search incident to arrest
Search within the defendant’s WINGSPAN
Allows for a search of BOTH open and closed spaces.
A gun in the cupholder of a car is just as dangerous to a cop as a gun in the glove compartment.
Does NOT include the trunk
They can search all the shit within your wingspan
They can take a key from you and open up some locked shit.
GANT
Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distances of the passenger compartment at the time of search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.
When these justifications are absent, a search of an arestees vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.
SO, people that are secured in police cars could no longer have their car searched incident to a lawful arrest.
When someone gets arrested and the police get a “free search”
They can search the defendant AND their immediate surroundings to ensure police safety (and to prevent evidence from being destroyed).
The arrest has to be LAWFUL though, not illegal.
And the search has to happen at the time of the arrest.
Stepping outside of the vehicle
Actually required to step outside of the car for officer safety.
If an officer stops you and wishes to seize and search your cell phone, they need a warrant, EVEN IF IT IS WITHIN YOUR WINGSPAN.
warrant exception - automobile exception
Privacy interest of an automobile is deemed less than that of a house.
So long as we have probable cause, we can search movable vehicles.
Once the police get probable cause, the whole vehicle is open season. No warrant needed.
warrant exception - plain view
Elements
1. Did the officer observe the object from a lawful vantage point?
2. Does the officer have a right of physical access to the object
You CANNOT manipulate the environment.
3. Does the officer have probable cause such that he knows this shit is illegal upon seeing it?
So if police are LAWFULLY allowed to be somewhere, they can seize items which they lawfully have physical access to which are PLAINLY contraband.
warrant exception - consent
The consent must be willing, voluntary, and intelligently made.
who can consent to a search roommates?
anyone with EQUAL right to use a property can object
one person not giving consent can override 10 people giving consent if they all share the space equally.
limited access restricts consent to a search.
you can’t authorize consent to search your roommates room, because you don’t have access to that.
warrant exception - hot pursuit
When the police are in hot pursuit of a fleeing felon… they can bust in and search the WHOLE premise that they run into… and it doesn’t matter WHOSE HOME IT IS!
I mean… they have to be like no more than 20 minutes behind this fucker though. And typically on the MBE they will actually be CHASING the person…. this can’t be like a “hot pursuit of 12 hours” lmao. That’s a cold pursuit.
And the crime must be a felony.
warrant exception - evanscent evidence
if the police do not act quickly, the evidence will be lost.
ex. drug dealer flushing drugs down toilet and police can hear the flushing.
If evidence can disappear = police can usually bust in without a warrant or take the physical evidence on scene.
warrant exception - exigent circumstances
Sometimes there are emergencies which require the police to take immediate action to protect people.
For example, if police see someone inside a house being beaten or get a 911 call that someone is being beaten to death or a child is being harmed… they are busting in that house… you better believe that. So long as they have an objectively reasonable basis.
So they need
(1) an emergency
(2) a search NOT motivated by a desire to obtain evidence, and
(3) a relationship between the emergency and the search.
If they think someone in the house beat someone up and then threw a loaded gun somewhere, they can run around and look for the gun too.
They can’t just walk around looking for drugs or something though lol… the search and the emergency must be CONNECTED and have a mothafucking NEXUS.
However, the warrantless search should end the moment the emergency ends.
warrant exception - inventory searches
Okay so when you get arrested they can take your car back to the station and search it.
They can search all your personal property, actually.
And they almost always will search your personal property and inventory it.
But remember the car, because that is what they test.
If your car gets impounded due to a crime the cops can search the entire vehicle.
But they can’t just use that as an excuse to cut the whole car apart looking for drugs and de-assemble it lmao. It has to be part of their normal police procedure.
They can search closed containers in it as well.
They can strip-search you before you are admitted into jail as well.
arrest
an arrest is made when a person is placed under physical restraint or submits to the authority of the government official making the arrest.
what must a police officer have to arrest a defendant?
probable cause - which simply means when looking at the totality of the circumstances, a reasonable law enforcement officer could conclude that a defendant had committed or was committing a crime.
arresting someone at home
An arrest warrant is required in a home because in America our home is our castle or some shit like that.
So they need a warrant to go into your home and arrest you. On the streets they can pop your ass if they see something shady going on.
In order to break into your home on an arrest warrant, they must have reasonable belief you’re within the home at the time.
what happens if you’re in someone else’s home and they have an arrest warrant?
They will need an arrest warrant for YOU AND a search warrant for your friends house who you are hiding in.
If they don’t have the search warrant, technically they can arrest you in your friends place, but if any evidence of a crime is found there it will be suppressed.
protective sweep
Protective sweeps are made when agents or officers execute a search warrant or arrest warrant inside a residence.
They have to actually look where people would hide. They can’t use this as a way to expand the scope of the arrest warrant or search warrant.
terry stop - traffic violation
Anytime you commit a traffic violation, they can briefly pull your car over to investigate further.
Even if it is a minor traffic infraction, you can be pulled over by police for a little car terry stop.
Can terry stop you for as long as it takes to issue the traffic citation.
A reasonable time to verify their suspicion.
Probable cause can rise and it can dissipate if the police don’t find anything.
It does not matter if the police are secretly stopping you for another reason, they can ALWAYS pull you over if you commit ANY minor traffic infraction.
