Crim Law & Procedure

Question 1

Merger

Answer 1

Generally, no merger for crimes in US.

-Conspiracy does not merge into completed crime. (E.g. can get charged w/ both conspiracy to commit murder AND murder.)
-But solicitation and attempt merge into one completed crime.

Question 2

Inchoate offenses

Answer 2

(1) Solicitation
(2) Attempt
(3) Conspiracy

Can’t be convicted of more than one of these inchoate offenses when the conduct culminates/revolves around the same offense.

Question 3

Legal duty to act scenarios

Answer 3

-By statute
-By contract (life guard under employment contract)
-Relationship b/w parties
-Voluntary assumption of care (e.g. “I’ll save the man!” and then does not).
-Defendant created peril

Question 4

Mens rea (common law)

Answer 4

(1) Specific intent: requires doing an act w/ a specific intent or objective; cannot infer from merely doing the act.
-Defenses to specific intent crimes ONLY: voluntary intoxication; unreasonable mistake of fact.
-Specific intent crimes: solicitation; conspiracy; attempt; first-degree premeditated murder; assault; larceny; embezzlement; false pretenses; robbery; burglary; forgery.

(2) Malice: reckless disregard of obvious or high risk that particular harmful result will occur
-Second-degree murder
-Arson

(3) General intent (catch-all category): awareness of factors constituting a crime; can infer from merely doing the act.
-No additional defenses!

(4) Strict liability: Ds can be found guilty from mere fact that they committed the act, i.e. no mens rea requirement.
-Often comes up in administrative, regulatory, or morality area and statute doesn’t have adverbs like “willfully.”

Question 5

Mens rea/mental states (MPC)

Answer 5

(1) Purposely—conscious object to engage in act or cause a certain result

(2) 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

(3) 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

(4) Negligently (the only objective standard) —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

Transferred intent: D intended harm to different victim or object, but doesn’t mitigate mens rea/crime. Applies to homicide, battery, and arson. But if e.g. homicide, can be charged both with murder (via transferred intent) and attempted murder (of the person you actually meant to kill but didn’t).

Question 6

Accomplice liability (common law)

Answer 6

Principals in the first degree: persons who engage in act that constitutes the crime.

Principals in the second degree: persons who aid, advise/counsel, or encourage, and are present.

Accessories before the fact: persons who assisted or encouraged but were not present.

Accessories after the fact: persons who, with knowledge that another person committed felony, assisted them after the felony was complete to escape arrest or punishment.

Question 7

Accomplice liability (modern statutes)

Answer 7

-Most jurisdictions have abolished distinctions b/w principles in the first and second degrees.

In most jurisdictions + under MPC, accomplice liability only imposed if accomplice has dual intent:
-(1) the specific intent to aid or encourage the principal before or during the crime and
-(2) the specific intent that the principal commit the crime (mere knowledge not enough)

-Liability is for the crime itself and all other foreseeable/probable crimes committed during the course of committing the OG crime.

Question 8

Withdrawal from accomplice liability

Answer 8

-Must repudiate encouragement.
-Must attempt to neutralize any assistance.
-Notifying police or taking other action to prevent crime also sufficient.
-Mere withdrawal w/o taking additional remedial steps is NOT sufficient.

Question 9

Inchoate offenses (conspiracy)

Answer 9

-Agreement b/w 2 more persons
-Unilateral/modern approach: only 1 party must
have criminal intent, e.g. can be convicted of
conspiracy if “conspiring” w/ undercover police
officer or if one party has a defense
-Traditional/common law bilateral approach: at least
2 parties must have criminal intent).
-Intent to enter into agreement
-Intent to achieve unlawful objective
-Unlike common law, majority of states require overt act (even an act of mere preparation, e.g. buying black ski mask).

Liability: each conspirator is liable for all crimes of other conspirators if foreseeable
AND in furtherance of the conspiracy.

Defenses:
-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); affirmative act that notifies co-conspirators of withdrawal in time for them to abandon plans.
-Factual impossibility is no defense.

Question 10

Inchoate offenses (solicitation)

Answer 10

-Asking another person to commit a crime, with intent that the person commit it. (If the other person agrees to commit the act, the solicitation merges into the crime of conspiracy.)

