Crim Law/Crim Pro Flashcards
What are the 5global issues to a 4th Am Search and Seizure analysis?
1) Whether a search/seizure is governed by the 4th Am; 2) Whether the person has standing to challenge the gov’ts conduct; 3) Whether a search/seizure conducted WITH a warrant satisfies the 4th Am reqs; 4) Whether a search/seizure conducted WITHOUT a warrant satisfies the 4th Am reqs (i.e. warrantless searches); AND 5) Whether evidence is admissible in ct EVEN IF the evidence is obtained thru a violation of the 4th Am?
When is a search or seizure governed by the 4th Am?
A search/seizure is governed by the 4th Am when… 1) It’s conducted by a gov’t agent; AND Publicly paid police officers (on- or off-duty) Private citizens ONLY IF they are acting at direction of police Private security guards ONLY IF they are deputized by the pwr to arrest Public school administration (e.g. principals, etc) 2) The search/seizure was in an area protected by the 4th Am; AND 4th Am protects individuals from unreasonable search/seizure of… Persons (i.e. bodies) Houses (inc. hotel rooms; “curtilage,” which is an area of domestic use immediately surrounding the house,like the backyard) Papers (e.g. personal correspondence) Effects (i.e. personal belongings) 4th Am does NOT protect objects knowingly exposed to 3d parties, like… Paint scrappings on the outside of a car Account records at a bank Anythiing that can be seen from airspace Garbage left on the curb Voice Odors (including odors emanating from car or lugguage) Handwriting styles Anything that can be seen IN or ACROSS the “open field” 3) The gov’t agent EITHER: (i) PHYSICALLY INTRUDED on a protected area/item to obtain information (e.g. GPS tracking device on a car); OR (ii) VIOLATED an individual’s reasonable expectation of privacy in a protected area/item To meet this std, an individual must show (i) an ACTUAL or SUBJECTIVE expectation or privacy; AND(ii) the privacy expectation is “one that society recognizes as reasonable” A police search is presumptively unreasonable WHEN it they use a device that is NOT in the public use to explore the details of a home that officers could NOT have known w/o physical intrusion
When does a person have standing to challenge a search/seizure under the 4th Am? NOTE: NY Distinction
To have standing, an individual’s PERSONAL privacy rights must be invaded; NOT just those of a 3d party Standing EXISTS when… 1) they OWN the premises 2) they RESIDE on the premises 3) they are overnight GUESTS on the premises (provided the area is one that guests can be expected to access) Yes: living room; dining room; bathroom No: closet in the host’s room Standing DOES NOT EXIST when… 1) they are using someone else’s residence SOLELY for business purposes (e.g. a drug house) 2) they own the property seized, BUT no reasonable expectation of privacy in the AREA from where the property was seized (e.g. no go for man who hides his drugs in girl’s purse) 3) they are passengers in cars and there is a search of the car NY DISTINCTION: there IS STANDING if they are passengers in a car and weapons found in the car are being attributed to them
When is the 4th Am warrant req satisfied? NOTE: NY Distinction
To satsify the 4th Am… 1) the warrant must be issued by a neutral and detached magistrate “Neutral and detached” = judicial officer’s conduct is NOT biased in favor of the prosecution 2) the warrant must be supported by probable cause and particularity Probable causereqs proof of a “fair probablility” that contraband OR evidence of crime will be found in the area searched Hearsay IS admissible for this purpose Police may rely on informant’s tip (EVEN if it’s anonymous); PROVIDED police can get enough corroborating information for a judge to make a “common sense practical” determination that PC exists NY DISTINCTION: the Aguilar-Spinelli test (stricter) is used in NY to evaluate PC based on tips; gov’t MUST establish: (i) the informant’s veracicty/reliability; AND (ii) the informant’s basis of knowledge (NOTE: if basis is unkwn, the police can est thru corroborating evidence) Particularity reqs”no fishing expeditions”; the warrant MUST specifiy: the PLACE to be searched; AND the ITEMS to be seized 3) IF the warrant is DEFECTIVE, the police officers relied on defective warrant in “good faith” An officer’s “good faith” canovercome const. deficits in PC and particularity, UNLESS… Affidavit supporting warrant is EGREGIOUSLY lacking in PC (no reasonable officer could rely on it) Warrant is so FACIALLY DEFICIENT in particularity that officers couldn’t reasonably rely The affidavit relied upon by magistrate contains KNOWING or RECKLESS falsehoods that are necessary for a PC finding The magistrate who issued the warrant is BIASED in favor of the prosecution NY DISTINCTION: the “good faith” doctrine DOES NOT exist in NY 4) the warrant was properly executed by the police Compliance w/ the warrant’s terms and ltds: officers are allowed to search ONLY those areas/items specified in the warrant “Knock and Announce” rule: reqs police to “knock and announce” their presence AND their purpose before entering, UNLESSan officer believes that doing so would be… futile; dangerous; OR would inhibit the investigation
What are the 8 exceptions to the warrant requirement of the 4th Am?
