Criminal Law and Procedure

Question 1

Elements of a Crime

Answer 1

1. Actus Reus
2. Mens Rea
3. Concurrence of Actus Reus and Mens Rea
4. Causation (only for crimes that require a result, like homicide)

Question 2

Actus Reus

Answer 2

1. Voluntary Physical Act: VOLUNTARY and PHYSICAL act
2. Omission of an Act: generally no legal duty to rescue, but duty to rescue CAN arise by statute, contract, relationship, voluntarily assuming duty then failing to perform, or causing the peril. Defendant must have knowledge of the facts giving rise to the duty to act, and it must be reasonably possible to perform the duty.
3. Act of Possession: (i.e. drug possession). Possession need not be exclusive to one person, and need only be located in area within D’s control. State of Mind: Generally just must be aware of possession, not necessarily illegality, BUT if statute says “KNOWINGLY POSSESS,” then D must know identity or nature of item.

Question 3

Common Law Mens Rea

Answer 3

The mental state required for the crime

1. Specific Intent to do the act : (students can always fake a laugh, even for ridiculous bar facts) Solicitation, Conspiracy, Attempt, False Pretenses, Assault, Larceny, Embezzlement, First Degree Murder, Robbery, Burglary, Forgery
2. Malice Aforethought: homicides and arson require reckless disregard of a substantial risk that the particular harmful result will occur.
3. General Intent: awareness of all factors constituting the crime, and general awareness of acting in a manner prohibited by law. Includes battery, rape, kidnapping, false imprisonment
4. Strict Liability: no intent is required to criminalize the conduct. Includes statutory rape, selling alcohol to minors, bigamy in some jurisdictions. Defenses that negate state of mind/intent CANNOT be used for SL crimes. (i.e. consent, mistake of fact.)

Question 4

MPC Mental States

Answer 4

1. Purposely: conscious object/aim to engage in prohibited conduct.
2. Knowingly: awareness that conduct is of a particular nature or will cause a particular result. Willful blindness is not an excuse. D may be deemed to possess “knowledge” if he DELIBERATELY avoids discovering the facts when he can readily do so.
3. Recklessly: conscious disregard of a substantial known risk.
4. Negligently: failure to be aware of a substantial known risk.

Question 5

Transferred Intent

Answer 5

1. Intent to commit a crime against one person can be TRANSFERRED to a different person or object who was actually affected. Applies to: battery, homicide, arson
2. Person will be guilty of two crimes: COMPLETED crime against the ACTUAL victim (person who gets hurt) and ATTEMPT crime against INTENDED victim (spared person).
3. Defenses and mitigating circumstances are also transferrable.

Question 6

Enterprise Liability

Answer 6

Under modern law, corps may be held liable for act performed by…

1. AGENT of corporation acting within SCOPE of his office or employment; OR
2. Corp’s agent high enough in hierarchy to presume his acts REFLECT the corporation’s policy.

Question 7

Vicarious Liability

Answer 7

Person without fault or intent of crime may be held liable for criminal conduct of another (usually an employee).

Question 8

Merger

Answer 8

1. CL: if person’s conduct constituted both felony and misdemeanor, misdemeanor merged into felony. Could only be convicted of felony.
2. Modern law: NO MERGER (charge for 2 crimes)
3. Exceptions:
   (1) SOLICITATION MERGES with the completed crime (only charged for 1 crime)
   (2) ATTEMPT MERGES with the completed crime (only charged for 1 crime)

(3) But conspiracy does NOT merge. May be convicted of conspiracy to commit offense and offense itself (charged for 2 crimes).
(4) Cannot be convicted of more than one of SOLICITATION, ATTEMPT, AND CONSPIRACY in the commission of the same offense

Question 9

Parties to a Crime

Answer 9

1. CL Distinctions:
   (1) Principal in the 1st degree: person who actually engaged in the act.
   (2) Principal in the 2nd degree: person who aids, advises, or encourages.
   (3) Accessory before the fact: assisted but WAS NOT PRESENT.
   (4) Accessory after the fact: assisted in escape with knowledge that felony was committed.
   Note: conviction of principal REQUIRED for conviction of others.
2. Modern approach: ALL PARTIES to crime may be guilty of principal offense.
   (1) Principal: person who commits act or causes innocent agent to do so.
   (2) Accomplice: person who intentionally aids, advises, encourages principal to commit illegal act. Liable for principal crime.
   (3) Accessory after the fact: person who assisted in escape with knowledge that he committed a felony.

Question 10

Solicitation

Answer 10

1. Actus: Asking someone to commit a crime.
2. Merger: If person AGREES to do it, solicitation MERGES into CONSPIRACY.
3. Mens Rea: INTENT to have the solicited person commit the crime. DO NOT need affirmative response. Solicitation is committed after the question is ASKED.

4 Defenses? None. NOT a defense that: person solicited is not convicted, offense solicited could not have been successful, solicitor renounces or withdraws solicitation.

Question 11

Conspiracy

Answer 11

1. An agreement between two or more people (modern approach is that only one party needs to have genuine criminal intent) with intent to enter into the agreement and intent to achieve the unlawful objective (modern approach requires an OVERT ACT in furtherance of the conspiracy)
2. Wharton Rule: “It Takes Two to Tango” if 2 or more people are necessary for the commission of the SUBSTANTIVE offense, there is NO crime of conspiracy unless MORE PARTIES participate in the agreement. (i.e. adultery, dueling, sale of contraband)
3. Each conspirator is liable for ALL FORESEEABLE (i.e. natural and probable consequence of the conspiracy) crimes of the OTHER co-conspirator committed in FURTHERANCE of the conspiracy.
4. • No Merger: Conspiracy and the complete crime are distinct offenses – 2 CRIMES IF COMPLETED (i.e. conspiracy does not merge with the completed crime)
5. Defenses: None.
   Factual impossibility: NOT a defense.
   Withdrawal: NOT a defense to the conspiracy itself because a conspiracy is complete upon agreement + act in furtherance, BUT withdrawal CAN be a defense to crimes committed in FURTHERANCE of the conspiracy. Must perform AFFIRMATIVE ACT that notifies all members of withdrawal, and in time for members to abandon their plans, and must NEUTRALIZE the assistance.

