Criminal Law and Procedure Flashcards
Larceny
Larceny is the (1) trespassory taking and carrying away of (2) person’s tangible personal property (3) with the intent to permanently deprive the other of his interest in the property.
Trespassory taking
Larceny
Trespassory taking is taking of the property without the owner’s consent.
Carrying away
Larceny
Carrying away means to remove the item from where it was (even by an inch)
Intent to Permanetly Deprive
Larceny
Intent to permanently deprive must be formed at or before the time of the taking unless continuing trespass
Continuing trespass
Larceny
continuing trespass occurs where the item is initially taken wrongfully, and the intent to permanently deprive occurs later.
e.g., defendant takes the victim’s car for a joyride, and then decides later not to return it).
Embezzlement
Embezzlement is the (1) fraudulent conversion (2) of the other’s property (3) by a person in lawful possession of that property.
The taking is not trespassory because embezzler is in lawful possession of the property and thus holds it with consent. Instead, any use inconsistent with the trust position is conversion.
False Pretenses
False pretense is obtaining title from the other’s property by an past or existing, intentional or knowing false statement of fact with the intent to defraud the other.
—
False Pretenses consist of (1) obtaining title (2) to the property of another (3) by an intentional or knowing false statement of past or existing (but not future) fact (4) with the intent to defraud the other.
The false or fraudulent statement must cause the owner to part with title.
Larceny by Trick
Larceny by Trick consists of (1) obtaining possession (2) to the property of another (3) by an intentional or knowing false statement of past or existing (but not future) fact (4) with the intent to defraud the other.
not rule
When the Money is Title
False pretense v. Larceny by Trick
When money is falsely obtained and used for another purpose is larceny by trick and not false pretenses. Money is not title until it is used for what the giver of the money intends.
Hypo: The accused tells the victim he is going to take the money and give it to X to buy a car for the victim.
If accused keeps it for himself, that is larceny by trick since the title did not ever pass by giving it to X.
But, if the accused gives it to X and X does not buy the car but keeps the money and gives himself a kickback, that’s false pretense.
Robbery
Robbery is the taking of other’s personal property from the other’s person or presence by force or threat of force with the intent to permanently deprive the other of his interest in the property.
—
Robbery is the (1) taking of personal property of another (2) from the other’s person or presence (3) by force or threat of force (4) with the intent to deprive the other of his interest in the property permanently.
Larceny is a lesser-included offense – a defendant cannot be convicted of both Robbery and Larceny.
Receipt of Stolen Property
Receipt of stolen property is obtaining stolen property with intent to permanently deprive the true owners of the property after receiving possession and control of it, knowing that the property was obtained by crime other committed or supplier did not have the right to the property.
—
Receipt of stolen property consists of (1) Receiving possession and control of stolen property; (2) known to (a) have been obtained by use of a crime by another person or (b) that supplier did not have the right to property; (3) with the intent to permanently deprive the true owner of the property.
Forgery
Forgery consists of making or altering false writing of apparent legal significance with the intent to defraud.
Forgery v. not forgery
not rule
Forging a letter from the President to a friend that does not bear on policymaking ==> it has no legal significance ==> not forgery
Making of a forged check has legal significance ==> purported demand on the bank to pay the bearer of the check ==> forgery
Extortion
Extortion is the obtaining of property or another thing of value by means of oral or written threats. The threat need not be immediate harm but also future harm. The property does not need to be taken from the victim’s immediate presence.
Modern Rule
Burglary
Burglary is the entering and breaking into the other’s dwelling at night with the intent to commit felony therein. Felony need not be committed. Entry obtained by threats or fraud is constructive breaking and entering.
–
Common law Rule: Burglary is the (1) breaking and (2) entering (3) of the dwelling of another (4) in the nighttime (5) with the intent to commit a felony therein. The felony need never be committed. Entry obtained by fraud or threat is constructive breaking and entry.