= pretextual stop
During an investigatory stop, the police can require you to identify yourself and actually arrest you if you don’t comply.
An officer can order both the driver and passenger out of the vehicle during a routine traffic stop if they believe the person or their passenger could be armed.
They can base this on the danger of the neighborhood or the criminal record of the driver and passengers.
when are terry stops allowed
the police can do a brief investigatory stop (terry stop) on someone
1. if they have a reasonable suspicion
2. anytime you commit a traffic violation
terry stop - reasonable suspicion
Reasonable suspicion supported by articulable facts of criminal activity.
It is based on the totality of the circumstances, but it is definitely more than a vague suspicion or a hunch.
Running from cops is enough to briefly detain someone.
Nervousness, sweating, and shaking hands is not enough.
Simply being in a high crime area is not enough.
Loitering for 10 minutes outside a closed jewelry store is enough
what can police do when they briefly detain you in a terry stop?
When the police are briefly detaining you in a terry stop, whether in a traffic stop or just on the street, they can pat OUTSIDE of your clothing to check for WEAPONS.
If the officer feels something that they definitely know is a weapon or drugs, they can pull it out of your clothes.
They call this the plain feel test
They can’t reach into your pockets
If it’s an indescribable lump, they cannot search you, because the whole point of the frisk during the terry stop is OFFICER SAFETY.
arrest standard
Probable cause (higher standard) = totality of circumstances that you’ve committed or are committing a crime = can arrest you
1.
terry stop standard
reasonable ariculable suspicion (lower standard) = you are up to weird shit. can stop you and briefly
Reasonable suspicion itself does not need to be based on an officer’s personal knowledge. It can be based on other officers (the collective knowledge doctrine) or an informant’s tip (the informant has to be reliable though - a named informant is a lot more reliable than an anonymous 911 call)
If an informant says “a man in a pink flamingo shirt is about to get off a train at 8:05 with a huge suitcase full of cocaine…” and the police observe a man INDEED getting off the train at 8:05 with a huge ass suitcase in a pink flamingo shirt… well… the tip has sufficient indicia of reliability for them to detain the man and investigate further.
search and seizure
government action requirement - search and seizure must be made by a government agent or at the direction of the government
search
a government search of a location with a reasonable expectation of privacy
warrant exception - school searches
private schools are NOT covered by the 4th amendment and can do whatever the hell they want.
the standard to search a student in a public school is reasonable suspicion
if the school reasonably believes that a search will uncover evidence that you have violated a school rule, you are getting searched.
they can’t strip search you unless there is some immediate and serious shit about to go down, like a school shooting. they can pat you down and frisk you with reasonable suspicion
only kids involved in sports can be subject to a drug test
warrant exception - abandoned property
If you abandon some shit or drop it or throw it while you are running, no warranty needed. They can pick it up off the ground and search it.
warranty exception - airport searches
You can be searched in an airport without a warrant for pretty much any reason.
warranty exception - border searches
Borders are kind of like the airport, they don’t give a fuck and can search you without a warrant.
They don’t need any type of reasonable suspicion to do anything - even disassemble your whole car or search your laptop.
However, if they are going to strip search you… this must at least be supported by reasonable suspicion… but no warrant is necessary in this instance either.
warrant exception - police checkpoints and roadblocks
The police can’t just set up general crime stopper roadblocks lmao. They can’t just set up roadblocks along I-80 and stop every single car to see if the car has drugs in it… this isn’t North Korea or some shit.
They can only set up roadblocks for issues relating to cars and their mobility and the safety of the road at large.
They can, for example, stop every 10th car looking for drivers who are under the influence (and they often do this on big holiday weekends).
can’t be random, must be a system. aka stopping every 10th car
wiretaps
All wiretaps require a warrant. All of them.
Wiretaps are granted by warrant through a judge only under highly specific circumstances for limited amounts of time
(it isn’t like the movies where they just tap people for months at a time… maybe El Chapo or some shit… but not normal people)
Someone told me in 2023 there were only like 240 wiretap warrants granted in the whole city of Chicago. And you know we are up to some fucked up shit out here. These warrants are kind of hard to get.
fruit of the poisonous tree
This just basically means that evidence obtained in violation of the fourth, fifth or sixth amendments will be suppressed by the judge.
The search must violate federal law to be suppressed
fruit of poisonous tree good faith defense
if officers were acting under a bad warrant but they reasonably THOUGHT it was a good warrant… well… we kind of let it slide
The good faith exception does not apply if officers should have known there was some sketchy shit going on with this warrant or the judge was corrupt or the officer made up the basis for probable cause.
three arguments prosecution can use to attempt to save poisonous tree evidence
- inevitable discovery
- independent source rule
- intervening act of free will
fruit of posionous tree - inevitable discovery
This is just when the police would have discovered the same evidence despite the illegal means they originally used to get it.
Imagine if the police put an illegal GPS on a kidnappers car to find where he is hiding the victim.
Well.. this isn’t allowed… but let’s say an independent source called in and told them exactly where the victim was hiding the next day.
Well, then the location would have been inevitably discovered.
fruit of the poisonous tree - independent source rule
So the independent source doctrine allows for evidence to be admitted if it was obtained from a separate, independent investigation that is COMPLETELY UNTAINTED by the illegal conduct.