Question 12

Attempt

Answer 12

1. Specific intent to commit a crime; AND Overt act taken beyond mere preparation, but crime must not be completed or else it merges into the crime
   CL: proximity test that requires act be dangerously close to success. (look back from the crime, how close did you get?)
   MPC: substantial step towards commission of crime. (look forward, how many steps did you take toward the crime?)

Defenses: Legal impossibility - when intended to commit acts that are NOT a crime under ANY circumstances.
Factual impossibility: NOT a defense (when substantive crime is incapable of completion due to some physical or factual condition unknown to the defendant)
Abandonment: Majority Rule (CL), NOT a defense if a substantial step has already been taken. BUT MPC: abandonment is a defense if it is fully voluntary AND it is a complete renunciation of criminal purpose

Question 13

Felony Murder

Answer 13

1. Murder that occurs during commission of inherently dangerous felony (BARRK: Burglary, Assault, Robbery, Rape, Kidnapping)
2. D must be guilty of underlying felony.
3. Felony must be distinct from the killing (i.e. if battery kills someone, it’s not distinct.)
4. Death must be FORESEEABLE result of felony. Deaths caused while FLEEING from felony are foreseeable. If D has reached point of temporary safety, any deaths thereafter cannot be felony murder.
5. Co-felon killed: D is NOT LIABLE under Felony Murder if CO-FELON is killed as a result of resistance from victim or police.
6. Innocent parties killed?
   Agency theory (CA, majority): D not liable for Felony Murder when innocent party is killed by someone other than felon or co-felon, unless death is caused by D or his agent.
   Proximate cause theory (minority): D may be liable when innocent party is killed by victim or police or anyone else

Question 14

Causation for Homicide

Answer 14

1. D’s conduct must be both the CAUSE IN FACT and the PROXIMATE CAUSE of the victim’s death
   Cause in fact: victim would not have been killed but for D’s conduct
   Proximate cause: victim’s death was a natural and probable consequence of the conduct
2. Can be an act that hastens an inevitable result or the product of simultaneous acts that independently may be sufficient to cause a single result (ignore victim’s preexisting fragility)
3. 1 year 1 day rule (MOSTLY ABOLISHED) – Traditionally, for a defendant to be liable for homicide, the death of the victim must occur within one year and one day from infliction of the injury or wound.
4. Intervening acts: generally a break in the chain of causation relieves D of liability for V’s death. Exceptions: negligent medical care and the V’s refusal of medical treatment are both foreseeable and defendant is still liable

Question 15

Homicide

Answer 15

1. Common Law Murder: Murder is the unlawful killing of another human being with malice aforethought. Malice Aforethought is 1) intent to kill, 2) intent to commit substantial bodily harm, 3) reckless indifference to unjustifiably high substantial risk to human life 4) intent to commit a felony (felony murder) such as burglary, assault, robbery, rape, kidnapping (BARRK)
2. Statutory First Degree Murder: STATUTORY murder with specific intent to kill, made with PREMEDITATION and DELIBERATION. Sometimes includes felony murder of enumerated felonies BARRK
3. Statutory Second Degree Murder: Depraved Heart Murder, includes intent to kill (without premeditation/deliberation), intent to cause SBH, reckless indifference to an unjustifiable and high risk to human life, or intent to commit a non-enumerated felony (but is still inherently dangerous)
4. Voluntary Manslaughter: the intentional killing under circumstances of ADEQUATE PROVOCATION. Provocation is adequate if 1. there is a sudden and intense passion in the mind of an ordinary person that would cause him/her to lose control, 2. D was provoked, 3. there was no time to cool off, and 4. D did not in fact cool off between provocation and killing.
5. Involuntary Manslaughter: Unintentional homicide committed with NEGLIGENCE; OR During commission of an unlawful act

Question 16

Battery

Answer 16

1. Unlawful application of HARMFUL or OFFENSIVE force; On the PERSON of another. Resulting in bodily injury or offensive touching
2. No specific intent required. General intent crime.
3. Simple battery = misdemeanor.
   Aggravated battery = felony (includes Battery with a DEADLY WEAPON, Battery resulting in SERIOUS BODILY INJURY, Battery of child, woman, or police)

Question 17

Assault

Answer 17

1. The intentional creation of REASONABLE APPREHENSION of IMMINENT harm, Other than by mere words (If there has been actual touching, this turns into BATTERY)
2. Simple assault = misdemeanor
   Aggravated assault = felony (including assault with a DEADLY WEAPON, or with intent to RAPE or MAIM or MURDER)

Question 18

Mayhem

Answer 18

Under common law, the dismemberment or disablement of a bodily part

Question 19

False Imprisonment

Answer 19

1. Unlawful CONFINEMENT of a person (i.e. no alternative routes); Without his valid CONSENT.
2. MPC requires that confinement must “interfere substantially” with V’s liberty. It is NOT confinement to simply prevent someone from going where they decide to go, so long as ALTERNATIVE ROUTES are available to her.

Question 20

Kidnapping

Answer 20

1. Unlawful confinement of person involving either Some MOVEMENT of the victim to another place; OR CONCEALMENT of victim in a “secret” place.
2. Aggravated kidnapping = kidnapping for ransom, Purpose of committing other crimes, Offensive purposes, or Child stealing

Question 21

Rape

Answer 21

1. Non-consensual sexual intercourse; By a non-spouse (estranged OK); Without effective consent.
2. NO effective consent when: Actual force is used, Threats of great/immediate bodily harm, Victim incapable of consent due to unconsciousness, intoxication, or mental condition, Victim is fraudulently caused to believe act is NOT intercourse.
3. Effective consent when: i.e. perpetrator persuades victim that he is her husband or will marry her

Question 22

Statutory Rape

Answer 22

1. Intercourse with female under age of consent
2. Defendant is strictly liable
3. Not a defense that victim consents or there is a mistake of fact of the victim’s age

Question 23

Other Sex Crimes

Answer 23

Incest
Seduction
Bigamy (strict liability)

Question 24

Larceny

Answer 24

1. Larceny is the taking and carrying away (asportation) of another’s personal property by trespass or by trick with the specific intent to permanently deprive that person of the property at the time of taking away the property.
2. 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.
3. Must have Intent to permanently DEPRIVE at same TIME OF TAKING. BUT Continuing Trespass Doctrine: If D wrongfully takes property without intent to permanently deprive, but later decides to keep property, still guilty of larceny.
4. Original taking of the property must be wrongful (knew it was someone else’s). So, it is not larceny if the original taking was not wrongful (thought it was yours), and later decide to keep, NOT larceny.