“ESCAPIST” 1) Exigent circumstance 2) Search incident to arrest 3) Consent 4) Automobile 5) Plain view 6) Inventory 7) Special needs 8) Terry “stop and frisk”
What is the”exigent circumstances”exception to the warrant requirement of the 4th Am?
3 types of situations that DON’T req warrants… 1) Evanescent evidence: evidence that would DISSIPATE or DISAPPEAR in the time it would take to get a warrant (e.g. scraping under fingernails) 2) Hot pursuit of fleeing felon: allows police to enter the home of a suspectOR a 3d party to search for a FLEEING felon During hot pursuit, ANY evidence of a crime discovered in plain view while searching for the suspect is admissible 3) “Emergency aid” exception: Police may enter a residence w/o a warrant when there is an OBJECTIVELY reasonable basis for believing that a person inside is in need of EMERGENCY AID to address or prevent injury
What are 5reqs for the”search incident to arrest”exception to the warrant requirement of the 4th Am? NOTE: NY Distinction
To be valid, reqs… 1) A valid/lawful arrest (“custodial arrest”) 2) Justifications of officer safety; AND the need to preserve evidence 3) The search must be contemporaneous in time AND place w/ the arrest 4) The search must be w/in the “wingspan” (i.e. body, clothing, and containers w/in the arrestee’s immediate cntrl) WITHOUT REGARD TO the offense for which the arrest was made NY DISTINCTION: to search containers w/in the wingspan, an officer MUST suspect that the arrestee is ARMED 5) To search automobile incident to an arrest, officer MUST Search w/in a permissible scope, including the interior cabin of the car (and closed containers therein), BUT not the trunk “Secured” arrestee: once an officer has secured an arrestee (i.e. handcuffed and put in back of squad car), the officer can search the arrestee’s vehicle ONLY if she has reason to believe that the vehicle MAY CONTAIN evidence RELATING TO the crime for which the arrest was made NY DISTINCTION: once the occupant is out of the car, police CANNOT search containers inside the vehicle to look for weapons or evidence of crime
What are 2reqs for the”consent”exception to the warrant requirement of the 4th Am?
To be valid… 1) the consent must be VOLUNTARY and INTELLIGENT NOTE: police officers are NOT req’d to tell someone that she has the right to refuse consent 2) the search must extend ONLY TO those areas that a reasonable officer would believe he had permission NOTE re: “apparent authority”: if a police officer obtains consent to search from someone who lacks actual authority, the consent is STILL VALID provided the officer reasonably believed that the consenting person had “actual authority” (e.g. they have a key to an apt and says that it’s “our” apt) NOTE re: shared premises: when adults share a residence, ANY resident can consent to search of the COMMON AREAS BUT, if the co-tenants DISAGREE re: consent, the objecting party prevails (for shared areas)
What are 2reqs for the”automobile”exception to the warrant requirement of the 4th Am?
To be valid… 1) the police officer must have PC to believe that CONTRABAND or EVIDENCE of crime will be found in the vehicle; 2) the search scope = the entire vehicle by opening ANY package, luggage, or other container that may REASONABLY CONTAIN the items for which the PC exists Justifications: vehicles’ readily mobility and individuals’ lesser expectations of privacy in vehicles NOTE: a routine traffic stop can MORPH into a full auto search SO LONG AS the officer acq’s PC BEFORE the search is initiated
What are 3reqs for the”plain view”exception to the warrant requirement of the 4th Am?