Let’s say the police conducted an illegal search and found evidence. But that same evidence was ALSO discovered by a group of officers who were unaware of the illegal search and they obtained it legally. Here, the evidence would still be admissible.
The main difference is that with the independent source doctrine… we are talking about evidence that was found illegally and then SEPARATELY found legally…
with the inevitable discovery rule… we are talking about evidence that was found illegally and then we bring in this imaginary fantasy hypothetical situation where it would have been found anyway and compare it to that lmao.
fruit of poisonous tree - intervening act of free will
This is a scenario where basically a defendant THEMSELVES will purify the fuck-up that happened earlier.
For example, if the cops beat up the defendant to confess or illegally arrest him… but then later on the defendant shows up and confesses to everything…. this will “purify the taint” of illegality.
Yea some illegal shit happened… but then the defendant’s intervening act “broke the taint” of the illegal act.
self-incrimination
Anyone can assert the privilege against self-incrimination
But corporations and partnerships cannot.
You have to be a human being to assert the privilege.
If you are being compelled to incriminate yourself, you may assert the privilege. You can’t assert it if you are not PERSONALLY being compelled.
You can’t assert it on behalf of your lawyer or accountant for example.
If you can show a real threat of criminal prosecution in a civil case, you do not have to answer that questions.
If you don’t assert it RIGHT AWAY in a civil hearing, it will be waived at a later criminal hearing.
Prosecutor makes a negative comment about a suspect in custody invoking their right to remain silent after Miranda warnings.
That is a RIGHT. You do not have to say shit.
The prosecutor CANNOT comment on your post-miranda silence
Except when you are out of custody and not charged.
The other side can comment on your failure to testify in a civil case though, since there is no constitutional right to remain silent in civil cases.
immunity / can your privilege be eliminated?
Yes.
You can be compelled to testify if you are granted transactional immunity, but can’t be prosecuted no matter what evidence comes to light.
derivative use immunity
You can still be prosecuted.
If you say “yes i robbed the bank” at the grand jury, no, they can’t prosecute based on this.
But if 6 months later they find a whole ass video of you robbing the bank and looking into the camera and saying “i am him”
Then yes.. It’s over for you if they want to prosecute.
The government does not have to give you full transactional immunity to force you to testify, only derivative use.
It’s called derivative use immunity because prosecutors USE evidence DE-RI-VED from an INDEPENDENT SOURCE
When it comes to compelled testimony in front of a grand jury, they must give you immunity (at the very least derivative) if they are going to force you to give testimonial statements.
Testimonial statements are basically statements that the prosecution could use to fuck you over and that help establish the elements of a crime.
The MBE likes to test whether they can force you to give your diary to the grand jury
No because it it testimonial.
However, they can force you to just repeat the words that someone ELSE said for example, because they can’t really use that while prosecuting YOU
So remember, when it comes to grand jury and immunity, they can force you to say random shit, but they can’t force you to say or give them anything that could fuck you over.
transactional immunity
once a witness has been compelled to testify about an offense, he may never be prosecuted for that offesne, no matter how much independent evidence might come to light.
miranda warnings
Miranda warnings are used to protect the fifth amendment constitutional right of a suspect in custody against self-incrimination and involuntary confessions.
The purpose of the miranda warnings is to ensure that anyone who is about to be interrogated understands
1. They have the right to remain silent;
2. They are aware that anything they say can be used against them in court;
3. They have the right to an attorney;
4. They understand that if they can’t afford a lawyer, one will be appointed for them prior to any questioning.
The whole purpose is to make sure a suspect in custody understands their rights under the law. The environment can be so coercive when you are under arrest and the risk of involuntary confessions is so dangerous to society that we deem it necessary to let people know what the deal is before they start talking.
If law enforcement fails to give miranda warnings, any statements made by the suspect in custody could be inadmissible later in court.
miranda elements
1) custody - reasonable person would not feel free to leave.
2) interrogation - police attempting to elicit criminal response
miranda elements - custody
Two questions to ask yourself:
1. Would a reasonable person in the same situation feel free to leave or stop the questioning?
2. If they are not in a police station (which is obviously custody), does the environment present the same coercive pressure as a police station?
If someone is handcuffed in a police car = in custody
If someone is being interrogated during a normal traffic stop = not in custody
If cops walk up to you on the street to ask you questions about a recent string of armed robberies in the area = not in custody
If you are being escorted out of your jail cell or at a probation interview = not in custody
Voluntarily going to the police station to talk to the cops = not in custody
Okay you get it.
It’s all about whether your freedom of movement is restrained based on the totality of the circumstances.
WOULD THEY FEEL FREE TO LEAVE OR NOT?!?
miranda elements - interrogation
Accusatory or investigatory?
If they are accusing you of some shit = you are definitely being interrogated.
If they are investigating some shit and you are a witness.. You are not being interrogated most likely.
If the words or conduct by the police are intended to elicit an incriminating response … this is an interrogation.Court will look at:
* Where it happened
* How many cops were present
* What the cops said
* Whether the person was a suspect or a witness
The bar exam loves a scenario where a cop is like:
“LINDA. THIS IS CRAZY. WE HAVE AN ACTIVE SHOOTER. GET DOWN. WHAT DID YOU SEE?!”