Question 25

Embezzlement

Answer 25

1. Embezzlement is the fraudulent conversion of another’s personal property, while in lawful possession of that property (trustee embezzling money from someone else’s trust)
2. Must have intent to defraud; If intend to restore exact property taken, then it’s not embezzlement.

Question 26

False Pretenses

Answer 26

1. False pretenses is when someone obtains title to the personal property of another by an intentional false statement of past or existing fact with the intent to defraud the other.
2. Can’t have an intent to defraud someone if you subjectively believe the property is your own
3. Difference from larceny by trick: larceny by trick defrauds other person into giving mere possession of property. False pretenses = take title of someone’s money.

Question 27

Robbery

Answer 27

1. Robbery is the taking and carrying away of personal property of another by force or threats of immediate physical injury (to victim, family, or person in the victim’s presence) with the intent to permanently deprive them of the property.
2. Armed Robbery – robbery with a weapon, or simulated weapon (pretending to have one)

Question 28

Extortion

Answer 28

1. CL: corrupt collection of unlawful fee by officer under color of office.
2. Modern: blackmail, obtaining property by means of THREAT to do harm or EXPOSE information. Doesn’t have to be imminent, can be FUTURE harm.

Question 29

Receipt of Stolen Property

Answer 29

1. Receipt of stolen property occurs when someone receives possession and control of stolen personal property KNOWN to have been obtained in a criminal manner by another person with the intent to permanently deprive them of that personal property.
2. Possession = manual possession not necessary, can put in location designated for D or arranges a sale for thief to 3rd person.
3. Stolen = must be stolen at time D receives it. If police have already recovered property and use it with owner’s permission, it’s NO LONGER STOLEN, D not guilty of receipt of stolen property. However, D can still be charged with ATTEMPT if he believed it was stolen.

Question 30

Forgery

Answer 30

1. Forgery is the making or altering (by drafting, adding, or deleting) a writing with legal significance so that it is false with the intent to defraud.
2. Document represents something that it’s NOT, rather than merely containing contents with a misrepresentation

Question 31

Burglary

Answer 31

1. Burglary is the breaking (physically, fraud, intimidation) & entering into a dwelling of another (structure used for sleeping purposes) at night with the intent to commit a felony therein, even if the felony is not completed.
2. Intent to commit felony must be present AT TIME OF ENTRY.
3. Going through wide open door is not breaking, but opening a door to a bedroom could be breaking

Question 32

Arson

Answer 32

Arson is the MALICIOUS (intentional or reckless disregard of substantially risk) burning of the dwelling/structure of another.

Question 33

Perjury

Answer 33

Perjury is the intentional taking of a false oath (lying) in regard to a material matter (that is, one that might affect the outcome of the proceeding) in a judicial proceeding.

Question 34

Bribery

Answer 34

1. Common law: corrupt payment or receipt of anything of value for official action.
2. Under modern statutes, it may be extended to nonpublic officials, and either the offering of a bribe or the taking of a bribe may constitute the crime.

Question 35

Insanity Defense

Answer 35

Burden of Persuasion: the state can require (as federal courts do) that D prove the defense by CC OR by PPE (lesser burden of proof)

Several tests to determine whether a person is insane:

1. M’Naughten Rule: At time of conduct, D had MENTAL DISEASE or DEFECT causing him to either NOT KNOW that his act was wrong; OR NOT UNDERSTAND the nature and quality of his actions. Shorthand: “D doesn’t know right from wrong.”
2. Irresistible Impulse Test (self-control test): At time of conduct, D had a MENTAL DISEASE or DEFECT making him either unable to CONTROL his actions; OR CONFORM his conduct to the law. Shorthand: “Impulse that D can’t resist.”
3. Durham Test (products test): Crime was product of D’s mental illness. (i.e., disease was but-for cause of disease.) Shorthand: “but-for.”
4. MPC Test (M’Naughten + Irresistible Impulse): At time of conduct, D had a MENTAL DISEASE or DEFECT, and as a result, lacked the SUBSTANTIAL CAPACITY to APPRECIATE the CRIMINALITY of his conduct (know it was wrong); OR CONFORM his conduct to the requirements of the law. (volitional). Shorthand: combination.

Question 36

Intoxication Defense

Answer 36

1. Voluntary intoxication (negates intent): result of self-induced intentional taking, without duress, of substance known to be intoxicating.
2. Involuntary intoxication (INSANITY): Consuming an intoxicating substance either unknowingly or involuntarily. This includes (i) without knowledge, (ii) under duress, or (iii) pursuant to medical advice while unaware of its intoxicating effects. This is A defense to all crimes, including strict liability. This is treated as mental illness and D is entitled to acquittal if he meets INSANITY test.

Question 37

Infancy Defense

Answer 37

Child under 7 – no liability.
Age 7-14 – rebuttable presumption of NO liability.
14 or older – treated as adults.

Question 38

Self Defense

Answer 38

1. Non-Deadly Force by Victim: non-aggressor (victim) may always use non-deadly force if he REASONABLY believes force will be imminently used against him. No duty to retreat
2. Deadly Force by Victim: non-aggressor (victim) may use deadly force if she is (1) without fault, (2) confronted with unlawful force, and (3) reasonably believes that she is threatened with IMMINENT death/great bodily harm.
   Majority: no duty to retreat before using deadly force.
   Minority: victim must retreat before deadly force if victim can safely do so UNLESS (1) attack occurs in own home; (2) attack occurs while (police officer) lawfully arresting someone; (3) in process of being robbed or raped
3. Imperfect Self Defense (some jx): If D kills in self-defense but not all 3 of the requirements for the use of deadly force are met (like the other person actually didn’t have a gun and there was no imminent danger) some states will lessen the conviction to manslaughter rather than murder under imperfect self-defense doctrine
4. Aggressor may only use FORCE in self-defense if either 1) The aggressor effectively withdraws from altercation and communicates to other the desire to do so; OR 2) Victim of initial aggression suddenly ESCALATES the minor fight into a deadly fight, and initial aggressor has NO CHANCE to withdraw.