To be valid… 1) the officer must have lawful access to the PLACE from which the item can be plainly seen; 2) the officer must have lawful access to the ITEM itself; AND 3) the criminality of the item must be IMMEDIATELY apparent
What are 3reqs for the”inventory”exception to the warrant requirement of the 4th Am?
For an inventory search to be const… 1) the regulations governing them must be REASONABLE in scope; 2) the search ITSELF must comply w/ those regulations; AND 3) the search must be conducted in GOOD FAITH (i.e. be motivated ONLY BY the need to safeguard the owner’s possessions and/or ensure officer safety) NOTE: inventory searchs apply in 2 contexts: (i) when an ARRESTEE is booked into jail; AND (ii) when a VEHICLE is impounded
What are 4 “special needs” exceptions to the 4th Am warrant requirement?
“Special needs” of law enforcement, gov’t emplrs and school officials BEYOND a general interest in law enforcement ————– 1) Random drug testing: SCOTUS has approved warrantless, random drug tests in a variety of contexts, including: (i) railroad emps following an accident; (ii) customs agents responsible for drug enfocement; AND (iii) public school children who participate in ANY extracurricular activity NOTE: suspicionless drug tests are NOT permitted where their primary purpose is to gather CRIMINAL EVIDENCE for geneal use by law enforcememt 2) Parolees: warrantless, SUSPICIONLESS searches of parolees and his home are permissible as a condition of parole 3) School searches: warrantless searches of the person and the “effects” (purses, backpacks, etc) of public schoolchildren are permissible to investigate violations of school rules (e.g. no smoking on school grounds), PROVIDED ea. search is based on reasonable suspicion at its inception and is NOT excessively intrusive (i.e. not a strip search) 4) Border searches: neither citizens nor non-citizens have ANY 4th Am rights AT THE BORDER wrt ROUTINE searches of persons and effects
What is a Terry stop? NOTE: NY Distinction
It is a brief WARRANTLESS detention (“seizure”) based on REASONABLE SUSPECION (specific and articulable facts) thatCRIMINAL ACTIVITY is present Terry stops can take place ANYWHERE (e.g., on the street, in a car, at the airport, etc) Reasonable suspecion is LESS demanding than PC NOTE: Reasonable suspecion std can be met via informant tip; PROVIDED the tip contains sufficient predictive info, which is corrorborated by the police, to est. the informant’s reliability When does “seizure” occur? “Seizure” occurs when a reasonable person would NOT feel free to leave OR to decline an officer’s request to answer questions (based on the totality of the circumstances) Factors to consider: (i) whether an officer brandishes a weapon; (ii) the officer’s tone/demeanor; OR (iii) whether an individual was told she had the right to refuse consent Police pursuit: when being pursued by the police, an individual is seized ONLY IF he submits to the officer’s authority by stopping OR if the officer physically restrains him NY DISTINCTION: police pursuit is seizure in and of itself Traffic stops: BOTH driver AND the passengers are seized (either has standing to challenge legality) Officer can order both driver and passenger out of the car Dog sniffs at traffic stops are permissible PROVIDED the “sniff” does not prolong the stop unreasonably
What is a Terry frisk? NOTE: NY Distinction
It is a WARRANTLESS pat down of the body and outer clothing for weapons (which can lead to a seizure) based on a REASONABLE SUSPECION (specific and articulable facts) that the suspect is ARMED and DANGEROUS(safety-based rationale) Reasonable suspecion is LESS demanding than PC NOTE: Reasonable suspecion std can be met via informant tip; PROVIDED the tip contains sufficient predictive info, which is corrorborated by the police, to est. the informant’s reliability What can be seized? (i) Anything reasonably believed to be a weapon (ii) Contraband; PROVIDED it can be recognized w/o manipulation of the object (e.g. licking to seek if coke) NY DISTINCTION: an officer can seize an item ONLY IF it reasonably appears to be a weapon (i.e. CAN’T seize contraband) (iii) During a traffic stops: an officer can search the passenger cabin of the suspect’s vehicle; PROVIDED the search is ltd to areas in which a weapon may be placed or hidden (iv) “Protective sweeps” during home arrests: officer may “sweep” the residence looking for criminal confederates of the arrestee whose presence may threaten officer safety Officers may “sweep” the area IMMEDIATELY adjorning the place of arrest based on the risk that the house harbors a person who poses a danger To justify a more remote “sweep”, arresting officer must have ADDITIONAL facts sufficient to allow a “reasonably prudent” officer to conclude that an individual who may threaten officer safety is present in the area swept
What is the exclsionary rule for evidence obtained from an unconst search/seizure under the 4th Am (as well as its 4 ltds)?