This isn’t an interrogation… this is a request for information during an investigation.
miranda - voluntary statements
And remember, voluntary statements are allowed in! They don’t need to mirandize you if you roll into the station and say “EVERYONE LET’S TALK. I DID IT.”
My clients always “blurt” stuff out before the need for Miranda arises lol.
They will get pulled over for blowing a red light and instantly be like “I do have a gun but I have a Firearm Owners Identification Card and also you don’t have probable cause and little JoJo from 79th actually shot Pretty Boy Rick from the Emerald but that wasn’t me I just look like Joe but also I don’t really fuck with cops so I’m not saying shit.”
Then in the police report they’ll be like “defendant made a spontaneous admission that ____”
No miranda needed for spontaneous BLURTS.
can we waive miranda and talk to the cops?
Of course. It’s meant to protect you, so you can waive it if you want.
But the waiver must be knowing and voluntary
Just look at all the facts in the problem to see if the waiver was voluntary and knowingly and freely given.
Just like the whole issue of consent, they will look at whether it is freely given or coerced.
They will look at both mental and physical factors (age, intelligence, etc).
The bar exam could test a scenario where someone receives Miranda warnings in English when they only speak Spanish and speak very limited English. This waiver would then not be knowingly made.
What about being on drugs?
Being on drugs or even medication for mental illness will NOT invalidate a waiver of Miranda.
the request for an attorney
A request for counsel must be clear in order for all questioning to stop.
“Uh. She told me to get my lawyer. She said you guys would railroad me”
DOESN’T WORK
“Maybe I should get a lawyer” does not work.
REQUEST MUST BE CLEAR AND UNEQUIVOCAL
At the FIRST time Miranda warnings are made, if defendant makes an ambiguous request for his lawyer… THEN the officers should ask defendant what they mean by their request.
AFTERWARDS… during the custodial interrogation itself, if Defendant makes an ambiguous request such as “I might want a lawyer”… police can just IGNORE that shit.
POST-WAIVER… if Defendant waives then tries to make an ambiguous request… not going to work. Must be clear and unequivocal.
three miranda warning scenarios
1. during miranda readings
“i might want a lawyer” cops should ask a clarifying question.
2. during interrogation itself - pre-waiver of Miranda
“yeah haha i was kind of at the robbery… but should i get a lawyer?” cops can ignore.
3. postwaiver of miranda
if defendant waives then tries to make an ambiguous request, not going to work. must be clear and unequivocal.
what happens when police get a bad confession that violates miranda… but then later mirandizes the supect and gets another confession?
this will work so long as the original failure to mirandize wasn’t intentional
the police can’t use it as a tactic, but if it happens unintentionally, the second confession gets in.
when somone exercises their miranda rights, can the police ever resume questioning that person?
yes
When a suspect invokes their Miranda rights… it carries through for the duration of custody UNLESS the defendant makes a KNOWING and VOLUNTARY waiver AND:
- The defendant has been out of custody for two weeks
On the 15th day, they must give Miranda AGAIN and can once again do a custodial interrogation.
- The defendant is in prison (still two weeks)
If the defendant is released back into prison after the custodial interrogation, the court reasons that prison is their “neutral environment” now and a 14 day return takes away the coercive effective of questioning. So on the 15th day the cops can re-mirandize and try to talk to the suspect again if the suspect wants.
- Counsel is present and the suspect wants to talk (NO TWO WEEK REQUIREMENT)
If the attorney is present with the suspect and they want to speak to the police… they can do it (they still must waive their Miranda rights again though)
exceptions to Miranda
line ups
photo line ups
statements taken in violation of miranda
can still be used for impeachment.
it can only be used if the defendant actually takes the stand though
If the defendant makes a confession while they are not mirandized, and then gets up on the stand and starts talking shit, they can be impeached.
line-ups
There are a few main ways that police try to get witnesses to identify suspects.
The first and most important is:
The Line-up
So the line-up is just when you put the defendant in a group of people with similar characteristics and the victim or witness chooses who they think they saw commit the crime
We have a 6th amendment right to counsel at all post-charge “adversarial proceedings”…
Do you have a right to counsel at a line-up?
Only after formal charges have been filed.
If the line-up is sketchy in some way or the police make everyone look way different than you… your due process will be violated.
Key-Word on the MBE: Impermissibly suggestive.
The Old Show-Up
This one is the biggest scams of all time.
Police just roll up and literally pull a motherfucker out of the car WHO IS IN HANDCUFFS and are like:
IS THIS THE PERSON WHO DID IT?
But these are actually allowed.
Only important thing you need to know here is that right to counsel for a show-up, like above, only applies after a formal charge has been filed, but not before.
photo line ups
Basically a neutral cop shows up who doesn’t know shit about the case and shows this to a victim or witness and then marks their answer.
THERE IS NO RIGHT TO COUNSEL IN PHOTO LINE UPS. NEVER.
How can we tell if our 6th amendment right to counsel has been violated?
First, if we don’t get counsel for that post-charge show-up or line-up, you know we have PROBLEMS in this motherfucker.
SLNC - sad lawyers never cry
Show-Up Line-UP Need Counsel (post charge)
If NO COUNSEL is present… the pre-trial ID CANNOT be used in court and ANY courtroom ID made after that must be proven to not be TAINTED by or based on a fake pre-trial identification (basically the witness has to say… I saw this person INDEPENDENTLY of this fucked up line-up or show-up and had an ample chance to observe them).
how can we tell if we have a denial of the 14th amendment due process with a bad show up or photo id?