Question 39

Defense of Others

Answer 39

1. D has the right to defend others if she reasonably believes that the person assisted has the legal right to use force in his own defense (i.e. just steps into the shoes of the person who can assert defense)
2. Only need REASONABLE APPEARANCE of right to use force
3. When resisting arrest, only non-deadly force may be used.
4. Majority: do not need a special relationship between the D and the person in whose defense D acted, while minority view require some familial relationship

Question 40

Defense of a Dwelling

Answer 40

1. Non-Deadly Force: allowed to protect your dwelling with non-deadly force if it is reasonably necessary to stop someone from unlawfully entering or attacking your dwelling
2. Deadly Force: ONLY allowed to Prevent VIOLENT ENTRY made with INTENT to ATTACK inhabitant (person); OR Prevent entry to commit felony in dwelling.

Question 41

Defense of Property in Possession

Answer 41

1. Non-Deadly Force: allowed to use non-deadly force to defend property in your possession that you reasonably believe there will be an unlawful, imminent interference with it.
2. Deadly Force is NEVER allowed.
3. Regaining Possession: Force can be used to REGAIN possession of wrongfully taken property ONLY IF in IMMEDIATE HOT PURSUIT of the taker.

Question 42

Crime Prevention

Answer 42

1. Non-Deadly Force: may be used if reasonably necessary to prevent felony or serious breach of peace.
2. Deadly Force: may be used only to TERMINATE or PREVENT DANGEROUS FELONY involving risk to HUMAN LIFE.

Question 43

Use of Force in Arrest

Answer 43

1. By police officers:
   Non-Deadly Force: may be used if reasonably necessary to effectuate an arrest.
   Deadly Force: may be used if necessary to prevent FELON’S ESCAPE AND officer reasonably believes that the felon threatens DEATH or SBH.
2. By private persons:
   Non-Deadly Force: may be used if crime was ACTUALLY committed, and the person has REASONABLE grounds to believe arrestee has committed the crime.
   Deadly Force: may use only if the arrestee ACTUALLY COMMITED the crime for which the arrest was made.

Question 44

Resisting Arrest

Answer 44

1. Non-Deadly Force: allowed to resist IMPROPER arrest.
   Minority & MPC: no resisting a known police officer
2. Deadly Force: allowed as justification if person did NOT KNOW it was an OFFICER.

Question 45

Necessity Defense

Answer 45

1. Must have REASONABLE BELIEF that committing the crime was NECESSARY to avoid an IMMINENT and GREATER injury to society than ACTUAL crime.
2. Objective test; good faith belief is NOT enough, must be reasonable.
3. Limitation: causing death is NEVER justified. No necessity if D is AT FAULT in creating the situation

Question 46

Duress Defense

Answer 46

1. Duress is a defense to a crime if D REASONABLY believed that IF D did not act/commit the crime, that person would IMMINENTLY inflict DEATH or SBI upon D or member of family (3rd person).
2. Exception: NOT a defense to intentional HOMICIDE.

Question 47

Mistake of Fact Defense

Answer 47

1. Relevant if it shows that D lacked state of mind required for crime. (i.e. larceny “I thought that was my property!”)
2. Specific Intent Crimes: ANY mistake is ok, whether reasonable or unreasonable.
3. General Intent / malice crimes: only REASONABLE mistakes are allowed.
4. Strict Liability crimes: mistake of fact NEVER allowed.

Question 48

Mistake of Law Defense

Answer 48

NOT A DEFENSE to claim that a defendant thought his action was not a crime, but it actually is a crime.

Question 49

Impossibility Defense

Answer 49

1. Applies when D failed to complete crime because of mistaken belief of facts, and is being charged with attempt
2. Factual Impossibility: NOT a defense. When D engages in conduct while mistaken about certain circumstances, and had the circumstance been what he believed they were, what he wanted to do would be a crime.
3. Legal Impossibility: VALID defense. When the D did, or intended to do, acts that would NOT constitute a crime under any circumstances.

Question 50

Consent

Answer 50

1. Only a defense if the crime requires lack of consent
2. Consent must be freely and voluntarily given; Party was legally capable of consenting; AND No fraud was involved in obtaining the consent.

Question 51

Exclusionary Rule

Answer 51

1. Under the EXCLUSIONARY RULE, Unconstitutionally obtained evidence is inadmissible at trial, as are the fruits of such evidence, UNLESS in 1. grand jury proceedings, 2. civil proceedings, 3. parole revocation proceedings, 4. there was a violation of the knock and announce rule, or 5. it is used to impeach a defendant’s trial testimony
2. D is entitled to have admissibility of evidence determined as matter of law by JUDGE (NOT as matter of fact by jury). Gov has burden to establish admissibility by preponderance of the evidence
3. A conviction will NOT NECESSARILY be overturned because improperly obtained evidence was admitted at trial. On appeal, a court will apply the HARMLESS ERROR TEST: gov must show Beyond Reasonable Doubt that the error was harmless. Under the test, a conviction WILL BE UPHELD if the conviction would have still resulted despite the improper evidence.

Question 52

Fruit of the Poisonous Tree Doctrine

Answer 52

1. Illegally seized evidence, but also ALL evidence obtained or derived stemming from the illegally seized evidence, must be excluded.
2. Fruit of the poisonous tree may still be admissible IF:
   1) it can be obtained through an INDEPENDENT SOURCE
   2) It would have been INEVITABLY DISCOVERED anyways
   3) There was an INTERVENING ACT OF FREE WILL on the part of the defendant that breaks the link between police conduct and evidence
   4) Fruits were derived from statements in violation of Miranda that did not result from a wrongful or bad faith violation
   5) Evidence was derived from a violation of the knock and announce

Question 53

4th Amendment

Answer 53

1. The 4th Am protects citizens from unreasonable searches and seizures.

Question 54

Seizure

Answer 54

Seizure occurs when a reasonable person believes that he is not free to leave

Question 55

Search

Answer 55

1. WIRETAPPING & EAVESDROPPING: All wiretapping and eavesdropping is a search that requires a WARRANT. Exceptions: “unreliable ear” (speaking to an friend that is wired) and “uninvited ear” (someone eavesdropping while no attempt to KEEP THE CONVERSATION PRIVATE)
2. Police can’t use technological enhancements that aren’t available to the public. (e.g., thermal imaging binoculars) or else it is a search
3. Cell Phones: Police cannot look through someone’s cellphone without a warrant. They can inspect the exterior, but cannot scroll through the data of someone’s phone.

