Crim Law Overview

Question 1

Crim Law - Generally Overview

Answer 1

A person who actually commits a physical act that has been made illegal by law with the accompanying state of mind may be charged with and convicted of a crime. (If either the act or intent is lacking, the defendant is not guilty of that crime.) Additionally, any person who is an accomplice to that person also may be charged with and convicted of the crime. The law will list the physical acts and mental state(s) required for crime; these are called elements of the crime. Crimes include not only actual criminal acts, but also certain preparatory crimes (“inchoate offenses”). The study of crimes requires the study of the elements of the offense and the elements of a defense that the accused may raise.

Question 2

ESSENTIAL ELEMENTS OF A CRIME

Answer 2

• Physical Act
  1. Must be voluntary act
• Mental State
  1. Specific intent
  a. Requires doing an act with a specific intent or objective
  b. Cannot infer specific intent from doing the act
  c. Major specific intent crimes are solicitation, attempt, conspiracy, assault, larceny, robbery, burglary, forgery, false pretenses, embezzlement, and first degree premeditated murder

2. Malice
   a. Applies to common law murder and arson
   b. Generally shown with (at least) reckless disregard of an obvious or high risk that a particular harmful result would occur
3. General intent
   a. Defendant must be aware that she is acting in the proscribed manner and that any attendant circumstances required by the crime are present
   b. Can infer general intent from doing the act
4. Model Penal Code
   a. Purposely—conscious object to engage in act or cause a certain result
   b. Knowingly—as to nature of conduct: aware of the nature of conduct or that certain circumstances exist; as to result: knows that conduct will necessarily or very likely cause result
   c. Recklessly—conscious disregard of a substantial and unjustifiable risk that circumstances exist or a prohibited result will follow, and this disregard is a gross deviation from a “reasonable person” standard of care
   d. Negligently—failure to be aware of a substantial and unjustifiable risk that circumstances exist or a prohibited result will follow, and this disregard is a gross deviation from a “reasonable person” standard of care

Question 3

ACCOMPLICE LIABILITY - Elements of Accomplice Liability

Answer 3

1. Must be intentionally aiding, counseling, or encouraging the crime—active aiding, etc., required. Mere presence not enough even if by presence defendant seems to be consenting to the crime or even if defendant fails to notify the police
2. If crime is one of recklessness or negligence, accomplice must intend to facilitate commission and act with recklessness or negligence
3. Liability is for the crime itself and all other foreseeable crimes
4. Accessory after the fact (is not an accomplice)
   a. Helping someone escape
   1) Not liable for the crime itself
   2) A separate lesser charge

Question 4

ACCOMPLICE LIABILITY - Defenses

Answer 4

1. Withdrawal is an affirmative defense if prior to the crime’s commission
   a. If encouraged crime, must repudiate encouragement
   b. If provided material, must neutralize the assistance
   c. Or may notify police or otherwise act to prevent crime

Question 5

INCHOATE OFFENSES–SOLICITATION

Answer 5

1. Elements:
   a. Asking someone to commit a crime
   b. With the intent that the crime be committed
2. Defenses:
   a. The refusal or the legal incapacity of the solicitee is no defense
   b. If legislative intent is to exempt solicitor, that is a defense

Question 6

INCHOATE OFFENSES–CONSPIRACY

Answer 6

1. Elements:
   a. An agreement;
   b. An intent to agree;
   c. An intent to achieve the objective of the agreement; and
   d. An overt act (most jurisdictions)
2. Liability—each conspirator is liable for all crimes of other conspirators if foreseeable and in furtherance of the conspiracy
3. Defenses:
   a. Withdrawal
   1) General rule—can only withdraw from liability for future crimes; no withdrawal from conspiracy possible because agreement coupled with act completes crime of conspiracy
   2) M.P.C. recognizes voluntary withdrawal as defense if the defendant thwarts conspiracy (e.g., informs police)
   b. Factual impossibility is no defense
4. Merger
   a. No merger—can be convicted of both conspiracy and substantive offense