We need to look at whether the identification is unnecessarily suggestive.
We need to show improper police influence
We need to show the police actually ARRANGED for you to stand out.
To look at whether a violation of due process occurred we look at the appearance of the other people shown to the witness, how many people were shown to the witness, the opportunity of the eye-witness to view the defendant at the time of the crime, any statements the police made to the witness before the I.D.
how do we remedy a vioaltion of due process relating to identification
The only proper remedy is to EXCLUDE an in court identification if the out of court identification got fucked up somehow by the police.
The prosecution can defeat this exclusion by showing that the witness had ample opportunity to view the defendant prior to the identification.
The MBE will probably test a scenario where the out-of-court identification does get fucked up but the witness has such a RELIABLE and AMPLE chance to identify the defendant that it doesn’t matter.
And remember one last thing: Polygraphs are NOT admissible as pre-trial evidence.
the right to counsel
When ADVERSARIAL proceedings begin, you are entitled to a lawyer.
This is only in felony cases or misdemeanor cases where you could go to jail.
No right to lawyer when they:
take fingerprints
blood samples
no right at parole or probation revocation hearings… blah blah blah
When do adversarial proceedings actually begin?
Not at the initial appearance, but at either:
The preliminary hearing
Arraignment or
Bond hearing.
The first time two lawyers are fighting on both sides, you get a lawyer.
The MBE has a real boner for this issue
They want you to understand that when you invoke your 5th amendment right to remain silent, it is non-offense specific. This means that the police can’t talk to you about shit until you get a lawyer.
Once you invoke your fifth amendment right to remain silent they can’t keep questioning you over and over again about unrelated charges and forcing you to invoke again and again… you invoke once and that is fine.
Whereas when we are talking about your 6th amendment right to a lawyer… this is offense specific to the actual charge you are facing. So your attorney only has to be at adversarial proceedings related to the charge they appear on lol.
The police can still question you about other charges even if you have an attorney for a SPECIFIC charge.
What is the effect of all this?
If you waive your fifth amendment right to remain silent in a burglary case but have a separate battery case that you have a lawyer for… the cops can still question you about the burglary case.
Having a lawyer in an unrelated case does not make you question proof in all your other cases lol.
undercover officers
If they sneak in an undercover officer to fuck with you AFTER YOU GET CHARGED, whether on the outside or while you’re in jail, it will be a violation of your sixth amendment right to counsel, not your fifth amendment right to remain silent.
The fifth amendment only applies when you actually know you are talking to an undercover officer.
But in order for a jailhouse snitch to violate the 6th amendment rights of a prisoner WITH A LAWYER they actually have to talk to the prisoner and try to get him to incriminate himself, they can’t just listen.
So 6th amendment rights are not violated if the jailhouse snitch is just a “listening post” who doesn’t say anything.
Now if the informant is asking question or even bragging about HIMSELF trying to elicit information from our little defendant… oh NOW we have a problem.
Waiver of Counsel: Going Pro Se
They just have to be fully informed of the disadvantages of this choice by the judge.
ineffective assistance of counsel
We need to show two things to prevail on a claim of ineffective assistance against our lawyers:
1. The representation fell below an objective standard of reasonableness; AND
2. The client was actually PREJUDICED by the ineffective representation (meaning there was a reasonable probability the outcome would have been DIFFERENT if the lawyer hadn’t fucked up)
WE HAVE TO SHOW
THE LAWYER FUCKED UP + YOU WOULD HAVE WON IF THE LAWYER DIDN’T FUCK UP
Everyone can show prong ONE… obviously criminal lawyers are always fucking shit up.
But their minor fuck up doesn’t matter if you shot someone in BROAD daylight then turned to the camera and repeated your full legal name 8 times. The trial would have turned out the same.
I mean if someone has a death penalty case and the lawyer fails to investigate ANY mitigating information about the defendant’s life at the sentencing hearing… that is going to be ineffective per se.
If someone fails to file a notice of appeal or motion to suppress, THAT could be ineffective.
Not informing your client that if they get a felony they might be deported… THAT’S INEFFECTIVE.
bail
Bail is just a monetary amount which ensures a defendant will show up to trial (if they run away.. They give up the money they posted)
At a bond hearing the judge can let you out for free: On your own recognizance OR set bail
The MBE likes to test that excessive bail is a violation of the 8th amendment against cruel and unusual punishment.
REMEMBER: doing something like setting a 10 million dollar bail on a first time DUI violates the 8th amendment cruel and unusual punishment provision.
But the 8th amendment doesn’t require bail… i mean if you murder someone you are staying in jail.
Also excessive civil forfeitures are a violation of the 8th amendment. If they take your $80,000 car and sell it after you get your first DUI for example.
grand juries
Grand jury is basically a scam - just trying to determine probable cause.
The prosecutors could indict a ham sandwich in these things. There is no defense lawyer. Prosecutors don’t have to bring out any good evidence for the defense. Illegally seized evidence is admissible.
A witness has no right to a lawyer at a grand jury proceeding.
The lawyer can wait outside and confer with the witness after every question, but there is no right for any type of defense lawyer to be inside the proceeding - IT IS A SECRET HEARING.