Question 56

Arrests

Answer 56

1. An arrest is a type of seizure through taking a person into custody for purposes of interrogation or crim prosecution.
2. Arrest must be based on Probable Cause. Need probable cause to get an arrest warrant.
3. In a Public Place: Warrant is generally not required before arresting someone in a public place. True even if police had time to get a warrant.
   At Home: However, a non-emergency arrest of an individual in his home does require an arrest warrant.

Question 57

Probable Cause

Answer 57

1. There is substantial probability based on trustworthy facts/circumstances for a reasonable person to believe that suspect has committed or is committing a crime, or that contraband or evidence of a crime will be found in the area searched.
2. Use of Informant: if an officer’s affidavit is based on an informant’s tip, its sufficiency is determined by a Totality of Circumstances. Relevant factors: reliability, credibility, and basis of knowledge of informant. Informant may be anonymous.
3. A dog sniff is not a search, and can provide probable cause for police to search/seize

Question 58

Was there Government Conduct?

Answer 58

1. Government conduct includes actions by PUBLICLY PAID police, on or off duty. Privately paid police actions DO NOT constitute gov conduct UNLESS they are DEPUTIZED with the POWER TO ARREST. Ex: Store security guards, campus police.
2. A PRIVATE individual acting at the DIRECTION of the public police is government conduct

Question 59

Standing / Reasonable Expectation of Privacy

Answer 59

1. A plaintiff has standing to exclude evidence from a wrongful search or seizure if
   (1) D OWNED the premises searched. (2) D LIVED AT premises searched, whether he had ownership interest or not. (3) D was an OVERNIGHT GUEST of owner of place searched.
2. Even if you own the property seized, you have standing only if you have a REP in the ITEM or AREA searched (you don’t have REP in your items placed in someone else’s purse)
3. NO STANDING IN:
   Abandoned property
   The sound of your voice.
   The style of your handwriting.
   The paint on the outside of your car.
   Account records held by a bank.
   Monitoring the location of your car on a public street or in your driveway. (BUT if police put a GPS locator ON your car, this is a SEARCH)
   Anything that can be seen across the “OPEN FIELDS.”
   Anything that can be seen from flying over in public air space.
   The odors emanating from your luggage or car.
   Your garbage set out on the CURB for collection.

Question 60

Valid Warrant Requirements

Answer 60

1. Probable Cause and PARTICULARITY, issued by NEUTRAL MAGISTRATE, and executed by police without UNREASONABLE DELAY.
2. An affidavit claiming there is probable cause will be INVALID if D establishes there is a False statement, Affiant INTENTIONALLY or RECKLESSLY included the false statement; AND False statement was MATERIAL to finding of PC.
3. Particularity: The warrant must state with reasonable particularity the PLACE TO BE SEARCHED and the THINGS TO BE SEIZED. Search and seizure must be within the scope of the warrant.

Question 61

Knock and Announce Rule

Answer 61

1. Knock and Announce Rule: police must knock and announce purpose, and wait reasonable time for admittance.
2. If violated, the evidence found can still be admitted
3. Exception: An officer does not need to K&A if knocking and announcing would be DANGEROUS, FUTILE, or INHIBIT the investigation through DESTRUCTION of EVIDENCE.

Question 62

Good Faith Reliance on an Invalid Warrant

Answer 62

1. An officer’s GOOD FAITH RELIANCE on a search warrant that has defects is still valid
2. Still not valid if
   (1) The affidavit underlying that warrant is SO LACKING IN PC that no reasonable police officer would have relied on it.
   (2) The affidavit underlying the warrant is so LACKING IN PARTICULARITY that no reasonable police officer would have relied on it.
   (3) Bad faith: Police officer or prosecutor LIED TO or MISLED the magistrate when seeking the warrant.
   (4) Magistrate is Biased and therefore has wholly abandoned his or her neutrality
   (5) Evidence obtained in a manner that shocks the conscience— in other words, a manner that offends a “sense of justice”—is inadmissible under the Due Process Clause.

Question 63

Warrant Exceptions

Answer 63

1. Search incident to arrest
2. Automobile Exception
3. Plain View exception
4. Consent
5. Terry Stop and Frisk
6. Exigent Circumstances (destruction of evidence, hot pursuit)
7. Special Needs Searches
8. Warrantless Administrative Searches

Question 64

Search Incident to Arrest

Answer 64

1. A police can search a person immediate after a lawful arrest based on probable cause. The arrest must be lawful (based on PC)
2. SITA and Automobiles Gant Rule: the police may search the interior of the auto incident to arrest ONLY IF
   Option 1: The arrestee is unsecured and still may gain access to the interior of the vehicle; OR
   Option 2: The police reasonably believe the evidence of the offense FOR WHICH THE D WAS ARRESTED may be found in the vehicle.
3. Scope of Search: The person and the areas in to which he CAN REACH (within the person’s wingspan) either to PROCURE A WEAPON or to DESTROY Evidence.
4. Limitations: Police cannot look through someone’s cellphone without a warrant. Police officers may administer a warrantless breath test for DUI purposes incident to arrest, but they may not administer a warrantless blood test
5. Result: so long as the search is valid, ANY contraband/evidence of illegal activity found will be admissible, even if it is different than what gave rise to the reasonable belief.

Question 65

Automobile Exception

Answer 65

1. If police have PC to believe that car contains evidence of a crime (before they search), police can search the ENTIRE car and ANY CONTAINER that might REASONABLY CONTAIN the item for which they had PC to search.
2. If only have PC to search a container in vehicle, can only search container and not the rest of the car.

Question 66

Plain View Exception

Answer 66

police may make warrantless seizure of items if:

(1) The police are LEGITIMATELY PRESENT at the location at the time the item is seized (cannot be a wrongful search)
(2) See evidence in PLAIN VIEW without touching it
(3) It is IMMEDIATELY APPARENT that the item is contraband or fruit of a crime.