Breaking
Burglary
Breaking requires the use of any force, however slight, to gain entry without consent
Dwelling in the common rule
Burglary
Dwelling includes all the buildings within the curtilage of the house but the term have been expanded in meaning.
Arson
Arson is the malicious burning of the dwelling of another. The required damage by burning must be by fire.
Burning – charring, not scorching
Burning
Arson
The burning must be charring, not scorching.
“Of another”
Arson
refers to possession, and not ownership
Malice
Arson
Malice element requires either intent or reckless disregard.
Criminal Assault
There are two types of criminal assault:
- The attempt to commit a battery; or
- Intentional creation, by other than mere words, of a reasonable apprehension in the victim’s mind of imminent bodily harm
intentional creation of apprehension - scaring people away though not trying to scare you away
Attempt to Commit a Battery
The attempt to commit a battery is a specific intent crime. It requires the intent to commit a battery plus some overt act toward the completion of the crime.
Intentional Creation of Apprehension
Intentional creation of apprehension is a general intent crime. It merely requires the intent to cause apprehension, or reckless disregard.
Criminal Battery
Criminal Battery is the unlawful harmful or offensive touching to another without consent.
—
Criminal battery is the (1) unlawful application of direct or indirect force (2) to the person of another (3) resulting in (4) bodily injury or an offensive touching.
Aggravated Battery
Aggravated battery is the same elements for criminal battery and either:
(1) the use of a deadly weapon;
(2) serious bodily injury; or
(3) the victim is a child, woman, or police officer (in some states).
Mayhem
Dismemberment or disablement of body part.
Kidnapping
Kidnapping is the confinement of a person that also involves either: (1) movement of the victim or (2) concealment of the victim in a secret place. Only some movement is required.
Aggravated kidnapping
Aggravated kidnapping requires kidnapping for ransom, kidnapping for the purpose of committing other crimes, kidnapping for an offensive purpose (such as committing a sexual offense toward the victim), and the child stealing (which means leading, taking, enticing, or detaining a child with the intent to keep or conceal the child from a parent or guardian).
Rape
Rape is the unlawful carnal knowledge of a woman by a man who is not her husband. Statutes may define it differently, by, e.g., making it a crime for a husband to commit rape of his wife.
Unlawful
Rape
Rarely tested on essay but frequent on MBE
Unlawful means without the victim’s consent. There is no lawful consent if intercourse is accomplished:
1. by force,
2. by a threat of great and immediate harm, or
3. where the victim is incapable of consenting, due to unconsciousness, drugs, intoxicating substances, or the victim’s mental condition.
Statutory Rape
Statutory rape is sexual relations with a minor under a specified statutory age. It is a strict liabiltiy crime. It does not matter whether the defendant knows the victim’s true age.
Homicide Analysis
not rule
- First analyze whether there is second-degree murder unless you are first asked about the first-degree murder
Option 1
- 2nd degree murder
- 1st degree murder
Option 2
- 1st degree murder
- 2nd degree murder
- Conclude on second-degree murder, before moving to consideration of first-degree murder
- Then, if facts support it, move to voluntary manslaughter.
2nd Degree Murder/Common Law Murder
(Second Degree) Murder is the (1) unlawful killing (2) of a human being (3) with malice aforethought.
Malice aforethought is a mental state, which can be shown four ways: (1) intent to kill, (2) intent to do great bodily injury, (3) reckless indifference to an unjustifiably high risk to human life, or (4) felony murder.
Felony murder means that the killing was committed during the course of a felony. Some states, such as California, limit liability on felony murder to the person actually committing the killing. Others do not, so that all the participants in the felony are guilty of felony murder.
Unlawful killing of a human being
2nd Degree Murder/Common Law Murder
A killing is unlawful if it is done without justification.
—
1. Without justification
2. Causation implicitly established unless defendant not the direct killer
Homicide – Causation
Causation is an issue when V does not die directly at D’s hand or would cause other harm not death –> discuss causation as part of unlawful killing and look to see if the death was the foreseeable result of D’s actions
e.g., of causation issue
defendants kidnapped the victim, one of them raped her, and she then committed suicide. In discussing whether they were guilty of her murder, because they didn’t kill her directly, you would need to discuss whether they caused her death—whether her suicide was the foreseeable result of defendants’ actions.