General rule = Direct OR derivative evidence, whether physical or testimonial, that is obtained in violation of federal statute or const. prvn is INADMISSABLE in ct against the individual whose rights were violated LIMITATIONS to the exclusionary rule 1) Cross examination: unconst obtained evidence is excluded from the prosecutor’s case in chief ONLY; it MAY be introduced to impeach ∆’s testimony on cross-examination 2) “Knock and announce” violations: do NOT require the supression of evidence that is subsequently discovered 3) Police error: to trigger exclusionary rule, police conduct must be (i) deliberate; (ii) reckless; OR (iii) grossly negl. (i.e. merely negl. behavior is NOT sufficient) 4) Officer’s reasonable mistake: exclusionary rule does NOT apply to evidence erroneously obtained when executing a search warrant (PROVIDED the mistake was reasonable)
What is “Fruit of the Poisonous Tree” evidence AND how can “tainted fruit” be admitted?
“Fruit of the Poisonous Tree” evidence = derivative evidence (or secondary evidence) obtained by exploiting PRIOR unconst conduct NOTE: Like direct evidence, FOTPS evidence is INADMISSABLE in the prosecution’s case-in-chief To admit “tainted fruit”, prosecutors MUST show a break in the causal link b/t the original illegality and the criminal evidence that is LATER discovered, which can be done by… 1) “Independent Source” doctrine: applies where there is a source for the discovery and seizure of the evidence that is DISTINCT from the original illegality 2) “Inevitable Discovery” doctrine: applies where the evidence would NECESSARILY have been discovered thru lawful means 3) “Attenuation” doctrine: admits derivative evidence where the PASSAGE of time and INTERVENING events “purge the taint” of the original illegality and RESTORE the ∆’s free will (e.g. ∆ is illegally arrested on Fri and let go, then returns the NEXT WEEK to make a confession)
What are the 4 ways that the police can search an automobile without a warrant?
1) Consent (ltd to areas of consent) Level of suspicion req’d = none 2) Terry stop & frisk (ltd to areas where a weapon may be hidden) Level of suspicion req’d = “reasonable suspicion” 3) Auto exception to warrant req (ltd to areas supported by PC of contraband/evidence) Level of suspicion req’d = PC 4) Search incident to an arrest (ltd to interior cabin, but NOT the trunk) Level of suspicion req’d =reason to believe that the car has evidence relating to the arresting crime NOTE: PASSENGERS do NOT have standing to challenge an unconst search
What are the act AND mental state requirements for an accomplice for accomplice liability to attach? NOTE: NY Distinction
Act req = an accomplice must aid OR encourage the principal Mental state req = accomplice must act with the intent that the CRIME be committed NY DISTINCTION: In NY, the accomplice need NOT specifically intend that the crime be committed; it is SUFFICIENT that the accomplice intends to aid the principal’s CONDUCT (i.e. you can be an accomplice to a negigence or recklessness crime)
For what crimes is an accomplice liable?