Question 67

Consent to Search/Seizure Exception

Answer 67

1. A person can consent to search or seizure. For consent to be valid, the consent must be VOLUNTARY and INTELLIGENT. It is not voluntary if police lie and say they have a warrant but they do not
2. Scope of search limited to scope of consent.
3. Authority to consent: where 2 or more people have an EQUAL RIGHT to use a piece of property, either can consent to its warrantless search. However if both people are present, and one person consents to the search and the other doesn’t, then the one who DOESN’T CONSENT controls. If a co-occupant who does not consent to a search is removed from the premises for a reason unrelated to the refusal (e.g. a lawful arrest), the police may search upon consent of the other occupant.

Question 68

Terry Stop and Frisk

Answer 68

1. police may STOP (briefly seize) a suspect if they have Reasonable Suspicion of criminal activity. May FRISK (light search) the suspect to check for WEAPONS if there’s Reasonable Suspicion that they’re armed and dangerous. May FRISK THE VEHICLE so long as it’s limited to the areas in which a weapon may be placed (Chimel style).
2. Reasonable Suspicion: articulable and reasonable suspicion of criminal activity.
3. Limitation on frisk: in order to remove item, must reasonably believe that item is a weapon by PLAIN FEEL, no manipulation
4. if PC arises during terry stop, then detention can become AN ARREST, and officer can conduct a full search incident to that arrest.

Question 69

Exigent Circumstances

Answer 69

1. Destruction of Evidence: police do not need warrant if there is evidence that MIGHT DISAPPEAR QUICKLY if the police took the time to get a warrant. (Ex: An officer can scrape a D’s fingernails without getting a warrant, or breath test from drunk driver
2. Hot pursuit of fleeing felon: police in hot pursuit of a fleeing felon may make a warrantless search and seizure, and may even pursue the suspect into a private dwelling. the police must be within 15 MINUTES behind the fleeing felon, or else it is NOT a valid hot pursuit exception. if police are truly in hot pursuit, they can enter anyone’s home without a warrant, and any evidence they see in PLAIN VIEW will be ADMISSIBLE. They’ll be legitimately present!
3. Many states recognize the COMMUNITY CARETAKER exception to the Gant rule, which justifies a warrantless search if an officer faces an emergency that threatens the HEALTH or SAFETY of an individual or the public.

Question 70

Inventory Search Exception

Answer 70

3. Before incarceration of an arrestee, or impounding of the car, the police may search (1) the arrestee’s personal belongings AND/OR (2) the arrestee’s ENTIRE VEHICLE. This includes any closed containers in the vehicle.

Question 71

Public School Searches

Answer 71

1. Public school children engaged in EXTRACURRICULAR ACTIVITES can be randomly drug tested, Including: school dances even count, football, chess club, yearbook
2. Warrantless searches of public school children’s EFFECTS, such as PERSONS and or BACKPACKS is permissible to investigate violations of school rules if there is reasonable suspicion for search. Only reasonable if It offers a MODERATE CHANCE of finding evidence of wrongdoing; The measures adopted to carry out the search are REASONABLY RELATED to the objectives of the search; AND The search is NOT EXCESSIVELY INTRUSIVE.

Question 72

Administrative Searches

Answer 72

1. Private Residences & Commercial Buildings: Inspectors must have a WARRANT for searches of private residences and commercial buildings, but the PC required to obtain a warrant is more lenient for other searches
2. Warrantless Administrative Searches: These searches have been upheld without a warrant because there is a special interest:
   • To seize spoiled food
   • Of a business in a highly regulated industry
   • Industry searches of arrestees
   • Searches of prisoners before being admitted into general prison population
   • Airline passengers
   • Parolee and their homes
   • Government employees’ desks
   • Drug tests of railroad employees in an accident
   • Drug tests of persons seeking customs employment in positions connected to drug interdiction
   • Drug tests of public school students who participate in extracurricular activities

Question 73

Voluntariness of Confession under 14A

Answer 73

For any confession/self-incriminating statement to be admissible at trial, it must be VOLUNTARY. Only INVOLUNTARY if there’s official coercion. Mental illness does not count.

Standard: Totality of Circumstances

Question 74

5A Privilege Against Self-Incrimination

Answer 74

The 5th A guarantees freedom against compelled self-incrimination. Under the 5th Am, a suspect must receive Miranda warnings prior to custodial interrogation by the police. Statements obtained as a result of custodial interrogation without Miranda warnings are usually inadmissible at trial.

Question 75

Custodial Interrogation

Answer 75

1. Trigger for required Miranda warnings: CUSTODIAL INTERROGATION by GOV AGENT.
2. Custody: a reasonable person would NOT feel free to leave. Probation interviews and routine traffic stops ≠ custodial.
3. Interrogation: any conduct where the police knew or should have known that they might elicit an incriminating response from the suspect.
4. **Miranda warnings are NOT required prior to spontaneous statements.
5. Police can interrogate without Miranda Warnings when reasonably prompted by a concern for public safety
6. Miranda warnings only necessary if D KNOWS a gov agent is interrogating. Undercover informant not covered by Miranda

Question 76

Miranda Warnings

Answer 76

1. You have a right to remain silent (RRS);
2. Anything you say can be used against you in court;
3. You have the right to an atty (RTC); and
4. If you can’t afford an atty, one will be appointed for you if you so desire.
   * *Note: doesn’t need to be verbatim so long as substance is conveyed.

Question 77

Miranda Waiver

Answer 77

1. A Miranda waiver must be KNOWING, VOLUNTARY, and INTELLIGENT.
2. Courts will employ a TOC test to determine if knowing, voluntary, and intelligent.
3. Break in Interrogation: If a D has validly waived his rights, there is generally no need to repeat the warnings because of a break in interrogations UNLESS the time lapse has been so long that a failure to do so would seem wrong.

Question 78

Invoking Right to Remain Silent

Answer 78

1. If D UNAMBIGUOUSLY invokes right to remain silent, police must STOP questioning.
2. Invoking the right to silence must be UNAMBIGUOUS. Mere silence is not enough.
3. Police may REINITIATE questioning after the D has invoked the RRS IF
   1) Police wait a significant amount of time; AND
   2) D IS RE-MIRANDIZED; AND
   3) Questions are limited to a crime that was NOT THE SUBJECT OF THE EARLIER QUESTIONING.