Question 11

Inchoate offenses (attempt)

Answer 11

Act done with intent to commit a crime that falls short of completing it. Needs to be attached to another crime (i.e. attempted x).
-(1) Specific intent
-(2) Overt act: act BEYOND mere preparation.
-Traditional/proximity test: dangerously close to completion.
-Modern/majority test: substantial step in course of conduct.
-(3) In furtherance of the crime

Defenses:
-Abandonment: not defense at common law; defense under MPC if fully voluntary and complete.
-Factual impossibility: not a defense even if the attempted crime can’t be completed (e.g. no money in the armored car that people attempted to rob).

Question 12

Common law murder

Answer 12

Unlawful killing of a human being with malice aforethought

Malice aforethought –> specific intent to kill or inflict serious bodily harm:
-Intent to kill (first-degree murder)
-intent to inflict great bodily injury (second-degree murder)
-DHM / Reckless indifference to an unjustifiably high risk to human life (second-degree)
-Intent to commit a felony [burglary, arson, rape, robbery, kidnapping] (first-degree)

Question 13

First degree murder

Answer 13

-Deliberate and premeditated first degree murder: D made decision to kill in cool and dispassionate manner and actually reflected on idea of killing
-Killing committed during commission of an enumerated felony. At common law: burglary, arson, rape, robbery, kidnapping.
-Murder of a police officer (if acting in line of duty and perp knows the victim is police officer).

Question 14

Second-degree murder

Answer 14

-Depraved heart murder

Question 15

Limitation on felony murder liability

Answer 15

-D must have committed or attempted to commit underlying felony. So if you have a defense to the underlying felony, you’re also off the hook for the felony murder.
-Felony must be distinct from killing itself.
-Death must have been foreseeable.
-Death must have been caused before immediate flight from felony ended. If you’ve reached a point of temporary safety and then later you e.g. hit a pedestrian, that’s not felony murder.
-D not guilty of felony murder when a co-felon is killed as a result of resistance from the felony, victim, or the police.
-Proximate cause theory: felon liable for deaths of innocent victims caused by someone other than co-felon (minority view).
-Agency theory: felon liable only if killing committed by felon or agent (majority view).

Question 16

Voluntary manslaughter

Answer 16

Killing that would be a murder but for the existence of adequate provocation. This provocation is only adequate if:
-Provocation would arouse sudden and intense passion in mind of ordinary person.
-D was in fact provoked.
-Not sufficient time b/w provocation and killing for passions of reasonable person to cool.
-D in fact did not cool off.

Imperfect self-defense: murder reduced to manslaughter even though (1) D was at fault starting the altercation or (2) D unreasonably but honestly believed in the necessity of responding with deadly force.

Question 17

Involuntary manslaughter

Answer 17

-Killing committed w/ criminal negligence (or recklessness under MPC)
-Criminal negligence: D fails to be aware of substantial and unjustifiable risk; substantial deviation from standard of care of reasonable person.
-Killing committed during commission of unlawful act (unenumerated felony, misdemeanor).

Question 18

Causation

Answer 18

-Cause in fact: death would not have resulted but for D’s conduct
-Proximate cause: result is a natural and probable consequence of the conduct (even if D did not anticipate the precise manner in which the result occurred).

Question 19

Limitations on causation

Answer 19

-The year and day rule: traditionally, to be liable for homicide, the death of victim must occur within one year and one day from infliction of the injury or the wound. But abolished by most states!
-Intervening acts: an act shields a D from liability if the act is a coincidence or outside the foreseeable of risk that’s created by the D. Negligent medical care = still on the hook for the crime.

Question 20

Battery

Answer 20

Unlawful application of force to the person of another resulting either bodily injury or an offensive touching.

-General intent crime (so the two additional defenses are not available).

Question 21

Assault

Answer 21

-Attempt to commit battery OR
-Intentional creation (other than by mere words) of reasonable apprehension of imminent bodily harm

Question 22

False imprisonment

Answer 22

Unlawful confinement of a person w/o valid consent

Question 23

Kidnapping

Answer 23

-The intentional and unlawful confinement of another
-against that person’s will
-coupled with either moving or hiding that person

But for a kidnapping to occur incident to the commission of another offense, the victim must be moved more than is necessary to complete the other offense.

Question 24

Statutory rape

Answer 24

Strict liability.

Reasonable mistake of fact? Not an applicable defense b/c strict liability crime.

Question 25

Larceny

Answer 25

Taking and carrying away [asportation] of tangible personal property of another by trespass (w/o consent/intent induced by fraud) with intent to permanently deprive. The intent to permanently deprive must be concurrent with the taking and carrying away.
-Mistake of law is no excuse!