The defendant has no right to be present during the grand jury proceeding either.
Defendant has no right to call witnesses.
In fact, the only damn right anyone has at the grand jury is the right against compelled self-incrimination, which they can take away by giving the defendant or a witness derivative use immunity or transactional immunity
REMEMBER MY LITTLE BABY GOATS AND GOATESSES -> THE MBE WILL PROBABLY TRY TO SAY SOME GOOFY SHIT LIKE THIS…
“Yea lol… I mean the grand jury indictment was fully based on hearsay. It was all based off hearsay from this guy called Hobo Walter who they found under a bridge and… the indictment was based off that. It’s probably not allowed haha I mean it’s hearsay, right? So is it allowed then?”
Hearsay is fucking allowed. Do not disappoint me on this one.
Because the Grand Jury is just a PROBABLE CAUSE DETERMINATION - NOT A TRIAL!
PROBABLE CAUSE IS LIKE THE LOWEST FUCKING LEVEL OF PROOF
THERE WAS A ROCK FOUND THAT KIND OF LOOKED LIKE GOATS FACE NEAR THE CRIME SCENE?
OKAY GOAT DID IT
PROBABLE CAUSE GRANTED
Brady
Okay so prosecutors have a duty to hand over all evidence that could be good for the defendant or it will be a Brady violation. Named after this famous ass case Brady v. Maryland
Failure to disclose any EXCULPATORY evidence or impeachment evidence which helps the defendant will be a due process violation and is grounds for reversal of the conviction
We need two things:
1. HELPFUL EVIDENCE +
2. PREJUDICE FROM DEFENDANT NOT GETTING IT
Then we can overturn that shit.
They like to test a scenario where a prosecutor doesn’t turn over the RECORD of a witness whose credibility was at stake. It would be kind of important to know that Jimmy had 900 convictions for perjuring himself before he was the ONLY eye-witness against our defendant, wouldn’t it?
If they don’t turn this over… BRADY violation.
right to a jury trial
You have a right to a jury trial in felony cases.
A felony is just a crime that is punishable by more than a year in prison.
Also you have a right to a jury trial in any case where the maximum authorized sentence exceeds six months.
If the MAXIMUM SENTENCE IS 6 MONTHS OR LESS - NO JURY TRIAL
6 MONTHS AND ONE DAY = YOU GOT THE JURY
6 MONTHS = NO JURY SON
In a criminal case there must be at LEAST 6 jurors and the verdict must be unanimous.
The jury must be selected from a fair cross-section of the community (they can’t only ask people from a certain area to be on the jury or a certain type of person to be on it).
You don’t have a right to PROPORTIONAL juries though lol (you can’t be like okay… I need two black people, two white people, three women)… no. So long as it’s a fair cross section of the community and the clerk didn’t go insane and only send out the jury summons to a certain group of people… it’s good.
strikes for cause
So each side has strikes.
They have unlimited strikes for cause
i.e. if a juror says “I really can’t be fair” or “my son has cancer and I need to be at home with him” or “I am racist” … well… that’s cause.
preemptory strikes
they can strike whoever they want for ANY reason besides race or gender.
If someone does strike only based on gender or race… a defendant or prosecutor can call a BATSON challenge and have a hearing on it.
If the defendant raises a batson challenge, the defendant has to then show that the prosecutor made a PATTERN of discriminatory strikes based on race or gender and then the prosecution must provide a RACE-NEUTRAL explanation in response
I saw a Batson challenge the other day in court where the prosecutor said “I’m not striking all black people… I’m striking old people your Honor! Those last three people were OLD and the defendant is old… so I think they’d be in favor of him.”
This was fine.
Batson challenge may end up in new trial if they found the strikes were race or gender based
If any weird shit happens at trial or with the procedure… the result is almost always a new trial… just keep that in mind.
right to impartial jury
If jury member is biased or googles the case or does their own weird experiments or does some weird shit… new trial.
But affidavits about what went on in jury deliberations will basically never be allowed
sentencing enhancements
Sentencing enhancements are factual issues which must be determined by jury, not by the judge.
If there is a 15 year enhancement for using a gun, the jury has to find that separately in a jury trial… the judge can’t just be like “lol okay there was a gun, I’m adding on 15.”
The jury has to determine the enhancements BEYOND a reasonable doubt if they increase the penalty beyond the statutory maximum!!!
right to fair trial
One of my defendants flipped over a table at a hearing and then had to be in “blue box” handcuffs at trial… because there was a security concern. But normally, you are allowed to be in a suit and looking presentable.
The defendant has a right to be at all critical parts of the trial (but not things like challenges which take place outside the presence of the jury in the judge’s chambers)
Also, if the defendant is shown to not be competent to stand trial, the burden is on the prosecutor to show that the defendant is indeed competent (by a preponderance of the evidence standard)
let’s talk guilty pleas
Okay so the guilty plea is like a contract - it’s a waiver to the right of jury trial in exchange for a reduced sentence.
The court will not go back on these after sentencing.
Can a judge reject a guilty plea between the prosecutor and the defendant?
YES! Remember this.
A judge does not have to go along with a guilty plea.
A prosecutor can withdraw from it too - before it actually goes through.
Once it goes through and the defendant actually takes the plea, they won’t fuck with it.
They go through this whole rigamarole (is that how you spell this?) when they do the guilty plea.