Question 79

Invoking Right to Counsel

Answer 79

1. if D UNAMBIGUOSLY invokes 5A RTC, police must STOP ALL QUESTIONING (any offense) until either:
   Option 1: D is given an attorney, or
   Option 2: D initiates further questioning
   Option 3: it has been 14 days since break in custody.
2. The request for counsel can only be invoked by an UNAMBIGUOUS REQUEST. (does not invoke right if you say “maybe I should get a lawyer now” or “I think I should get a lawyer now”)
3. NOT OFFENSE SPECIFIC. Police may NOT even question about a TOTALLY UNRELATED CRIME

Question 80

Evidence obtained in Violation of Miranda Rights

Answer 80

1. Evidence obtained in violation of Miranda is usually inadmissible at trial under the exclusionary rule.
2. Exception: statements obtained in violation of Miranda may be used to IMPEACH D’s TRIAL TESTIMONY, but can’t be used as evidence of guilt.
3. Exception: non-testimonial evidence that was uncovered based on statements obtained in violation of Miranda may be used, as long as the failure to provide Miranda Rights was not WRONGFUL ON PURPOSE, just accidental

Question 81

6A RIGHT TO COUNSEL

Answer 81

1. The 6A guarantees a defendant’s right to be represented by private counsel, or to have counsel appointed for him by the state if he is indigent, at all critical stages of a criminal prosecution after formal proceedings have begun. Must be invoked or waived after miranda warnings are read to the defendant
2. Once D IS CHARGED (charged, arraigned, indicted), 6A Right to Counsel attaches. Critical stages of prosecution – RTC guaranteed: Post-indictment interrogation, Preliminary hearings to determine PC to prosecute, Arraignment, Post-charge lineups (ENTIRE lineup), Sentencing, Felony trials. But NO RTC because not a critical stage of prosecution when Taking blood samples, Taking handwriting samples, Taking fingerprints, Photo ID, Pre-charge lineup, Brief recess during D’s testimony at trial, Parole and probation revocation proceedings
3. Once 6A RTC attaches and there is no waiver, police cannot deliberately elicit incriminating statements from D outside of presence of counsel.
4. 6A right to counsel is OFFENSE SPECIFIC. D can be questioned regarding unrelated, uncharged offenses. Offenses considered unrelated if one requires proof of an additional element that the other doesn’t.

Question 82

6A Confrontation Clause

Answer 82

1. When two people are tried together and co-D has given a confession that implicates the other, 6th A right to confront adverse witnesses prohibits use of such a statement unless an exception applies.
2. 6th A requires non-confessing D to be given an opportunity to confront witnesses on cross and non-confessing D cannot compel the confessing D to take the stand for cross-ex at their joint trial
3. BUT: The confessing D’s confession may be admitted if either
   Option 1: All portions relating to the non-confessing D can be eliminated (so that there is no indication of the co-D’s involvement)
   Option 2: the confessing D takes the stand and subjects himself to cross-ex with respect to the truth or falsity of the statement
   Option 3: the confession of the non-testifying D is being used to rebut the confessing D’s claim that the confession was obtained coercively, in which case the jury must be instructed only to answer the question of admissibility

Question 83

Pre-trial Identification

Answer 83

1. D has 6A right to presence of atty for any POST-CHARGE line-up or show-up (one on one).
2. D can attack pretrial ID techniques if they are 1) Unnecessarily suggestive and
   2) there is a substantial likelihood of misidentification.
3. Remedy for Unconstitutional Identifications: The victim or witness will NOT be allowed to identify the person in court.
4. Independent Source Exception: Despite an illegal lineup/pre-trial ID, a witness may make an in-court ID if in-court identification has an INDEPENDENT SOURCE.
   Factors of independent source:
   1) opportunity to observe at time of crime 2) Ease with which W can identify the D 3) existence or absence of prior misidentification

Question 84

Pre-trial Procedures

Answer 84

1. Bail - suspect Usually has right to be released on bail unless it’s a capital crime, D poses a danger, or would fail to appear at trial. Refusal to grant bail or excessive setting of bail is immediately appealable.
2. INCOMPETENCY TO STAND TRIAL: based on mental condition at time of trial
3. Grand Juries - Exclusionary rule does NOT apply to the conduct of grand juries, so a grand jury witness may be compelled to testify based on ILLEGALLY SEIZED evidence. The proceedings of grand juries are SECRET. D has no RIGHT TO APPEAR, INTRODUCE E, or SEND IN WITNESSES.
4. 6A RIGHT TO SPEEDY TRIAL: Right to speedy trial attaches upon arrest or charge. Standard of whether it’s been violated: TOC. Factors: length of delay, reason for delay, whether D asserted his right, and prejudice.
5. Exculpatory Information - A prosecutor’s failure to disclose exculpatory evidence, whether WILLFUL or INADVERTENT, violates the DP clause and may be grounds for reversal of a conviction. D must prove that…1) The evidence is favorable to the D; AND 2) Prejudice resulted, meaning there is a REASONABLE PROBABILITY that the result would have been different had the info been disclosed.

Question 85

Defendant’s Rights in Trial

Answer 85

1. RIGHT TO AN UNBIASED JUDGE. Bias = judge has a FINANCIAL INTEREST in the outcome of the case OR some ACTUAL MALICE against the D.
2. 6A RIGHT TO A JURY TRIAL: constitutional right to a jury attaches anytime the D is tried for an offense for which the max authorized sentence EXCEEDS 6 MONTHS. There is NO federally protected constitutional right to 12 juror verdict. The minimum number of jurors permissible is 6. The verdict must be UNANIMOUS.
3. Right to Peremptory Challenges: A peremptory challenge is a challenge to exclude a prospective juror for any reason whatsoever. Test: Whether a prospective juror should be excluded for cause based on whether his views would prevent or substantially impair the performance of her duties. Cannot exercise peremptory challenges to dismiss prospective jurors on account of race or gender.
4. 6A Right to Counsel: Crim D’s right to counsel applies to all critical stages of a prosecution, including trial. Ineffective assistance of counsel requires that there was deficient performance by counsel and, but for such deficiency, the result of the proceeding WOULD HAVE BEEN DIFFERENT (prejudicial). Typically, such a claim can only be made out by specifying PARTICULAR ERRORS of trial counsel. Cannot just vaguely state that counsel did a bad job
5. Right to Self Representation: A D has the right to defend himself so long as his waiver of trial counsel is KNOWING and INTELLIGENT, and he is COMPETENT to proceed pro se. A D can be found mentally competent to stand trial, yet incompetent to represent himself as determined by the TRIAL JUDGE’S DISCRETION
6. 5A Privilege Against Compelled Testimony: The 5th A guarantees freedom against compelled self-incrimination
7. RIGHT TO CONFRONT WITNESSES (confrontation clause)
   However, The absence of face-to-face confrontation between the D and the witness does NOT violate 6A when preventing such confrontation SERVES AND IMPORTANT PUBLIC PURPOSE and THE RELIABILITY OF THE WITNESSES TESTIMONY IS OTHERWISE ASSURED.