Malice aforethought
Malice aforethought is established by (1) intent to kill; (2) intent to inflict great bodily injury; (3) reckless indifference to the unjustifiably high risk to human life (“abandoned and malignant heart”); or (4) felony murder (killing committed in the course of commission of a dangerous felony).
Inference on intent to kill:
Intent to kill may be inferred:
1. from the killing,
2. the use of a deadly weapon, particularly if no other circumstances are given.
Transferred Intent
subrule - inference on intent to kill
Under transferred intent, when a defendant intends a harmful result to one person, but through his or her actions causes that harmful result to actual victim, the defendant is guilty of the crime because the mental state required for the intended victim “transfers” to the action that caused the harm to the actual victim.
—
Transferred intent: the intent to kill one person can be transferred to the actual killing of another.
1st Degree murder
[All murder is second-degree unless it is committed with premeditation and deliberation.] or
[First degree murder is the unlawful killing with malice aforethought, premeditation and deliberation.]
Deliberation requires that the act be committed coolly and dispassionately. Premeditation requires that the act be committed after a period of reflection (even brief). In some jurisdictions, first degree murder can also be charged where the murder takes place during the commission of an inherently dangerous felony, including armed robbery.
—
All murder is 2nd degree unless murder is done with premeditation and deliberation
Premeditation
1st Degree Murder
It means the act was committed after a period of reflection—which can be brief.
Deliberation
1st Degree Murder
It means it was committed coolly and dispassionately.
Felony Murder Tip
- First, decide whether the killing was caused by a felony,
- determine there was at least second-degree murder.
- Then, if the felony is on the list, discuss that it is raised to first degree felony murder.
Felony Murder
The felony in the felony murder can be any felony, and must be an act independent of the killing.
If co-felon is killed by victim or police:
1. Majority view: Not felony-murder
2. Minority view: This is felony-murder
Felony
Felony in the felony murder must be independent of killing.
2nd degree felony murder - don’t have to state it. it is under malice aforethought.
E.g., If the underlying felony is criminal battery, and the victim dies a result of the battery, there is no felony murder à murder based on intent to cause great bodily harm.
CA Felony Murder
Felony-murder only if:
1. Attempts, commits, or participates in felony and
2. Directly kills, or aids or abets in killing, or
3. On-duty police officer is killed in course of felony
First-degree felony-murder
sub-Rule under intent to kill
First-degree felony-murder includes the killing during an enumerated—usually highly dangerous—felony, such as arson, burglary, robbery, rape, or kidnapping. [and anything else a local statute might include)]
1st degree felony-murder on enumerated list
- burglary
- arson
- robbery
- rape
- kidnapping
- train robbery
- anything else listed in statute
2nd degree felony-murder
killings caused during all other non-enumerated felonies.
Voluntary Manslaughter
Voluntary manslaughter is the (1) intentional killing (2) of a human being (3) with adequate provocation.
In most modern common law jurisdictions, “mere words” can be adequate provocation if so determined by the jury.
Tip: If you determine there was either degree of murder, and if the call of the question seems to ask for it by asking what crimes or homicide defendant committed, ONLY THEN do you analyze for voluntary manslaughter.
Adequate Provcation
Voluntary Manslaughter
Adequate provocation requires (1) it be one that would arouse sudden and intense passion in the ordinary person’s mind so it causes one to lose self control; (2) defendant is in fact provoked; (3) insufficient time for passions of a reasonable person to cool; and (4) defendant in fact did not cool off.
mere words may provoked a person
but, objectively, words after a long time has passed is not reasonable.
Involuntary Manslaughter
Involuntary manslaughter involves either criminal negligence or misdemeanor manslaughter.
When to discuss involuntary manslaughter:
1. Murder and voluntary manslaughter require intent – intent to kill someone, even if not particular victim, since the doctrine of transferred intent applies.