They make sure there is a proper factual basis, they make sure the plea is voluntary and not the result of a threat, they make sure the defendant understands the minimum and maximum sentence and the nature of the charges.
They make sure the defendant knows they do not HAVE to plead guilty. The judge talks for like an hour.
I had a guy plead guilty then he withdrew his guilty plea and filed a motion which said that during the actual plea he believed the whole thing to be, in fact, staged. Everyone, including Goat, was an actor. And he was the star it all revolved around. But he had no idea the plea process had any real world implications and thought we were doing some type of Off-Broadway show.
They let him withdraw it.
right to confront witness
Okay let’s go into a lightning round. I know damn well you’re getting bored and so am I… but let’s fight through this bullshit so we can pick up these precious 13 questions
The 6th amendment says you have a right to confront witnesses against you at trial.
Simple, right?
Not really.
First the defendant themselves can actually be removed if they are disruptive (this happened to the Waukesha guy, even though he represented himself lmao)
Next we have this MINDFUCK issue… if there’s a co-defendant… and you blame them and they blame you…. well what the fuck, right?
How can you confront them?
They have a right not to testify.
Well, the remedy here may be severance of the two trials so as not to prejudice you.
If their statement gets in blaming you… the judge may remove any mention of your name so as not to prejudice you and the new statement will just be: “Well… someone else did it.” Instead of “Well… Goat did it.”
If they blame you DIRECTLY… then do NOT testify… (and yes, they will probably test this on F24…) this CANNOT be cured by a limiting instruction to the jury. It should not be allowed, because it KNEECAPS your ability to defend yourself when they choose not to testify.
A CO-CONSPIRATOR STATEMENT AGAINST A DEFENDANT WILL NOT BE ADMISSIBLE IF THEY ARE BOTH ON TRIAL AT THE SAME TIME UNLESS THE CO-CONSPIRATOR TESTIFIES AND IS SUBJECT TO CROSS
when does double jeopardy attach?
CAP
jury trials –> when the jury is sworn in
bench trials –> when the first witness is sworn in
- After convictions
- After you are acquitted
- After mistrials due to prosecutorial misconduct
CAP = convictions, acquittals, prosecutorial misconduct
when does double jeopardy NOT apply?
When the jury is unable to agree on a verdict (hung jury)
Retrial after a successful appeal is obviously not a double jeopardy issue
it’s a new trial
Mistrial for manifest necessity
* (example if the defendant develops a weird form of cancer halfway thru the trial and has to get an operation)
- It’s when the judge determines the reason for a new trial is SO damn important, that the Double Jeopardy Clause just CANNOT attach. The proceeding would be INSANELY unfair to one or both of the parties, so it just can’t go.
Examples that would manifest necessity:
* Two jurors disappearing randomly
* Defense refers to inadmissible shit in opening statement
* A witness was hospitalized for a month
* Defense counsel disbarred
What is NOT manifest necessity?
* Sometimes Daddy Judge makes a mistake and calls a mistrial a little… prematurely.
Where a relative of a prosecution witness died and they couldn’t show up to court because of the funeral….
the judge just dismissed it out of nowhere. Lmao. Double jeopardy applied. No new trial allowed.
- Also… there was a situation when a juror talked to a defendant briefly in the hallway, but not about the case, and the juror said they could still be partial… the judge just called a mistrial.
This… was premature. No new trial allowed.
Always think to yourself when it comes to manifest necessity… is this shit actually important and serious?
If it is… double jeopardy won’t attach and they can do a second trial.
If it’s just some random bullshit… double jeopardy attaches. No second trial.
same offense
First off, you can never be convicted of both a greater offense and its lesser included offense
* Assault is a lesser included of robbery
* Battery is a lesser included of murder
* False imprisonment is a lesser included of kidnapping
MBE likes to try and get cute with you - they will have someone be charged with a less included AND a greater included.
Ex: Rainbow Brown was charged with both battery and murder for an attack on Grandma Walters.
The jury only convicted him on battery.
Okay… so they CANNOT retry him on the murder now.
The ONLY exception is this: If Grandma Walters has NOT died yet when they convict Rainbow Brown of the battery… then she dies afterwards… NOW they can convict him of the murder.
MBE will have some guy charged with attempted rape
The jury will acquit him.
Then they will try to charge him with felony murder (which you need an underlying inherently dangerous BARRK felony) to convict someone of… one of the BARRK felonies being rape.
So no… we can’t convict him of the felony murder.
Because double jeopardy bars charging someone with two crimes with the exact same elements.
But it also bars charging someone later on with a crime where ALL of the elements in the new crime… were INCLUDED IN THE OLD CRIME THAT YOU WON!
HOW CAN YOU CONVICT SOMEONE OF A FELONY MURDER BASED ON AN ATTEMPTED RAPE
IF THEY’VE ALREADY BEEN ACQUITTED ON THE ATTEMPTED RAPE
WHERE IS THE UNDERLYING FELONY??!?!?
Nowhere.
How do people actually get lesser included jury instructions?
If you’re charged with murder, can you just argue for aggravated battery?
NO
There has to be a showing that a jury could rationally find the defendant guilty of the lesser-included offense.