The accomplice is guilty of… 1) ALL crimes that he aids or encourages (just as if he did them); AND 2) ALL other foreseeable crimes committed along w/ the aided crimes
Under what 3 circumstances can a person NOT be an accomplice? NOTE: NY Distinction
A person is NOT an accomplice IF… 1) he’s merely present at the scene of the crime (he MUST actively aid/encourage the principal) 2) he has mere knowledge of the crime (he must INTEND to aid/encourage the principal) NY DISTINCTION: Mere knowledge CAN make someone guilty of the (lesser) crime of “criminal facilitation” 3) he’s a victim of the crime (they are a protected class) E.g., minors cannot be convicted of “selling alcohol to minors”
How can an accomplice withdraw to avoid criminal liability? NOTE: NY Distinction
Depends on how the accomplice assisted the principal… 1) Encourager: can withdraw simply by repudiating the encouragement BEFORE the crime is committed 2) Aider: must EITHER neutralize the assistance OR otherwise prevent the crime from happening (e.g. by calling the cops) NY DISTINCTION: In NY “renunciation” is an affirmative defense (burden is on ∆) The accomplice MUST make a substantial effort to prevent the commission of the crime
What are the 3 elements of accessory after the fact? NOTE: NY Distinction
The ∆ must… 1) help a principal who has committed a felony; 2) w/ knowledge that the crime has been committed; AND 3) w/ the intent to help the principal avoid arrest or conviction NY DISTINCTION: In NY, CL accessory after the fact has been codified into the statutory crime of “hindering prosecution”
What are the 2 elements of AND the req’d mental state for CL 1st degree murder?
1st degree murder = 1) Causing the death; 2) of another person Mental state = “malice aforethought” = the specificintent to kill (premeditation ANDdeliberation)
What are 2 special rules for CL “intent to kill” murder?
1) Deadly weapon rule = the intentional use of a deadly weapon creates an INFERENCE of an intent to kill 2) Transferred intent = if a ∆ intends to harm one victim, BUT accidentally harms a DIFFERENT victim instead, the ∆’s intent will TRANSFER from the intended victim to the actual victim NOTE: Most often applies to (all)homicide, but can also apply to other crimes, such as battery and arson EXCEPTION: transferred intent does NOT APPLY to attempts, only to crimes w/ “completed harms”
What are the 2 elements of AND the req’d mental state for CL 2d degree murder?
2d degree murder = 1) Causing the death; 2) of another person Mental state = “malice aforethought”, which can be… the intent to inflict serious bodily harm; OR EXTREME recklessness (i.e. reckless indifference to human life a/k/a “depraved heart”)
What are the 2 versions of AND the req’d mentals state for CL criminal assault?
Version 1 = attempted battery (i.e. a swing/miss) Version 2 = reasonable apprehension, which reqs… 1) The intentional creation; 2) Other than by mere words; 3) of a reasonable apprehension in the mind of the victim; 4) of imminent bodily harm (i.e. a fake punch) Mental state = specific intent
What are the 3 elements of ANDreq’d mental state for CL criminal battery?
Battery = 1) the unlawful; 2) application of force to another; 3) resulting in EITHER bodily injury OR an offensive touching Mental state = general intent
What are the 3 elements of AND the req’d mental state for CL criminal false imprisonment?
False imprisonment = 1) the unlawful; 2) confinement of a person; 3) w/out his consent Mental state = general intent
What is CL felony murder AND its 6ltds?
Felony murder = ANY killing caused during the commission of OR attempt to commit a felony 6 ltds = 1) ∆ must be GUILTY (factually, not necessarily charged) of the underlying felony Defense to felony = defense to felony murder 2) Felony must be inherently dangerous 3) The merger rule: the felony must be INDEPENDENT of the killing i.e. aggrevated assault or battery CANNOT be the underlying crime for felony murder 4) Killing must take place DURING the felonyOR during the immeidate flight from the felony Once ∆ reaches place of temporary safety, the felony ends 5) Death must be foreseeable 6) Victim must NOT be a co-felon
What are the 2 vicarious liability theories under CL felony murder? NOTE: NY Distinction
1) “Proximate cause” theory (majority rule) = if one of the co-felons proximately causes the victim’s death, then ALL of the other co-felons will be guilty of felony murder, EVEN IF the actual killing is committed by a 3d party (e.g. a bystander, a police officer, etc) NY DISTINCTION: this is the approach followed in NY 2) “Agency” theory = felony murder doctrine applies ONLY IF the killing is committed by one of the co-felons
What are the 3 elements of AND the req’d mental state for CL forcible rape?