Insufficient intent for larceny:
-Belief that property is D’s
-Intent to borrow property
-Intent to keep property as repayment of debt
-D has some right to it

-Larceny can be committed with lost or mislaid property that has been delivered by mistake, but not with abandoned property.

Continuing trespass: D wrongly takes property w/o intent to permanently deprive and later decides to keep it = larceny.

It is possible to commit larceny of your own property if another person, such as a bailee, has a superior right to possession of the property at that time. E.g. Because the mechanic had a right to possession of the van until he was paid for the repairs, the student committed larceny when he had his friend take the van without the mechanic’s consent.

Contrast with larceny by trick: larceny is taking WITHOUT consent whereas larceny by trick is taking WITH consent.

Question 26

Embezzlement

Answer 26

Fraudulent conversion of personal property of another by person in lawful possession of that property

-Often a trustee is the embezzler
-Don’t have to carry away or get the benefit to be an embezzler; just possession of the property is required.

If the defendant intended to restore the exact property taken, it is NOT embezzlement. But if he intended to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money-of identical value-that he intended to return.

Question 27

False pretenses

Answer 27

Obtaining TITLE to personal property of another (including money!) by intentional false statement of past or existing fact (under majority view, fraudulent promise to do something in the future also counts) with intent to defraud. Look for misrepresentations.

False pretenses: victim gives up title to property.

Question 28

Larceny by trick

Answer 28

Victim consents to the D taking POSSESSION of the property, but that consent is induced by misrepresentation or deceit.

Different than larceny because larceny is taking and carrying away without consent.

Question 29

Robbery

Answer 29

Taking of personal property of another from other’s person or presence by force or threats with intent to permanently deprive.
-A threat to damage or destroy property (other than the victim’s home) is NOT sufficient.

Need imminent harm, i.e. “I’m going to beat you up in a couple of days” is not sufficient.

Question 30

Extortion

Answer 30

At common law, consists of the corruption or the corrupt collection of an unlawful fee by an officer under color of office.

Under modern statutes, obtaining property by means of threats to do harm or expose information.

Question 31

Receipt of stolen property

Answer 31

Receiving, possession, and control of stolen personal property known to have been obtained in a manner constituting a criminal offense by another person tending to permanently deprive the owner.

But property is no longer considered stolen once the police recover the property, i.e. locate and exercise control over it.

Question 32

Theft

Answer 32

Often, all the property crimes are aggregated together under the broad bucket of “theft.”

Question 33

Forgery

Answer 33

Making or altering a writing (a will, a check) with apparent legal significance so that it is false with intent to defraud.

Question 34

Burglary

Answer 34

Common law: breaking and entering of dwelling (any part of the body crosses into the house) of another at nighttime with intent to commit a felony in the structure.
-Most modern statutes have eliminated the nighttime requirement and have expanded the dwelling to include all kinds of buildings.

-Breaking: can be actual or constructive. But if a door is wide open and you just walk through and steal stuff and walk out, at common law you’re not on the hook for burglary! But if same scenario, but you also push open some interior doors (e.g. door to the bedroom), then that is “breaking.”
-Constructive breaking: breaking by fraud (e.g. using an entrusted key for a purpose other than the reason you were given the key) or threat.
-Intent to commit a felony: must exist at the time of breaking and entering.

Question 35

Arson

Answer 35

Common law: malicious burning of dwelling of another.
Modern: not just dwelling; includes explosions, etc.

No specific intent required (b/c it’s a malice crime).

Damage required for arson:
-Scorching (blackening by smoke or discoloration by heat) is not sufficient.
-Charring is sufficient.

Question 36

Defenses (insanity)

Answer 36

Four tests:
(1) M’Naghten/right-wrong test (most popular): D entitled to acquittal if disease of the mind caused defect of reason such that D lacked ability to know wrongfulness of actions or understand nature and quality of actions.
(2) Irresistible impulse test: D entitled to acquittal if, because of mental illness, unable to control actions or conform conduct to the law.
(3) Durham/products test (only in New Hampshire): D entitled to acquittal if crime was product of mental illness.
(4) MPC test: D entitled to acquittal if D had mental disease or defect and, as a result, lacked substantial capacity to either appreciate criminality of conduct or conform conduct to the law.

Burdens of proof and persuasion:
-All Ds are presumed sane, so D must raise issue and prove their insanity by a preponderance of the evidence.

Question 37

Defenses (intoxication)

Answer 37

May be caused by any substance (incl. medicine).