I mean if you might be charged with AGGRAVATED theft over $10,000 vs. Regular Theft of only $1,000 for example… well… if there’s a dispute on the price of the goods… you should get the instruction for the lesser included, so long as there is some evidence that a jury could rationally find you guilty of the lesser-included.
bringing a case in front of a grand jury multiple times
The MBE has a boner for a scenario where a grand jury will decide not to indict you, then the prosecutor brings the case in front of a grand jury again
This is allowed
It’s only a probable cause hearing, not a trial, so they can just bring it a thousand times in front of the grand jury if they want to without double jeopardy attaching.
separate sovereign doctrine
Double jeopardy does NOT apply to separate sovereigns
Because they “derive their power” from different sources or some shit, you can be charged ONCE in state court and ONCE in federal court for the same crime, and it will not violate the Double Jeopardy Clause
You can also be charged ONCE in State A then ONCE in State B for the same crime, and it will not violate the Double Jeopardy Clause
But you can’t be charged by the STATE and the same state’s LOCALITY, that would violate double jeopardy
ex-post facto laws
So you can’t change the status of conduct retroactively
If it was legal back then, you can’t make it illegal now and then go backwards and charge.
If it was a misdemeanor back then, you can’t make the law a felony now and then upgrade everyone who got a misdemeanor back then to a felony now.
cruel and unusual punishment
The 8th amendment prevents cruel and unusual punishment
A punishment can be cruel and unusual in two ways:
1. The conditions of where they actually have you confined or imprisoned is fucked up
2. The punishment itself is very harsh
If they deny you medical care for example, this is cruel and unusual.
However, they can force you to take meds and whatnot if you need them.
If they have you do an enormous civil forfeiture for no reason -> THIS will implicate the 8th.
Basically if you get hit for a DUI they can’t just take your $90,000 car for civil forfeiture.
I believe it has to be something like 5x the maximum fines for your DUI.
I actually talked to the lawyer who litigated this issue in the Supreme Court and he was like “if you want to drive drunk, go rent a Bentley. Because they can’t take that fucker.”
It is not cruel and unusual to have a “three strikes” situation by the way.
Like if you do three armed robberies… on the third one you get life.
People challenged this through SCOTUS Jones and said it was cruel and unusual… but it wasn’t found to be.
the death penalty
Not allowed for three types of people
1. Mentally insane
(even if they went insane while on death row)
it is still considered unjust to execute a mentally insane person
2. Someone who is mentally disabled
There is no IQ level at which this is always true, so you have to present evidence to try and prove it
3. A person under age 18 when the crime was committed.
Jail for life without the possibility of parole is also not allowed for minors
burdens of proof
The prosecution has to prove every element of the crime beyond a reasonable doubt.
The defendant doesn’t have to prove a damn thing. They don’t have to say a word during the whole trial.
If the defendant wants to raise an affirmative defense (such as self defense) they must prove it by a preponderance of the evidence.
And no, alibi is not an affirmative defense.
For a trespass case for example, they have to prove that Rainbow Brown (1) entered on land (2) without permission.
If Rainbow Brown said he was drinking at Goat’s house… well… the fact that he has this bullshit alibi is just an attack on element (1) entered on land. It is not an affirmative defense.
I only mention this because the bar exam seems to bring it up as of late.
So defendant proves affirmative defenses by a PREPONDERANCE of the evidence
Prosecution disproves alibi BEYOND A REASONABLE doubt (because it is just attacking an element basically and isn’t a true defense)
Basically just remember that the judge can’t use the jury instructions to make the burden easier on the prosecution. They have to ALWAYS prove all elements. No “inferences” allowed.
appeal and error
Sometimes… well… there are some mistakes at the trial itself
Then an appellate lawyer has to go through the transcript and find all the red flags in terms of any legal fuck-ups that happened
(they don’t re-weigh the facts on appeal, they just appeal anything that was legally improper)
If there is a legal error at trial, you have to object to it to preserve it on appeal. If you do not, it is waived and you can’t bring it up on appeal
Unless…. plain error
plain error
Plain error is no normal mistake. It is a mistake so large, so egregious, and so plainly evident on the face of the record itself… that any judge should have seen it affected the litigant’s rights.
One does not simply allege plain error in an appellate brief, it is a last resort only to be used in exceptional circumstances. It is a safety net. It is not a favor to the accused, but an obligation to society to ensure that fundamental rights are safeguarded.
Plain error defeats waiver.
When they are testing plain error, the right answer choice will usually say the words substantial rights.
If you can show plain error that affected substantial rights, the appellate court must review the case.
harmless error
If an error happened, like a judge should’ve denied an objection but instead granted it… but it was harmless beyond a reasonable doubt and did not prejudice the defendant… the conviction will not be overturned.
On the MBE they will make it VERY clear that it was harmless, and will tell you that it did not prejudice the defendant.
non-harmless error
Okay… what if the error was actually objected to originally (not plain error) and is very serious?
These “non-harmless errors” will result in automatic reversal of the conviction on appeal.
- Not allowing someone to have a lawyer at trial
- Not allowing someone to consult with their lawyer at trial
- Having a weirdass instruction on reasonable doubt that confuses the jurors
- Racial discrimination in the jury selection process
- Not allowing someone to go pro se
These are huge fucking errors.
These types of errors make the trial process fundamentally unfair and it will get kicked back down to the circuit court on appeal for a RE-DO.