Question 7

INCHOATE OFFENSES–ATTEMPT

Answer 7

1. Elements:
   a. Specific intent; and
   b. Overt act—a substantial step in the direction of the commission of the crime (mere preparation not enough)
2. Defenses:
   a. Factual impossibility is no defense
   1) Factual impossibility arises when defendant sets out to do an illegal act, but cannot complete the act due to some unknown reason
   b. True legal impossibility is always a defense
   1) Legal impossibility arises when defendant sets out to do a legal act that he believes is illegal
   c. Abandonment generally no defense after the substantial steps have begun
   1) M.P.C. recognizes abandonment as defense if (i) fully voluntary and (ii) complete (i.e., not a postponement due to unfavorable circumstances)

Question 8

DEFENSES/JUSTIFICATION - Insanity

Answer 8

1. M’Naghten test—disease of the mind caused a defect of reason so defendant lacked the ability at time of his actions to know wrongfulness or understand nature and quality of actions
2. Irresistible impulse test—unable to control actions or conform conduct to law
3. Durham test—crime was product of mental disease or defect
4. M.P.C. test—combination of M’Naghten and irresistible impulse tests

Question 9

DEFENSES/JUSTIFICATION - Intoxication

Answer 9

1. Voluntary intoxication is a defense if it negates “specific intent”

Question 10

DEFENSES/JUSTIFICATION - Self-Defense

Answer 10

1. Non-deadly force (“NDF”)—a person may use NDF in self-defense if she reasonably believes force is about to be used on her; no duty to retreat
2. Deadly force (“DF”)
   a. A person may use DF if she is:
   1) Without fault;
   2) Confronted by unlawful force; and
   3) Reasonably believes that she is threatened with imminent death or great bodily harm
   b. Duty to retreat before using DF
   1) Majority rule—no duty to retreat
   2) Minority rule—duty to retreat, except:
   a) When it cannot be done safely, and
   b) In one’s home
   c. DF in self-defense may be used by original aggressor only if he tries to withdraw (e.g., run for door) and communicates that withdrawal to the original victim, or if sudden escalation of violence by original victim
   d. Use of DF to arrest—officer must reasonably believe suspect armed or presents a danger to the public
   e. If fact-finder determines absence of right to self-defense, defendant may be guilty of voluntary manslaughter under “imperfect self-defense” theory
3. Defense of others or dwelling
   a. NDF—person reasonably believes that NDF is necessary to protect other or dwelling (or to end unlawful entry)
   b. DF—only if a person reasonably believes that she is threatened with death or great bodily harm

Question 11

DEFENSES/JUSTIFICATION - Necessity

Answer 11

1. Choice of evils—harm to society exceeded by harm of criminal act
   a. Objective test
   b. Not available if defendant is at fault for creating situation requiring choice
   c. Traditionally, choice had to arise from natural forces; modern cases do not have this requirement

Question 12

DEFENSES/JUSTIFICATION - Duress

Answer 12

1. Defendant performs a criminal act under a threat of death or serious bodily harm to him or another
   a. Threat must be made by another human
   b. Traditionally, threat to property was not sufficient; MPC now recognizes threat to property as sufficient if harm threatened outweighs harm of criminal act

Question 13

DEFENSES/JUSTIFICATION - Mistake

Answer 13

1. Mistake of fact
   a. Must negate state of mind
   b. Malice and general intent crimes—mistake must be reasonable
   c. Specific intent crimes—mistake can be reasonable or unreasonable
   d. Strict liability—mistake is not a defense
2. Mistake of law
   a. Generally not a defense

Question 14

DEFENSES/JUSTIFICATION - Entrapment

Answer 14

1. Elements:
   a. Criminal design originated with authorities; and
   b. Defendant was not predisposed to commit crime

Question 15

HOMICIDE -

Answer 15

1. Elements of common law murder:
   a. Unlawful;
   b. Killing of another human being; and
   c. With malice aforethought
   1) Malice means
   a) Intent to kill;
   b) Intent to do serious bodily harm;
   c) Reckless indifference to unjustifiably high risk to human life (depraved heart murder); or
   d) Felony murder
   d. One of these four intents plus a lack of justification and no provocation and the defendant kills—what is the crime? Common law murder
2. Defenses:
   a. Justification (self-defense); and
   b. Provocation (reduces the crime to voluntary manslaughter)
3. Felony murder:
   a. If defendant has a substantive defense to the underlying felony, he usually has a defense to felony murder; “procedural” defenses (e.g., statute of limitations) generally no defense
   b. The killing must be foreseeable
   c. Deaths caused while fleeing from a felony are felony murder, but deaths that arise after defendant has found some point of temporary safety are not
   d. Majority rule—defendant is not liable for felony murder for the death of a co-felon as a result of resistance by the victim or the police