Forcible rape = 1) sexual intercourse (ANY type of penetration) 2) w/o the victim’s consent; 3) accomplished by: (i) force; (ii) threat of force; OR (iii) when the victim is unconscious Mental state = general intent
What are 2 types of involuntary manslaughter?
1) A killing committed w/ criminal negligence (i.e. a GROSS deviation from a reasonable std of care) 2) A killing committed during the commission of a crime to which the felony murder doctrine DOES NOT apply (i.e. “unlawful act” OR misdemeanor manslaughter)
What are the 2 elements of AND req’d mental state for CL kidnapping?
Kidnapping = 1) false imprisonment (i.e. unlawful confinement w/o consent); 2) that involves either moving the victimORconcealing the victim in a secret place Mental state = general intent
What are the 2 elements of AND the req’d mental state for CL statutory rape? NOTE: NY Distinction
Statutory rape = 1) sexual intercourse (ANY type of penetration); 2) with someone UNDER the age of consent Mental state = strict liability w/ no defense (majority rule) Minority rule = a REASONABLE mistake of age is a defense NY DISTINCTION: age of consent is 17 (i.e.∆ MUST be at least 21, and the victim 16 or younger)
What are the 3 elements of CL voluntary manslaughter?
Voluntary manslaughter = 1) an intentional killing; 2) committed in the heat of passion; 3) upon adequate provocation Provocation needs to be OBJECTIVELY adequate (e.g. serious assault or battery; presently witnessed adultery; normally NOT words) ∆ was actually provoked (a subjective consideration) ∆ did not have time to “cool off” ∆ did not ACTUALLY cool off b/t the provocation and the killing
In NY, what is 2d degree unlawful imprisonment (as well as 1st degree)?
2d degree unlawful imprisonment = 1) unlawfully; 2) restraining someone; 3) without their consent; AND 4) with knowledge that the restriction is unlawful ————— 1st degree unlawful imprisonment = 1) 2d degree unlawful imprisonment; AND 2) a risk of serious physical injury
In NY, when is a homicide crime elevated to “aggravated”?
1) when the victim of the homicide is a police officer killed in the line of duty, the offense can be… Aggravated Murder Aggravated Man 1 Aggravated Man 2 Aggravated Crim. Negl. Homicide 2) when the ∆, over the age of 18, causes the death of a child UNDER the age of 14 in an especially cruel and wonton manner = aggrevated murder
In NY, what is 2d degree criminal assault (along with 1st and 3d)?
2d degree assault = 1) intentionally causing; 2) serious physical injury ————- 1st degree assault = 1) 2d degree assault; AND 2) a weapon ———— 3d degree assault = 1) intentionally causing; 2) non-serious physical injury ———— NOTE: 1) All versions of assault in NY req INJURY (there is no “offensive touching”) 2) Attempted assault reqs intent to assault 3) Menacing: Merely creating a “reasonable apprehension” (w/o intent to actually injury) is NOT assault (this is a seperate crime, “menacing”) 4) Battery is NOT a separate crime in NY!!
In NY, what are the ONLY 6 felonies that can give rise to felony murder?
“B-R-A-K-E-S” 1) Burglary 2) Robbery 3) Arson 4) Kidnapping 5) Escape 6) Sexual assault
In NY, what is criminally negl. homicide?
The ∆ SHOULD have been aware of a substantial and unjustifiable risk of death Mental state = criminal negl.
In NY, what are the 4 elements for the “non-slayer” defenseto felony murder?
NY provides a ltd affirmative defense to felony murder IF the ∆ can prove… 1) the ∆ did not kill the victim; 2) the ∆ did not have a deadly weapon; 3) the ∆ had no reason to believe that his co-felons had a deadly weapon; AND 4) the ∆ had no reason to believe that his co-felons intended to do anything that was likely to result in death
In NY, what is 2d degree kidnapping (as well as 1st degree)?