-Voluntary intoxication: result from intentional taking, w/o duress, of substance known to be intoxicating.
-Defense to specific intent crimes. Voluntary even if alcoholic or drug addict. EXCEPTION: if you have the intent to commit a crime and then you drink to work up the nerve to commit it, voluntary intoxication is not a defense.
-But under MPC approach, voluntary intoxication may be a defense to crimes for which the requisite mens rea is purposely or knowingly.

-Involuntary intoxication: results from taking substance w/o knowledge of its nature, under duress, or pursuant to medical advice while unaware of intoxicating effect.
-Can be defense to ALL crimes.

Question 38

Defenses (infancy)

Answer 38

Common law:
-Under age 7 = no criminal liability
-Ages 7-14 = rebuttable presumption that child unable to understand wrongfulness of acts.
-Age 14 and older = treated as adult

Question 39

Defenses (self-defense)

Answer 39

Nondeadly force: person w/o fault may use such force as person reasonably believes is necessary to protect themselves from imminent use of unlawful force.

Rule for deadly force: person may use deadly force in self-defense if person:
-is without fault
-is confronted with unlawful force
-reasonably believes they are threatened with imminent death or great bodily harm

Retreat: no duty to retreat under majority view

Question 40

Defenses (right of the aggressor to use self-defense)

Answer 40

If one is the aggressor in the confrontation, they may use force in defense of themselves only if:
-They effectively withdraw from the confrontation and communicate their desire to do so, OR
-The victim of initial aggression suddenly escalates a minor fight into one involving deadly altercation that the initial aggressor has no chance to withdraw from.

Question 41

Defense (defense of others)

Answer 41

Right to defend others if D reasonably believes person has right to use force in own defense.

Majority view = no need for special relationship b/w D and the person they’re defending.

Question 42

Defenses (defense of dwelling)

Answer 42

A person may use nondeadly force in defense of their dwelling when, and to the extent that they reasonably believe that such conduct is necessary to prevent or terminate another’s unlawful entry or attack upon their dwelling.

Deadly force may be used only to prevent a violent entry and when the person reasonably believes the use of force is necessary to prevent a personal attack on themselves or another in the dwelling or to prevent entry to commit a felony.

Question 43

Defenses (defense of other property)

Answer 43

Deadly force may never be used in defense of property.

Reasonable, nondeadly force may be used to defend property in one’s possession from what they reasonably believe is an imminent, unlawful interference. But force may not be used for requests to desist or refrain from activity.

Can’t try to regain your property by force / take the law into your own hands. It’s only upon immediate pursuit that you have any chance of force being valid.

Question 44

Defenses (duress)

Answer 44

Defense to crime, other than intentional homicide, that D reasonably believed another person would imminently inflict death or great bodily harm upon them or a member of their family if D did not commit crime.

A number of states now allow a threat to property to give rise to a duress defense, assuming that the value of the property outweighs the harm done to society by the commission of the crime.

Question 45

Defenses (necessity)

Answer 45

Defense that D reasonably believed commission of crime was necessary to avoid imminent and greater injury to society.

At common law, it had to be natural forces like an earthquake.

Limitation on faults: no necessity defense if D is the one that’s at fault in creating the situation that required the choice b/w the two evils.

Question 46

Defenses (mistake or ignorance of fact)

Answer 46

Relevant to criminal liability if it shows D lacked state of mind required for crime.
-Specific intent –> mistake can be unreasonable.
-Any other state of mind –> mistake must be reasonable.

Question 47

Defenses (mistake or ignorance of law)

Answer 47

Generally not a defense.

Question 48

Defenses (entrapment)

Answer 48

Occurs if the intent to commit the crime (1) originated not with the D but with LE officers and (2) D was not predisposed to commit the crime prior to contact by the gov’t.

E.g. undercover officer buying/selling drugs –> in this sort of fact pattern, the D will almost always have some predisposition to commit the crime. So very high bar for defense.

Question 49

Offenses involving judicial procedure (perjury)

Answer 49

(1) Intentional
(2) with regard to a material matter

Subornation of perjury: procuring or inducing another to commit the perjury.

Question 50

Offenses involving judicial procedure (bribery)

Answer 50

Common law: corrupt payment receipt of anything of value in exchange for official action.

Modern statutes: may be extended to non-public officials in either the offering of a bribe.