Question 16

HOMICIDE - Manslaughter

Answer 16

1. Two kinds—voluntary and involuntary
2. Voluntary manslaughter
   a. Elements:
   1) Adequate provocation;
   2) Gave rise to heat of passion; and
   3) No adequate cooling-off period
   b. Failed self-defense claim is voluntary manslaughter
3. Involuntary manslaughter
   a. Types:
   1) Killing resulting from criminal negligence; or
   2) Misdemeanor manslaughter

Question 17

HOMICIDE - Causation

Answer 17

1. General rule—defendant is liable for all natural and probable consequences of his conduct unless the chain of causation is broken by the intervention of some superseding factor
   a. Superseding factors:
   1) Acts of nature;
   2) Coincidence; or
   3) Negligent medical care not a superseding factor unless gross negligence or intentional malpractice
   b. Two commonly encountered rules:
   1) Hastening an inevitable result; and
   2) Simultaneous acts by two or more parties
   c. Add a causation analysis to any homicide question that presents the issue

Question 18

Battery

Answer 18

1) Unlawful application of force to another;

2) Resulting in bodily injury or offensive touching

Question 19

Assault

Answer 19

1) Intent to commit battery (see a., supra); or
2) Intentional creation (other than by mere words) of a reasonable apprehension in the mind of the victim of imminent bodily harm

Question 20

False imprisonment

Answer 20

1) Unlawful;
2) Confinement of a person;
3) Without his valid consent

Question 21

Kidnapping

Answer 21

1) Some movement or concealment of a victim in a “secret” place
2) Some courts hold that “kidnapping” is committed when the victim is moved during the commission of another crime to a location that places her in more danger than that necessarily involved in the commission of the other crime

Question 22

Rape

Answer 22

1) Any penetration of the female sex organ by the male sex organ (many states have made gender neutral);

2) Without the victim’s effective consent;
a) Intercourse accomplished by actual force;
b) Intercourse accomplished by threats of great and immediate bodily harm;
c) Intercourse where the victim is incapable of consenting due to unconsciousness, intoxication, or mental condition; or
d) Intercourse where the victim is fraudulently caused to believe that the act is not intercourse

3) In the absence of a marital relationship between the woman and the man (most states have abolished or modified this element)

Question 23

Larceny

Answer 23

1) Taking;
2) And carrying away;
3) Of tangible personal property;
4) Of another with possession;
5) By trespass;
6) With intent to permanently deprive that person of her interest in the property

Question 24

Embezzlement

Answer 24

1) The fraudulent;
2) Conversion;
3) Of personal property;
4) Of another;
5) By a person in lawful possession of that property

Question 25

False pretenses

Answer 25

1) Obtaining title;
a) If title is not obtained, the crime is larceny by trick
2) To personal property of another;
3) By an intentional false statement of a past or existing fact;
4) With intent to defraud the other

Question 26

Robbery

Answer 26

1) A taking;
2) Of personal property of another;
3) From the other’s person or presence;
4) By force or threats of immediate death or physical injury to the victim, a member of his family, or some person in the victim’s presence;
5) With the intent to permanently deprive him of it

Question 27

Receipt of stolen property

Answer 27

1) Receiving possession and control;
2) Of “stolen” personal property;
3) Known to have been obtained in a manner constituting a criminal offense;
4) By another person;
5) With the intent to permanently deprive the owner of his interest in it

Question 28

Burglary

Answer 28

1) A breaking;
2) And entry;
3) Of a dwelling;
4) Of another;
5) At nighttime;
6) With the intent to commit a felony in the structure