2d degree kidnapping =abducting someone ————— 1st degree kidnapping= 1) 2d degree kidnapping; AND 2) one of the following: (i) ransom; (ii) restraint for more than 12 hrs w/ intent to rape/injure/rob; OR (iii) death of the victim ————- NOTE: 1) if the victim is killed ACCIDENTALLY, it’s 2d degree felony murder 2) if the victim is killed INTENTIONALLY, it’s 1st degree felony murder
In NY, what is 1st degree manslaughter (along w/ 2d degree manslaughter)?
1st degree manslaughter = 1) Extreme Emotional Disturbance (EED) manslaughter; OR Is an intentional killing committed under the influence of a reasonable and extreme emotional distrubance NOTE: EED manslaughter is an affirmative defense to Murder 2, which ∆ must prove by a perponderance of the evidence 2)An intent to cause serious physical injury ————- 2d degree manslaughter = ∆ is AWARE of and CONSIOUSLY disregards a substantial and unjustifiable risk of death Mental state = recklessness
In NY, what are the various types of homicides?
1) Murder 1 2) Murder 2 3) Manslaughter 1 4) Manslaughter 2 5) Criminally Negligent Homicide ————
In NY, what is 1st degree murder (along with 2d degree murder)?
1st degree murder = a ≥ 18 yr old ∆ who… 1) intentionally kills w/ aggrevating factor [(i) victim is an on-duty cop; (ii) ∆ is murdering for hire; (iii) killing for witness intemidation; (iii) ≥ 1 victim is same criminal trxn]; OR NOTE: premeditation and deliberation are IRRELEVANT in NY 2) commits felony murder where victim was intentionally killed ———- 2d degree murder = a ∆ of ANY age who… 1) intentionally kills w/o aggrevating factor; OR 2) commits highly-reckless killing demonstrating depraved indifference to human life (w/ more than one victim); OR NOTE: If just ONE victim, you need torture 3) commits felony murder where a non-co-felon victim is unintentionally killed
What is the Year-and-a-Day Rule? NOTE: NY Distinction
It’s a MINORITY rule that states that death MUST occur w/in a year + a day of the homicidal act NY DISTINCTION: NY does NOT follow the Yr + a day rule; death may occur at ANY time
What are the 6 defenses to criminal acts?
Capacity Defenses 1) Insanity 2) Voluntary Intoxication 3) Infancy Other Defenses 4) Mistake 5) Self-defense (Justification) 6) Necessity (“Choice of Evils”) 7) Duress 6) Entrapment
What are the 4 ways to establish insanity as a criminal defense? NOTE: NY Distinction
To establish insanity, ∆ must have a “mental disease or defect”, which is proven by… 1) M’Naghten Test (majority – purely cognitive): the ∆ must prove that he EITHER (i) did not know that his conduct was wrong; OR (ii) did not understand the nature of his conduct 2) Irresistable Impulse Test (purely volitional test): the ∆ must prove that he EITHER (i) was unable to cntrl his actions; OR (ii) was unable to conform his conduct to the law 3) The MPC Test (cognitive/volitional test): If the ∆ lacked the substantial capicity to EITHER (i) appreciate the criminality of his conduct; OR (ii) conform his conduct to the requirements of the law NY DISTINCTION: 4) The NY Test: ∆ must prove he lacked substantial capacity to know/appeciate EITHER: (i) the nature and consequences of his conduct; OR (ii) that his conduct was wrong
What is the difference b/t insanity and incompetency?