Question 51

“Governmental conduct” under 4A

Answer 51

-Police officers
-Governmental agents
-Private individuals acting at direction of police (e.g. police informant or cooperator); but e..g mall cops don’t qualify.

Question 52

Standing to object under 4A

Answer 52

Reasonable expectation of privacy with respect to place searched or item seized. Determination based on totality of circumstances.

When person has reasonable expectation of privacy:
-Person owned or had right to possess place searched
-Placed searched is person’s home
-Person is overnight guest of owner

Question 53

Core requirements for valid SW

Answer 53

-Probable cause
-Particularity: warrant must describe with particularity place to be searched and items to be seized; but SWs can be anticipatory (the item will be there).

A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant.

Question 54

Warrant execution

Answer 54

-Only police may execute warrant
-No third parties can accompany warrant execution unless identifying stolen property
-Violation of knock and announce rule will NOT result in suppression of evidence. No announcement needs to be made if the police reasonably suspect that knocking and announcing would be dangerous or futile or inhibit the investigation.

-Absent exigent circumstances, the police executing an arrest warrant may not search for the subject of the warrant in the home of a third party without first obtaining a separate search warrant for the home. If the police do execute an arrest warrant at the home of a third party without obtaining a search warrant for the home, the arrest is still valid but evidence of any crime found in the home cannot be used against the owner of the home because it is the fruit of an unconstitutional search.
-BUT the arrested party can’t have the evidence of stuff found on their person (SILA) excluded just because police didn’t have search warrant for that home, because the arrested party can’t raise a violation of somebody else’s 4A rights at your own suppression hearing.

Question 55

A seizure requires…

Answer 55

…a physical application of force (e.g., handcuffing or otherwise subduing a person) OR submission to an officer’s show of force.

Question 56

Exceptions to search warrant requirement (SILA)

Answer 56

-Police can search AFTER valid arrest
-Police can make protective sweep of area if they believes accomplices may be present
-Search must be contemporaneous in time and place w/ arrest
-But can’t do SILA w/o warrant if the arrest itself is unconstitutional
-Geographic scope limitation: only person and the areas within the person’s wingspan (e.g. where they can easily reach for weapons)
-Car: police may search passenger compartment incident to arrest if: (1) arrestee is unsecured and may gain access to vehicle, or (2) police reasonably believe evidence of offense for which was person was arrested may be found.

Technological searches:
-Warrantless breath test permitted, but NOT blood test.
-Physical attributes of cell phone may be searched, but NOT data.

Search incident to incarceration or impoundment: Police may make an inventory search of the arrestee’s belongings, including car and containers within the car, pursuant to established department procedure.

Question 57

Exceptions to search warrant requirement (automobile)

Answer 57

If police have probable cause to believe vehicle contains fruits, instrumentalities, or evidence of a crime, they may search entire vehicle and any container that might reasonably contain the item.
-Make sure there is probable cause for each particular container to be searched! (E.g. if probable cause that stolen TVs are in van, you can’t search a small satchel in the car.)

Probable cause necessary to justify search of car CAN arise after car is stopped.

Merely being a passenger in someone else’s car doesn’t create a legitimate expectation of privacy with regard to a search of the car. You do have standing to challenge the STOP (b/c both you and the driver were seized).

Question 58

Exceptions to search warrant requirement (plain view)

Answer 58

Police may make warrantless seizure when:
-Legitimately on the premises
-Discover evidence, contraband, or fruits or instrumentalities of crime
-See evidence in plain view
-Have probable cause to believe item is evidence, contraband, or fruits or instrumentalities of crime

Question 59

Exceptions to search warrant requirement (consent)

Answer 59

Warrantless search is valid if police have voluntary consent.
-Police saying they have a warrant negates consent, so that if the warrant turns out to be invalid, your consent doesn’t let LE off the hook.

-Any person with apparent equal right to use or occupy property may consent.
-Occupant can’t give valid consent when co-occupant is present and objects.
-If co-occupant is removed for unrelated reason, police may act on consent of remaining occupant.

Question 60

Exceptions to search warrant requirement (Terry stop & frisk)

Answer 60

Terry stop: brief detention for purpose of investigating suspicious conduct.
Terry frisk: pat down of outer clothing and body to check for weapons, UNLESS the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing.
-Officer may seize any item that officer reasonably believes, based on plain feel (“manipulated feel” = invalid), is weapon or contraband.