Question 29

Arson

Answer 29

1) The malicious;
2) Burning;
3) Of the dwelling;
4) Of another

Question 30

General Defenses

Answer 30

1. Based on elements—required element has not been met
2. Lack of required mental state
3. Traditional defenses:
   a. Insanity;
   b. Intoxication;
   c. Infancy;
   d. Self-defense;
   e. Duress or necessity;
   f. Mistake of fact;
   g. Consent (rare); and
   h. Entrapment (rare)

Question 31

Crim Procedure - General Overview

Answer 31

The study of Criminal Procedure, for the most part, is the study of protections given by the Constitution (as interpreted by the Supreme Court) to persons accused of commit- ting crimes. Since most constitutional restrictions on governmental power apply by their terms only to the federal government, constitutional criminal protections are applicable to the states only if the Supreme Court finds that they are part of the due process owed by states to citizens under the Fourteenth Amendment. In addition to the rights speci- fied in the Constitution, the Supreme Court has made a few rules of its own to ensure the specified rights are protected. Two such judge-made rules are the focus of many law school classes—the exclusionary rule and the Miranda rule. The exclusionary rule gener- ally prohibits the introduction at trial of evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments. Miranda generally prohibits introduction at trial of statements obtained from people through interrogation while in police custody unless they are first informed of various rights and warned of consequences of waiving those rights.

Question 32

WAS THE FOURTH AMENDMENT VIOLATED? - Was Seizure of a Person Proper?

Answer 32

1. Right to be free from unreasonable searches and seizures of person and property by government
2. What constitutes a seizure of the person?
   a. Under the totality of circumstances
   b. Reasonable person would not feel free to decline officer’s requests and terminate the encounter
   c. Must be a physical application of force or submission to a show of force
   d. Arrest
   1) Must be based on probable cause
   2) Warrant not required for public arrest
   3) Warrant required to arrest person in own home
   e. Investigatory detentions (Terry stops)
   1) May be made on reasonable suspicion supported by articulable facts
   2) Reasonable suspicion determined by totality of circumstances
   3) Informer’s tips must be accompanied by indicia of reliability
   4) Police must act in a diligent and reasonable manner in confirming or dispel- ling their suspicion (cannot take too long)
   f. Automobile stops
   1) Generally must have at least reasonable suspicion that a law has been violated
   2) Exception—special law enforcement needs can justify suspicionless roadblocks
   a) Cars must be stopped on basis of a neutral, articulable standard
   b) Must serve purpose closely related to a particular problem pertaining to automobiles and their mobility
   g. Subpoena to appear before a grand jury is not within Fourth Amendment protection
   h. Use of deadly force is a seizure, and deadly force may not be used unless reasonable under the circumstances

Question 33

WAS THE FOURTH AMENDMENT VIOLATED? - Was There an Improper Search or Seizure of Property?