Insanity = the ∆ was insane AT THE TIME of the crime Incomptency = the ∆ AT THE TIME of the trial CANNOT either… (i) understand the nature of the proceedings against him; OR (ii) assist his lawyer in the preparation of his defense… which will lead to a POSTPONED trial until ∆ regains competency
Is voluntary intoxication ever a defense to criminal activity? NOTE: NY Distinction
Can be a defense to specific intent crimes ONLY NO defense for: (i) malice; (ii) general intent; OR (iii) strict liability crimes Requires SEVERE drunkeness so that ∆ CANNOT form the requisite intent NOTE: Voluntary intoxication can NEVER be a defense IF the requisite intent was formed BEFORE THE INTOXICATION (i.e. to be a defense, must be drunk FIRST) NY DISTINCTION: CAN be a defense to intent crimes and knowledge crimes, IF intoxication kept ∆ from forming the req’d state of mind CANNOT be a defense to crimes of (i) recklessness; (ii) negligence; OR (iii) strict liability
When isinfancy a defense to criminal conduct? NOTE: NY Distinction
“Rule of Sevens” 1) If, at the time of crime, the ∆’s age < 7, prosecution is NOT allowed 2) If, at the time of crime, the ∆’s age is < 14, there is a rebuttable presumption against prosecution 3) If, at the time of crime, the ∆’s age is 14 or older, prosecution IS ALLOWED NY DISTINCTION: 1) If the ∆ is under 13: Criminal prosecution as an adult is NOT allowed (only juvenile delinquency proceedings) 2) If ∆ is 13: Criminal prosecution as as adult is allowed for 2d degree murder ONLY 3) If the ∆ is 14 or 15: Criminal prosecution as adult allowed for serious crimes against persons or property 4) If the ∆ is 16 or older: Criminal prosecution as an adult allowed for ANY crime
When is mistake of fact a defense to criminal conduct? NOTE: NY Distinction
For… 1) Specific intent crimes: ANY mistake of fact (even an unreasonable one) IS a defense 2) Malice/general intent crimes: ONLY a reasonable mistake of fact provides a defense 3) Strict liability crimes: mistake of fact will NEVER be a defense NY DISTINCTION: a mistake of fact will be a defense IF the mistake negates the req’d mental state, THUS… 1) Crimes of intent, knowlege or recklessness: ANY mistake of fact (even an unreasonable one) is a defense 2) Crimes of negligence: ONLY a reasonable mistake of fact is a defense 3) Strict liability crimes: mistake of fact is NEVER a defense
When is mistake of law a defense to criminal conduct?
Rule = mistake of law is generally NOT a defense EXCEPTION: if the statute specifically makes knoweldge of the law an element of the crime (e.g. “selling a phony Rolex, knowing it is unlawful to do so”)
When may a ∆ use nondeadly force in self-defense?
A ∆ may use non-deadly force, IF it is: 1) reasonably necessary 2) to protect against an immediate use; 3) of unlawful force against himself
When may a ∆ use DEADLY force in self-defense? NOTE: NY Distinction
A ∆ may use deadly force, IF he is facing an imminent threat of: (i) death; OR (ii) serious bodily injury …BUT… 1) The “Initial Aggressor”Rule: a ∆ may NOT use deadly force if he is the intitial aggressor (i.e. he started the fight) EXCEPTION: the initial aggressor can “regain” his right to use deadly force IF: (i) he withdraws from the fight and communicates the withdrawal to the other person; OR (ii) the victim suddenly escalates a nondeadly fight into a deadly one NY DISTINCTION: in NY, the initial aggressor must withdraw before using deadly force, EVEN IF the other party suddenly escalates a nondeadly fight into a deadly fight 2) The Retreat Rule: majority rule is that ∆ retreat is NOT required before using deadly force in self-defense NY DISTINCTION: ∆ must retreat, UNLESS (i) ∆ cannot retreat in complete safety; OR (ii) ∆ is in his home
What happens if ∆ is mistaken abt the need to use unlawful force in self-defense? NOTE: NY Distinction
Depends… 1) Reasonable mistake is a COMPLETE defense 2) Unreasonable mistake Majority/NEW YORK rule: no defense at ALL Minority/MPC rule: will MITIGATE but not exonerate An unreasonable belief in need to use deadly force in self-defense will mitigate MURDER to voluntary manslaughter
When can force be used to prevent a crime OR in defense of others?
Depends… Re: preventing crime 1) Non-deadly force may be used, if reasonably necessary, to prevent any serious breach of the peace 2) Deadly force may be usedONLY to prevent a FELONY risking human life Re: defense of others A ∆ may use force and deadly force to protect others JUST AS THE SAME as he could use it to defend himself
When can deadly force be used in defense of property?
General rule: deadly force may NOT be used to defend property EXCEPTION: an OCCUPANT may use deadly force inside her DWELLING when: an intruder has gained entry in a tumultuous manner; AND the occupant reasonably believes that the use of deadly force is NECESSARY to prevent a personal attack on herself or someone else in the dwelling