Question 86

5A Privilege Against Compelled Testimony

Answer 86

1. The 5th A guarantees freedom against compelled self-incrimination.
2. Who may assert the privilege: 5A privilege against self-incrimination can be asserted by anyone in ANY TYPE of case. Anyone asked a question under oath in any kind of case, wherein the response might tend to INCRIMINATE HIM is entitled to a 5A privilege.
3. When privilege may be asserted: You must assert that privilege the FIRST TIME the question is asked or you will have WAIVED your 5A privilege for all subsequent crim prosecutions. The privilege must be claimed in CIVIL PROCEEDINGS to prevent the privilege from being waived for a later CRIMINAL prosecution.
4. Scope of Protection: 5A protects citizens from COMPELLED TESTIMONY, not physical evidence (hair, blood, voice, handwriting samples can e compelled)
5. It is unconstitutional for the prosecutor to make a negative comment on the D’s FAILURE TO TESTIFY or on a D CHOOSING TO REMAIN SILENT after being given Miranda warnings. Exception: the prosecutor CAN comment on the D’s failure to take the stand when the comment is in response to DEFENSE COUNSEL’S assertion that D was NOT allowed to explain his side of the story. When a prosecutor impermissibly comments on D’s silence, the HARMLESS ERROR test applies, and thus, the prosecutor’s conduct may not be fatal to an otherwise sound conviction.
6. No 5A privilege if:
   1) W is given adequate immunity from prosecution.
   2) No possibility of incrimination because the SoL has run on the underlying crime
   3) Waiver: The criminal D who TAKES THE WITNESS STAND waives the 5A privilege as to all legitimate subjects of cross examination

Question 87

Burden of Proof in Criminal Trials

Answer 87

1. Innocence is presumed
2. State must prove guilt beyond a reasonable doubt, must prove every element of the crime
3. Burden may be on defendant to prove affirmative defenses
4. Presumption that shifts burden of proof to defendant violates 14th amendment

Question 88

Taking the Plea

Answer 88

1. If a D pleads guilty, Judge must 1) find that plea was voluntary and intelligent and 2) specifically address the D on the record about the following: The nature of the charge; the max authorized penalty, any mandatory minimum penalty; The right to plead NOT guilty and to demand a trial. Remedy: if fail to meet these standards, remedy is withdrawal of plea, new plea.
2. COLLATERAL ATTACKS ON GUILTY PLEAS AFTER SENTENCING. Plea can be set aside if…
   1) The plea was INVOLUNTARY 2) Lack of jurisdiction;
   3) Ineffective assistance of counsel;
   4) Failure of the prosecutor to keep AGREED UPON PLEA BARGAIN.

Question 89

Plea Bargaining

Answer 89

1. Plea bargain will be enforced against prosecutor and D, but not against judge, who doesn’t have to accept the plea.
2. Guilty plea is NOT INVOLUNTARY just because it was entered in response to prosecution’s threat to charge D with more serious crime if he didn’t plead guilty.

Question 90

Death Penalty

Answer 90

(1) Must be imposed under statutory scheme that gives JURY reasonable discretion, full information, and guidance
(2) No death penalty for rape
(3) Any death penalty statute that doesn’t give the D a chance to present MITIGATING FACTS AND CIRCUMSTANCES is unconstitutional .
(4) There can be NO AUTOMATIC CATEGORY for imposition of the death penalty.
(5) The state may NOT by statute limit the MITIGATING FACTORS; all relevant MITIGATING evidence must be admissible or the statute is unconstitutional.
(6) Only a JURY (not a judge) may determine the aggravating factors justifying imposition of the death penalty.
(7) Cannot impose death penalty on person who was minor when they committed the crime, otherwise it violates 8A: cruel+ unusual punishment
(8) Cannot execute a prisoner who is insane at the time of execution

Question 91

Double Jeopardy

Answer 91

1. D cannot be retried for same offense after a determination on the merits in the same sovereign
2. Two crimes do NOT constitute the same offense if each crime requires proof of AN ADDITIONAL ELEMENT that the other doesn’t
3. Separate sovereigns include State and federal governments or Two different states. Same sovereigns include state and its municipalities
4. Jeopardy attaches 1) in a JURY trial when the jury is empaneled and sworn in 2) in a BENCH trial, jeopardy attaches when the first witness is sworn in. Jeopardy does NOT generally attach when the proceedings are CIVIL.
5. Attachment of jeopardy for a GREATER OFFENSE bars retrial for lesser included offenses. Attachment of jeopardy for a LESSER OFFENSE usually bars retrial for greater included offenses. Exception: if person is tried and convicted on charge of battery, and victim later does die to those injuries, D can get prosecuted for murder.
6. Exception: If charges can be tried in a single trial, but D consents to having two separate trials, there is no double jeopardy violation.
7. Retrial is allowed without violating double jeopardy when 1) Jury is unable to agree upon a verdict (hung jury); 2) Acquittal / dismissal of case based on technical error (not on the merits); 3) D requests and is granted a mistrial; 4) Mistrials for manifest necessity (medical emergency of D, hung jury, misconduct by D); 5) A retrial after a successful conviction; 6) Defendant breaches the plea bargain.

Question 92

Habeas Corpus

Answer 92

a writ requiring a person under arrest to be brought before a judge or into court, especially to secure the person’s release unless lawful grounds are shown for their detention.

1. No right to appointed counsel
2. Petitioner has burden of proof to show unlawful detention by preponderance of evidence
3. Defendant must be in actual custody to bring habeas corpus proceeding
4. This is a civil proceeding