Question 61

Exceptions to search warrant requirement (automobile stops)

Answer 61

If officer believes driver or passenger may be armed and dangerous, officer may:
-Frisk suspected person
-Search vehicle in areas where weapon may be placed

Question 62

Exceptions to search warrant requirement (evanescent evidence)

Answer 62

Evidence that might disappear quickly if police took time to get a warrant.

Question 63

Exceptions to search warrant requirement (hot pursuit)

Answer 63

Police in hot pursuit of a fleeing felon may make warrantless search and seizure and may pursue suspect into private dwelling.

Question 64

Exceptions to search warrant requirement (emergency aid/community caretaker)

Answer 64

Police may enter premises w/o warrant if officer faces emergency that threatens health or safety.

Question 65

Exceptions to search warrant requirement (administrative searches)

Answer 65

E.g. drug test of public school kids for extracurriculars; airplane passengers before boarding.

Public school search reasonable if:
-Offers moderate chance of finding evidence of wrongdoing.
-Measures reasonably related to search objectives.
-Search not excessively intrusive in light of age and sex of student and nature of infraction.

Question 66

Eavesdropping and wiretapping

Answer 66

Generally a search that needs a warrant, but exceptions:
-Unreliable ear - speaker assumes risk other person consents to gov’t monitoring or is an informer.
-Uninvited ear - speaker has no 4A claim if they make no attempt to keep conversation private (no REP).

Question 67

Confessions

Answer 67

-Must be voluntary (determined by totality of circumstances).
-Harmless error test applies –> conviction need not be overturned if overwhelming evidence of guilt.

Question 68

6A right to counsel

Answer 68

-Applies to all critical stages of prosecution after judicial proceedings have begun.
-There can be no 6A violation BEFORE formal proceedings have begun (e.g. arrested but not yet charged –> no 6A right to counsel).
-6A right is offense-specific -> police can ask you q’s about other offenses.
-Invocation of right to counsel must be unambiguous. All questioning must cease until counsel has been provided, unless detainee: waives right to counsel OR is released back to normal life and 14 days have passed since release.

-Waiver of right to counsel must be knowing, intelligently made, and voluntary. I.e. D must be aware of the nature of the charges, the range of punishment, and the disadvantages of self-representation + is not being forced to choose b/w incompetent counsel and self-representation.

Stages when 6A right to counsel applies (but even if violated, can be used to impeach D’s trial testimony):
-Post-indictment interrogation
-Prelim hearings to determine probable cause to prosecute
-Arraignment
-Post-charge lineups (attaches as soon as the accused is within sight of a potential identification witness)
-Guilty plea and sentencing
-Felony trials
-Misdemeanor trials when imprisonment actually imposed
-Overnight recesses during trial
-Appeals as matter of right
-Appeals of guilty pleas

Stages when 6A right does NOT apply:
-Blood sampling
-Taking of handwriting or voice examplars
-Precharge or investigative lineups
-Photo IDs
-Prelim hearings to determine PC to detain
-Brief recesses during D’s testimony
-Discretionary appeals
-Parole and probate revocation proceedings
-Post-conviction proceedings

Question 69

Miranda warnings

Answer 69

-Required when person in custodial interrogation.
-Necessary only if detainee knows they are being interrogated by gov’t agent.
-Waiver must be knowing and voluntary.

Requirements:
(1) Custody: whether reasonable person would feel free to terminate interrogation and leave; whether environment presents same inherently coercive pressures as station house questioning.
-Drivers generally not in custody during traffic stops.
(2) Interrogation: any words or conduct by police that they should know would likely elicit an incriminating response; Miranda warnings not required before spontaneous statements by suspect.
-NOT interrogation when D makes spontaneous statement/blurts something out not in response to interrogation/questioning.

Person must be told:
-Right to remain silent
-Anything said can be used against them in court
-Right to attorney
-If person can’t afford attorney, one will be appointed

Effect of Miranda violation:
-Evidence generally inadmissible
-Statements may be used to impeach D’s trial testimony but not used as evidence of guilt.
-A confession obtained in violation of Miranda, but otherwise voluntary, can be used for the limited purpose of impeaching a defendant who testifies at trial. In contrast, an involuntary confession cannot be used to impeach.
-If detainee gives police info that leads to nontestimonial evidence (e.g. finding murder weapon based on what detainee’s statements) –> evidence will be suppressed if failure to give Miranda warnings was purposeful but likely admitted if failure not purposeful.

Public safety exception: police can interrogate w/o Miranda warnings when reasonably prompted by concern for public safety.