Answer 33

1. Was there government conduct?
   a. Fourth Amendment proscribes only governmental conduct (e.g., the police and their agents)
2. Does defendant have standing?
   a. May complain only about interference with own reasonable expectation of privacy or physical intrusion into own constitutionally protected area
   b. Determined under totality of circumstances
   c. Premises—person has a reasonable expectation of privacy in:
   1) Places owned by the person
   2) Person’s home—whether or not person owns or has a right to possess
   3) Place in which person is at least an overnight guest
   4) No reasonable expectation of privacy in things held out to the public (sound of one’s voice, smell of one’s luggage, etc.)
   5) Reasonable expectation of privacy in home extends to curtilage
3. Searches pursuant to a warrant
   a. Warrant requirements
   1) Issued by neutral and detached magistrate
   2) Based on probable cause to believe that seizable evidence will be found in place to be searched
   3) Describes with particularity the place to be searched or items to be seized
   4) Invalid if based on a material false statement that was intentionally or recklessly included
   5) Must generally knock and announce authority
   a) No knock entry permissible if officer has reasonable suspicion that knocking and announcing would be dangerous or would inhibit investi- gation
   b) Evidence not excluded based on violation of above rule
   b. Exceptions to warrant requirement (generally, other warrantless searches unrea- sonable/unconstitutional under Fourth Amendment)
   1) Search incident to lawful arrest (contemporaneous requirement)
   2) Automobile exception
   a) Need probable cause to believe vehicle contains contraband or fruits, instrumentalities, or evidence of a crime
   b) May search anywhere in/on car where item that is subject of search may be found
   c) Contemporaneousness not required
   3) Plain view
   a) Legitimately on premises
   b) Discover contraband or fruits, instrumentalities, or evidence of a crime
   c) In plain view
   4) Consent (from one with apparent right to use or occupy property)
   a) If suspect present, may overrule consent
   b) Parent usually has authority to consent to search of child’s room if parent has access
   5) Stop and frisk
   a) During valid Terry stop (see above)
   b) Police have reasonable belief that detainee is armed and dangerous
   c) May pat down outer clothing for weapons
   d) May seize anything that by plain feel is weapon or contraband
   6) Hot pursuit of a fleeing felon
   7) Evanescent evidence (that is, evidence likely to disappear before warrant can be obtained, such as tissues from under a suspect’s fingernails)
   8) Emergency aid/community caretaker exception (that is, search justified by threats to health or safety)
   9) Inventory searches incident to arrest
   a) Valid if pursuant to established police department procedure
   10) Public school searches by school officials valid if reasonable:
   a) Offers moderate chance of finding evidence of wrongdoing
   b) Implemented through means reasonably related to objectives of the search
   c) Search not excessively intrusive
   11) Mandatory drug testing—has been upheld when it serves a special need beyond the needs of law enforcement
   a) High school students in extracurriculars
   b) Government employees with access to drugs
   12) Border searches—warrantless searches broadly upheld to protect sovereignty

Question 34

WAS CONFESSION VALIDLY OBTAINED? - Was Due Process Violated—Involuntary Confession?

Answer 34

1. Judged by a totality of the circumstances
2. Government compulsion makes confession involuntary
3. Harmless error test applies if involuntary confession erroneously admitted into evidence

Question 35

WAS CONFESSION VALIDLY OBTAINED? - Was Sixth Amendment Right to Counsel Violated?

Answer 35

1. Applies at all critical stages of the prosecution
2. Attaches when adversary judicial proceedings are begun
3. Offense specific—pertains to only one charge and defendant must ask again if later charged with separate, unrelated crime
4. Waivable—must be knowing and voluntary
5. Remedy—if defendant was denied his right at trial, automatic reversal (harmless error rule applies as to nontrial proceedings)
6. Statement made in violation of Sixth Amendment may not be used to prove guilt but may still be used for impeachment

Question 36

WAS CONFESSION VALIDLY OBTAINED? - Was Fifth Amendment Privilege Against Compelled Self-Incrimination Violated?

Answer 36

1. Miranda warnings:
   a. Right to remain silent
   b. Anything that is said may be used in court
   c. Right to an attorney
   d. If cannot afford attorney, one will be appointed
2. Warnings must be given prior to custodial interrogation by police
   a. Defendant must know interrogation is by police; does not apply to informant or probation officer
   b. Custody—would reasonable person under the circumstances feel free to termi- nate interrogation and leave; if not, is environment coercive?
   1) Test is objective
   2) Traffic stop noncustodial (temporary and brief)
   c. Interrogation—any police words or conduct designed to elicit an incriminating response
3. Waiver
   a. Rights must be explicitly invoked
   b. Right to remain silent
   1) Waiver must be knowing and voluntary
   2) Judge under totality of the circumstances test
   3) If warnings given and defendant talked, valid waiver generally found
   4) If right claimed, request must be scrupulously honored (cannot ask more about the crime)
   c. Right to counsel
   1) All questioning must cease
   2) Defendant may voluntarily reinitiate questioning
   3) Request for counsel must be unambiguous
   4) Duration of prohibition against questioning—14 days after defendant returns to normal life
4. Effect of violation
   a. Evidence inadmissible at trial
   b. Statements may still be used to impeach defendant’s testimony
   c. Defendant’s silence after receiving warnings cannot be brought up
   d. Harmless error test applies
   e. Public safety exception—responses to questioning without Miranda warnings may be admissible if questioning was reasonably prompted by a concern for public safety