2. If the death was not murder or voluntary manslaughter, but by some form of accident, only then do you consider involuntary manslaughter.
Criminal negligence
Involuntary Manslaughter
Criminal negligence requires a substantially greater deviation from the reasonable person standard of civil liability.
Misdemeanor Manslaugther
A killing caused by an unlawful act not a felony (misdemeanor). Misdemeanor does not have to be independent of the killing.
Attempt Crimes
An attempt requires (1) the intent to commit a specific crime and (2) an overt act in furtherance of that crime. Attempt is a specific intent crime. But intent can be infer from conduct.
Attempt jurisdiction
Proximity test - The proximity test measures the defendant’s progress by examining how close the defendant is to completing the offense. The distance measured is the distance between preparation for the offense and successful termination. It is the amount left to be done, not what has already been done, that is analyzed
dangerously close - when a person comes dangerously close to carrying out a criminal act, and intends to commit the act, but does not commit it
Merger
Attempt merges into completed crime – only charge the completed crime
Unlike Lesser included charge – both greater and lesser charges are included, but only convict of one
Inchoate Crimes
not rule
- Solicitation
- Accomplice liability
- Conspiracy
- Accessory after the fact
Tip: when the defendant is not the principal actor who commits the physical act constituting the crime, don’t analyze the underlying crime and its elements. Instead, analyze the possible inchoate crimes.
Conspiracy
A conspiracy requires an express or implied agreement between two or more persons to commit a crime with the intent to enter into the agreement and to achieve its objective. Most states also required an overt act in furtherance of the conspiracy, which can be mere preparation. All co-conspirators are liable for any acts of another co-conspirator that are foreseeable and in furtherance of the conspiracy.
impliedly agree to a conspiracy w/out full knowledge of the plan
sub-rule under an implied agreement btwn or persons to commit a crime
An agreement to commit a crime can be implied, and it does not require that the person be informed of all the details of the crime—they merely need to know that the act will be illegal, and agree to participate in it.
Co-conspirator’s Liability
Conspiracy
A conspirator is liable for the crimes of a co-conspirator that are foreseeable and in furtherance of the conspiracy.
Protected class exception
Conspiracy
if one of the conspirators is the victim of the crime and is in the protected class, there cannot be a conspiracy unless a third person is part of the conspiracy
E.g., of protected class – underage victim in charging statutory rape
a) no conspiracy if the rapist and victim agree to sexual relations, absent the involvement of a third person
b) thus, defendant is guilty only statutory rape, not conspiracy to commit statutory rape.
Wharton’s Rule
Conspiracy
if the crime requires two or more participants, another person in addition to the participants must enter into the agreement for there to be a conspiracy.
Unilateral theory -
with informant or undercover police officer
Conspiracy
Unilateral theory requires the defendant to have had the intent to conspire and commit the underlying crime.
—
If one actor is an informant or undercover police officer, also discuss the unilateral theory (which only requires the defendant to have had the intent to conspire and commit the underlying crime).
Bilateral theory -
both acts have criminal intent
Conspiracy
If both actors have criminal intent, use the bilateral theory of conspiracy (requiring an agreement between or among all the conspirators to commit the underlying crime).
In furtherance
Conspiracy
“In furtherance” means the act is necessary to accomplish the goal of the conspiracy
Withdrawal
Defense to Conspiracy
When one of the participants to a conspiracy wants to withdraw from a conspiracy, (s)he must take an affirmative action to withdraw from the conspiracy, before the objective of the conspiracy is complete, and communicate to all participants that (s)he is withdrawing. In some jurisdictions, (s)he must also take an affirmative step to prevent the crime from being completed.
Notice to other participants
subrule - Withdrawal
Notice to the other participants can be in any reasonable way
Accomplice liabilty and Co-conpsirator liability
put it in each crime that further conspiracy
For both accomplice liability and liability as a co-conspirator, the crime defendant committed must be foreseeable, with the additional requirement that it be in furtherance of the conspiracy to proceed against co-defendants as co-conspirators.