Question 70

Invocation of right to remain silent

Answer 70

-Must be unambiguous (sitting there and not answering questions is NOT sufficient)
-Police must scrupulously honor request by not badgering detainee

Question 71

Exclusionary rule

Answer 71

Unconstitutionally obtained evidence excluded at trial.
-Fruit of the poisonous tree: evidence obtained from exploitation of unconstitutionally obtained evidence.

Question 72

Exceptions to fruit of poisonous tree doctrine

Answer 72

-Fruits derived from statements in violation of Miranda
-Evidence obtained from independent source
-Attenuation: causal link b/w police misconduct and evidence is broken
-D’s intervening act of free will (e.g. D returns to police station and confesses a couple of days after initial illegal arrest)
-Inevitable discovery
-Violation of knock and announce rule

Question 73

Limitations on the exclusionary rule

Answer 73

-Inapplicable to grand juries unless evidence was obtained in violation of the federal wiretapping statute.
-Inapplicable at parole revocation proceedings.
-Civil proceedings
-Only violated state law or agency rules.
-Good faith reliance [on defective warrant], but four exceptions:
-(1&2) affidavit so lacking in probable cause and/or
particularity no reasonable officer would rely on it
-(3) officer or prosecutor lied to or misled
magistrate
-(4) magistrate is biased and wholly abandoned
neutrality.

Question 74

Use of illegally obtained evidence for impeachment

Answer 74

-Voluntary confession taken in violation of Miranda admissible for impeachment

Question 75

Harmless error test

Answer 75

If illegal evidence admitted, conviction should be overturned on appeal unless gov’t can show beyond a reasonable doubt that error was harmless

Question 76

Grand jury proceedings

Answer 76

Not required by 5A, but some states require them.

-Conducted in secret.
-D has no right to notice or right to confront witnesses.
-No right to counsel.
-No right to have evidence excluded.
-No right to challenge subpoena on 4A grounds.
-Conviction from indictment issued by grand jury from which minority group excluded will be reversed.

Question 77

Speedy trial factors (to see if violated)

Answer 77

-Length of delay
-Reason for delay
-Whether D asserted right
-Prejudice to D

Right doesn’t attach until D has actually been arrested or charged.

Question 78

Defendant may waive right to counsel if:

Answer 78

-Waiver is knowing and intelligent
-Defendant is competent to proceed pro se

Question 79

Ineffective assistance of counsel

Answer 79

-Deficient performance by counsel
-But for the deficiency, result of proceeding would have been different
-Allegations of ineffectiveness need to be specific (can’t just say “my attorney is inexperienced).

Question 80

Confrontation Clause

Answer 80

Right to confront and question witnesses testifying against you.

Exceptions/limitations:
-Not required when such confrontation serves an important public purpose: insulating a child witness from trauma of testifying; disruptive D.

In a joint jury trial (tried before same jury on charges related to same facts), a D’s right to confrontation is violated when:
-the court admits a co-D’s out-of-court statement that implicate the other D in the crime AND
-the co-D does not testify at trial and cannot be compelled to testify due to his 5A privilege

Co-defendant’s confession may be admitted if:
-All portion referring to other D can be eliminated
-Confessing D takes stand and is subject to cross, or
-Confession used to rebut D’s claim that confession was obtained coercively

Prior testimonial evidence not admitted unless:
-Declarant unavailable and
-D had opportunity to cross declarant at time statement was made

Question 81

Reasons to set aside plea

Answer 81

-Involuntariness
-Lack of jurisdiction
-Ineffective assistance of counsel
-Failure to keep plea bargain

Plea bargain enforced against prosecutor and defendant but NOT judge, who doesn’t have to accept plea.

Question 82

Double jeopardy (5A)

Answer 82

Person may not be re-tried for same once jeopardy has attached, which attaches:
-Jury trial: empaneling and swearing of jury
-Bench trial: when first witness is sworn / judge starts hearing evidence

Exceptions:
-First trial ends in hung jury
-Manifest necessity to abort first trial (e.g. D has heart attack in the middle of trial). But watch out for mistrials that were NOT necessary.
-D successfully appealed conviction (unless ground for reversal was insufficient evidence)
-D breached plea bargain
-D could have been tried for multiple charges in single trial but chose to have offenses tried separately.
-Trials by separate sovereigns (state and federal gov’t; two different states). But state and its municipalities = same sovereign.
-Double jeopardy does not prohibit the imposition of cumulative sentences for two or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even though constituting the “same” crime under the Blockburger test (i.e., each offense does not require proof of some additional fact that the other does not) when the punishments are imposed at a single trial. Absent a clear intention, it is presumed that multiple punishments are not intended for offenses constituting the same crime under Blockburger.