Question 37

WAS CONFESSION VALIDLY OBTAINED? - Pretrial Identifications

Answer 37

1. Sixth Amendment right to counsel applies at any post-charge lineup or showup
   a. Photo identifications—no Sixth Amendment right
2. Due process standard—unnecessarily suggestive identification procedures that give rise to a likelihood of misidentification violate due process
3. Improper identifications will be excluded from trial
4. If out-of-court identification excluded, in-court identifications allowed if from a source independent of the excluded identification

Question 38

EXCLUSIONARY RULE - Generally

Answer 38

Evidence obtained in violation of defendant’s Fourth, Fifth, or Sixth Amendment rights generally will be excluded to deter government violation of constitutional rights

Question 39

EXCLUSIONARY RULE - Fruit of the Poisonous Tree Doctrine

Answer 39

1. All evidence derived from excluded evidence will also be excluded
2. Balancing test—no exclusion if the deterrent effect on police misconduct is outweighed by the costs of excluding probative evidence
   a. Exceptions
   1) Independent source—evidence will be admitted if from a source indepen- dent of the unconstitutional conduct
   2) Attenuation—intervening act or circumstance
   3) Inevitable discovery by police
   4) Live witness testimony
   5) In-court identification
   6) Violations of no-knock entry rule
   7) Good faith reliance on a defective search warrant
   8) Use of evidence to impeach
3. Outside scope of fruit of poisonous tree
   a. Grand juries
   b. Civil proceedings
   c. Violations of state law
   d. Violations of internal agency rules
   e. Proceedings to revoke parole
4. Harmless error test applies to violations

Question 40

PRETRIAL PROCEDURES - Preliminary (Gerstein) Hearing

Answer 40

1. Hearing to determine probable cause
2. Not required if probable cause already found (e.g., by grand jury or under arrest warrant)
3. Hearing must be within reasonable time (48 hours)

Question 41

PRETRIAL PROCEDURES - Initial Appearance

Answer 41

1. Soon after arrest

2. Defendant told of charges, bail set, appointment of counsel if needed

Question 42

PRETRIAL PROCEDURES - Bail

Answer 42

1. Right under Due Process Clause as to federal prosecutions
2. Not required of states but many state constitutions or statutes require
3. Where right exists, excessive bail an Eighth Amendment violation
4. Where right exists, unfair procedures violate due process

Question 43

PRETRIAL PROCEDURES - Grand Juries

Answer 43

1. Not required of states (but some state constitutions require)
2. Upon finding probable cause, grand jury issues a “true bill”
3. Secret proceedings
4. Broad subpoena power
   a. Quashed only if opposing party can prove no reasonable possibility that material sought is relevant to the grand jury investigation
5. No right to:
   a. Counsel
   b. Miranda warnings
   c. Warnings that witness may be a “potential defendant”
   d. Exclude evidence that would be inadmissible at trial
   e. Challenge subpoena for lack of probable cause

Question 44

PRETRIAL PROCEDURES - Speedy Trial

Answer 44

1. Under totality of circumstances, court will consider: length of delay, reason for delay, whether defendant asserted his rights, and prejudice to defendant
2. Remedy—dismissal with prejudice
3. Right attaches on arrest or charging

Question 45

PRETRIAL PROCEDURES - Prosecutorial Disclosure Duties

Answer 45

1. Government must disclose exculpatory evidence
2. Failure = due process violation if reasonable probability trial result would have been different if undisclosed evidence had been presented at trial

Question 46

PRETRIAL PROCEDURES - Competency to Stand Trial

Answer 46

1. At time of trial, defendant not competent if:
   a. Defendant lacks rational and factual understanding of the charges and proceedings or
   b. Defendant lacks ability reasonably to consult with lawyer
2. Trial judge has a duty to raise if no one else does
3. Burden to prove incompetency may be placed on defendant
4. May be detained in mental facility for only short time unless commitment proceed- ings are brought

Question 47

PRETRIAL PROCEDURES - Pretrial Publicity

Answer 47

Excessive prejudicial publicity may necessitate change of venue

Question 48

TRIAL - Right to Public Trial

Answer 48

1. Sixth and Fourteenth Amendments provide the right to public trial
2. Probable cause hearings presumably open to public
3. Suppression hearings open unless:
   a. Party seeking closure has overriding interest
   b. Closure is no broader than necessary
   c. Other reasonable alternatives were considered
   d. Court makes findings to support closure