Solicitation
Solicitation occurs when: (1) Defendant incites, counsels, advises, induces, urges, or commands another person to commit a crime (2) with the intent that the crime be committed by that person. The crime is complete upon the solicitation, whether or not the other person commits the crime.
Accomplice Liability
Accomplice liablity requries: (1) Defendant encourages or assists another person who commits a crime (2) with the intent to promote or facilitate the commission of the crime. An accomplice is guilty of all foreseeable acts commited by the principal or other person in the commission of the crime.
Accessory after the fact
An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that person has committed a felony and helping the felon escape arrest, trial, or conviction.
Notice that mere comfort is not sufficient, unless it is with the purpose of help the felon escape arrest, trial, or conviction.
Self-Defense
A person may use deadly force if:
(1) he is without fault (didn’t initiate the assault or provocation);
(2) he is confronted with unlawful force – the victim had no legal right to use force on defendant; and
(3) he reasonably believes he is threatened with imminent death or great bodily harm.
Duty to Retreat
- The majority rule is there is no duty to retreat.
- The minority rule requires retreat only if it can be done in complete safety and does not require retreat from the home or business
—
Always discuss the duty to retreat (despite the majority rule)
Imperfect Self-Defense
If the defendant’s belief to the threat is unreasonable, [so that the third element of self defense is not met,] a finding of imperfect self-defense will mitigate murder to voluntary manslaughter.
Defense of Another
Defendant must reasonably believe the other person is legally entitled to use force and may only use reasonable force to prevent it.
[then discuss self-defense elements for other person]
–
A defendant is justified when it is necessary to defend the other person who is facing an unlawful imminent threat of bodily harm. Deadly force is only justified when there is a threat of death or grievous bodily harm. Some jurisdiction looks at whether the defendant’s belief was reasonable that the other person was being unlawfully attacked. If the defendant was reasonable but mistake, the defendant can still claim this defense. But in other jurisdiction, the defendant steps into the shoe of the victim and see whether the party was the first aggressor or failed to retreat when required by the law, the defendant has no defense.
—
Note: Regarding reasonable belief, discuss whether the other person could have asserted self-defense, using the elements of self-defense.
Necessity
Defendant must have a reasonable belief that their criminal conduct was necessary to avoid a greater harm to society. Defense is not available if defendant is at fault in creating the choice. Causing the death of others is never objectively reasonable.
Duress
Duress requires a threat, which defendant reasonably believes threatens death or great bodily harm. Duress is not a defense to homicide (murder and manslaughter).
Mistake of Fact
The mistake must be reasonable and must negate the required mental state for a crime.
Tip: A favorite area for MBE
Voluntary Intoxication
Voluntary intoxication is the intentional taking of a substance known to be intoxicating without duress. Voluntary intoxication is not a defense to general intent or malice crimes but to specific intent crimes, [including attempt, first degree murder, burglary, larceny, robbery, and all attempt crimes.]
Involuntary Intoxication
Involuntary intoxication is a defense to all crimes. It requires taking of a substance under direct duress, without knowledge of the substance’s nature, or pursuant to medical advice while unaware of the effect.
[after analysis]
Involutnary intoxication is treated as the insanity defenses. Thus, there are 4 tests for insanity.
—
Tip: Involuntary intoxication may be treated as insanity, in which case you must also discuss the four types of insanity defenses.
Insanity Defenses
Approach
- M’Naghten rule
- Irresistible impulse
- Durham Rule
- ALI/MPC Test
- If insanity is a possible defense, briefly describe all four types of insanity defense.
- If there are facts that support particular defenses, say so. Otherwise, simply describe each defense and then at the end conclude that if defendant demonstrates any of these defenses, defendant will be found not guilty by reason of insanity.
- All of them, however, do require evidence of a mental disease.