Two crimes are the same offense unless each crime requires proof of additional element that other does not.

Lesser included offenses:
-Attachment of jeopardy for greater offense bars retrial for lesser included offense
-Attachment of jeopardy for lesser included offense bars retrial for greater offense
-E.g. robbery = larceny + assault. Thus, if D tried for robbery, cannot be retried later for the lesser included offense of larceny. (All the elements of larceny are included in the elements of robbery!)
-EXCEPTION: unlawful conduct that is subsequently used to prove the greater offense has not occurred at the time of the prosecution for the lesser offense OR has not been discovered despite due diligence.

The Double Jeopardy Clause prohibits retrying a defendant whose conviction has been reversed on appeal for any offense more serious than that for which she was convicted at the first trial. This right is violated by retrial for a more serious offense, even if at the second trial the defendant is only convicted of an offense no more serious than that for which she was convicted at the first trial.

Question 83

5A privilege against self-incrimination

Answer 83

-Can be asserted by any person (not corp) in any type of case when answer to question might tend to incriminate them
-Must claim in civil proceedings for statements to not later be used in criminal proceedings; otherwise you forfeit the privilege.

Scope of protection:
-Being required to give one’s name after Terry stop does NOT violate 5A
-Testimonial/communicative evidence protected, but not physical evidence (e.g. blood, DNA, hair, documents).

Prosecutor may not comment on D’s silence after receiving Miranda warnings or at trial. If suspect remains silent before Miranda warnings, silence can be used against them.
-BUT prosecutor can comment on D’s failure to take stand when in response to defense’s assertion that D was not allowed to explain story.

Question 84

Use and derivative use immunity

Answer 84

Guarantees that witness’s testimony and evidence located because of testimony will not be used against witness.

If gov’t prosecutes a person who was granted use and derivative use immunity, it can only use evidence obtained from an independent source - NOT any evidence derived from D’s immunized testimony.

Question 85

Immunized testimony

Answer 85

Testimony obtained by a promise of immunity is coerced and therefore involuntary.
-May NOT be used for impeachment of D’s testimony at trial.
-But can be used in a trial for perjury.

Question 86

Waiver of 5A privilege

Answer 86

-D waives by taking witness stand
-Witness waives by disclosing incriminating information

Question 87

5A versus 6A right to counsel

Answer 87

5A = before formal charges have been filed against you. So once you exercise your attorney right, police can’t question you in their absence at all.
6A = often specific, i.e. after formal charges and you have your attorney there, they can’t question you about the SPECIFIC charge.

Question 88

A sentencing factor is considered an element of a criminal offense when…

Answer 88

it would increase the statutorily imposed sentencing range (if proven). Therefore, when 6A right to a jury trial has been invoked, the factor can only be imposed if a jury finds that the prosecution has proven it beyond a reasonable doubt.

Question 89

Mistake of fact is a defense if that misbelief…

Answer 89

(1) would have justified the D’s criminal act had the belief been true or (2) negates the requisite mens rea for the charged crime. But it is never a defense to strict liability crimes.

Mistake of law, meanwhile, is almost never a criminal defense.

Question 90

Statutes protecting certain class

Answer 90

If a statute is intended to protect members of a limited class from exploitation or overbearing, members of that class are presumed to have been intended to be immune from liability, even if they participate in the crime in a manner that would otherwise make them liable.

E.g. statute enacted with the express purpose of preventing public employees from taking advantage of the status of undocumented immigrants, making it a felony to accept money or other benefits in exchange for issuing a state identification card.
-If undocumented immigrant offered a clerk $500 in exchange for a card, and the clerk accepted, the immigrant is not subject to conviction because of the legislative intent to exempt him.

Question 91

8A

Answer 91

Forbids imposing a sentence of life in prison without the possibility of parole on a juvenile defendant convicted of a nonhomicide offense.

Death penalty cannot be imposed on an accomplice to felony murder who did not kill or intend to kill - UNLESS the accomplice significantly participated in the underlying felony and acted with reckless indifference to human life.

Question 92

Possession offenses

Answer 92

Require proof that the D (i) knowingly received an illegal item or (ii) exercised dominion and control over the item after learning of its illegal character.