Question 49

TRIAL - Right to Jury

Answer 49

1. Sixth Amendment right to jury for serious offenses
   a. Serious offense—imprisonment for more than six months
   b. Civil contempt—no right
2. Number and unanimity
   a. At least six jurors
   b. Jury verdicts must be unanimous
3. Representative cross-section
   a. Defendant need not be of excluded group to complain
   b. Petit jury need not be representative—just venire
   c. Peremptory challenges cannot be used in discriminatory manner
   1) If defendant shows facts or circumstances raising an inference of prejudice,
   2) Prosecutor must give race- or sex-neutral explanation, and
   3) Judge must then determine prosecutor’s sincerity
   4) Defendants similarly limited
4. Right to impartial jury
   a. Right to question on racial prejudice if race inextricably bound up
   b. Opposition to death penalty
   1) May be excluded if view would prevent or substantially impair performance of duty

Question 50

TRIAL - Right to Counsel

Answer 50

1. Denial of right at trial requires reversal
2. Denial of right at nontrial proceedings requires reversal unless harmless
3. Waiver valid if knowing and intelligent and defendant competent
   a. Voluntary and intelligent if defendant has a rational and factual understanding of the proceeding
4. Effective assistance of counsel
   a. Part of Sixth Amendment right
   b. Effective assistance is presumed
   c. Ineffective if:
   1) Deficient performance and
   2) But for deficiency, result of proceeding would have been different
   d. Not ineffective assistance—trial tactics
5. Conflicts of interest—representing multiple clients
   a. May be basis for reversal
   b. No right to joint representation

Question 51

TRIAL - Right to Confront Witnesses

Answer 51

1. Right not absolute (e.g., disruptive defendant)
2. Co-defendant’s confession
   a. Confession implicating co-defendant prohibited unless:
   1) References can be excised or
   2) Confessing defendant takes stand and subjects himself to cross-examination
3. Prior testimonial statement of witness inadmissible unless:
   a. Witness unavailable and
   b. Defendant had an opportunity to cross-examine witness when statement was made
   c. “Testimonial”—at a minimum includes testimony from preliminary hearings, grand jury hearings, former trial, and police interrogation
   1) Police interrogation—nontestimonial if purpose of questioning was to respond to an ongoing emergency
   2) Results of forensic testing testimonial if offered to prove truth of testing
   3) May forfeit by wrongdoing intended to keep witness from testifying

Question 52

TRIAL - Burden of Proof and Sufficiency of Evidence

Answer 52

1. Burden—proof beyond reasonable doubt

2. Mandatory presumption shifting burden to defendant violates Fourteenth Amendment due process

Question 53

GUILTY PLEAS & PLEA BARGAINING - What does a guilty plea do for right to jury?

Answer 53

Guilty Plea Waives Right to Jury

Question 54

GUILTY PLEAS & PLEA BARGAINING - Taking the Plea

Answer 54

1. Judge must determine that plea is voluntary and intelligent
2. Judge must address defendant personally on record to ensure defendant knows:
   a. Nature of charge and crucial elements
   b. Maximum possible charge and mandatory minimum
   c. The right not to plead guilty

Question 55

GUILTY PLEAS & PLEA BARGAINING - Remedy

Answer 55

Unfairly informed defendant not bound by plea

Question 56

GUILTY PLEAS & PLEA BARGAINING - Bases for Collateral Attack on Guilty Plea

Answer 56

1. Plea involuntary—errors in plea-taking procedure
2. Court lacked jurisdiction to take plea
3. Ineffective assistance of counsel
4. Failure of prosecutor to keep plea bargain

Question 57

GUILTY PLEAS & PLEA BARGAINING - Finality of Plea

Answer 57

1. Defendant not permitted to withdraw plea if intelligent choice among alternatives

Question 58

CONSTITUTIONAL RIGHTS REGARDING SENTENCE AND PUNISHMENT - Is right to counsel available at sentencing?

Answer 58

Yes

Question 59

CONSTITUTIONAL RIGHTS REGARDING SENTENCE AND PUNISHMENT - No Right to Confrontation (exceptions?)

Answer 59

1. Exception—magnified sentence based on new findings of fact
2. Exception—capital sentencing requires more confrontation right

Question 60

CONSTITUTIONAL RIGHTS REGARDING SENTENCE AND PUNISHMENT - Resentencing After Successful Appeal

Answer 60

1. If judge imposes greater punishment at trial (after defendant’s successful appeal), record must show reasons for harsher sentence
2. Exception—reconviction upon trial de novo
3. Exception—jury trial

Question 61

CONSTITUTIONAL RIGHTS REGARDING SENTENCE AND PUNISHMENT - Substantive Rights Regarding Punishment

Answer 61

1. Eighth Amendment prohibits punishment that is both cruel and unusual; that is, punishment is grossly disproportionate to offense
2. Death penalty
   a. Statutory scheme must give fact finder reasonable discretion, full information, and guidance in making decision
   b. Statute may not be vague
   c. Application
   1) For murder—valid
   a) For accomplice to felony murder—valid if accomplice participated in a major way and acted with reckless disregard to the value of human life
   2) For rape—disproportionate and invalid
   3) If prisoner is insane—invalid
   4) If prisoner is intellectually disabled—invalid
   5) If prisoner was younger than 18 when crime was committed—invalid
3. Unconstitutional to make a status a crime
4. Unconstitutional to sentence minor to life without possibility of parole for non-homicide crime
5. Unconstitutional to provide for harsher penalties for those demanding trial
6. Imprisonment of indigent for failure to pay fine violates equal protection

Question 62

Appeal generally

Answer 62

A. No Right to Appeal

B. If Right to Appeal Is Granted by State Law, Right to Counsel Applies at First Appeal

C. No Right of Self-Representation

D. Retroactivity of New Rule
New rules announced on direct appeal must be applied to all other cases on direct appeal

Question 63

Habeas Corpus

Answer 63

1. Civil action challenging lawfulness of detention
2. Petitioner has burden to show unlawful detention by preponderance of evidence
3. Defendant must be “in custody” (includes on bail, probation, or parole)

Question 64

DOUBLE JEOPARDY - Fifth Amendment Right Applicable to States Through Fourteenth Amendment

Answer 64

1. Once jeopardy attaches, defendant cannot be retried for same offense

Question 65

DOUBLE JEOPARDY - When Does Jeopardy Attach?

Answer 65

1. Jury trial—when jury empaneled and sworn
2. Bench trial—when first witness sworn
3. Juvenile proceedings—at commencement of proceeding

Question 66

DOUBLE JEOPARDY - Exceptions Permitting Retrial

Answer 66

1. Hung jury
2. Mistrial for manifest necessity to abort original trial
3. Retrial after successful appeal
   a. Cannot be for more serious crime than crime convicted of in first trial

Question 67

DOUBLE JEOPARDY - Same Offense

Answer 67

1. Two crimes are not the same offense if each crime requires proof of an element the other does not require (Blockburger test)
2. Only repetitive criminal prosecutions (not civil actions) prohibited
3. Charges by separate sovereigns (e.g., state and federal governments) not prohibited

Question 68

PRIVILEGE AGAINST SELF-INCRIMINATION

Answer 68

A. Fifth Amendment Right Applicable to States Through Fourteenth Amendment

B. Right for Natural Persons Only (Not Corporations or Partnerships)

C. Applies Only to Testimony

1. Does not apply to physical evidence
2. Does not apply to documents

D. Defendant Can Refuse to Take Stand Altogether

1. Prosecutor cannot comment on defendant’s silence after receiving Miranda warnings
   a. Exception—in response to a claim of no opportunity to explain
   b. Harmless error test applies—violation does not automatically require retrial

E. Witness Other than Defendant Must Take Stand and Invoke Privilege Question- by-Question

F. Elimination of the Privilege

1. Use and derivative use immunity sufficient to eliminate privilege
   a. Immunized testimony is involuntary and cannot be used for impeachment
   b. State immunized testimony cannot be used in federal prosecution
   c. Federal immunized testimony cannot be used in state prosecution
2. Privilege can be waived