Four Insanity Defenses
How the rule is to be stated
The four types of insanity are M’Naughten Rule, irresistible impulse, Durham rule and ALI/MPC test.
look below to see each rule
M’Naghten Rule
**
A disease of the mind caused a defect of reason such that the defendant lacked the ability to either know the wrongfulness of his actions or understands the nature and quality of his actions.
Irresistible Impulse
**
Because of mental illness, a defendant is unable to control his actions or conform his conduct to the law
Durham Rule
**
This is but for causation – if the crime was a product of the mental disease or defect, this requires an acquittal
ALI/MPC test
**
Because of mental disease, defendant lacked substantial capacity to either appreciate the criminality of his conduct or to conform his conduct to the law.
4th amendment steps
no rule
- Was there govt conduct?
- Standing
- Expectation of privacy
- Was there a stop?
(a) Stop and frisk
(b) Police checkpoints - Searches, warrants, and arrests
- Major exceptions to warrant requirement
(a) Consent
(b) Automobile
(c) Plain view
(d) Search incident ot lawful arrest
(e) Protective sweep
(f) Inventory search
(g) Exigent circumstances
(h) Emergency aid exception
(i) Inevitable discovery
(j) Independent source
Remedy for 4th amendment violations
1. Exclusionary rule
2. Good faith exception
3. Impeachment
4th Amendment General Rule
4th amendment prohibits unreasonable searches and seizures.
Was there government conduct?
no rule; analysis
All claims of Fourth Amendment violations require government conduct.
—-
- Was there some type of police action (not private party)?
- Where the police direct a private citizen to act on their behalf, that citizen’s conduct is equivalent to government conduct?
Standing: Expectation of privacy
Under Katz, Defendant has standing to contest search or seizure when defendant has the existence of a reasonable expectation of privacy in the thing or place to be searched:
(1) is there a subjective expectation of privacy (did the Defendant actually expect privacy?);
(2) does society objectively consider there to be privacy in the thing or place to be searched?
Expectation of privacy
- Surveillance of the accused in an open area where there would be no expectation of privacy does not violate the 4th amendment.
- Searches in an open area or an area where there is no expectation of privacy, such as alleys and common areas, do not violate the 4th amendment
- One’s Vehicle
Stop and Frisk
To justify a stop and frisk under Terry, police must show a reasonable suspicion, supported by articulable facts, of criminal activity. A frisk must be just a pat down of the outer clothing to determine if the suspect is carrying a weapon. Any disclosure of any item other than weapon through frisks requires warrant or warrant exception.
Stop and frisk is insufficient to justify a warrantless search of the defendant’s person, possession such as bag or purse, or automobile. At that point, discuss the legitimacy of the search and any exception to the warrant requirement under the law of searches.
Plain Feel Doctrine
Under the Plain Feel Doctrine, the police officer must be able to determine simultaneously that 1) the item is not a weapon and that 2) the item is contraband. If the police officer cannot determine that the item is contraband without additional probing or investigation, the item cannot be seized without a warrant or a warrant exception.
Police Checkpoints
Police may set up roadblocks to stop cars without individualized suspicion that the driver has violated the law if:
(1) cars are stopped on a neutral, articulable standard (e.g., every nth car); and
(2) the roadblock is designed to serve purpose closely related to a particular problem related to automobiles (checking sobriety or that all the occupants are legally in the country).
Searches, Warrants, and Arrest
no rule
Fourth amendment requires that search and seizures be reasonable. A reasonable search requires a warrant. If there is no warrant or the warrant is invalid, search is invalid unless by warrant exception.
—
The Fourth Amendmnet requires that search and seizures be reasonable. A reasonable search requires a warrant. If there is no warrant or the warrant is invalid and cannot otherwise be saved see if you fit the search into one of the exceptions.
- If there is a search of the accused, their home or car, or what they are carrying, did the police have a Warrant?
- If the warrant is invalid, see if you can save the evidence through a good faith reliance defense.
- If there is no warrant or the warrant is invalid and cannot otherwise be saved see if you fit the search into one of the exceptions.
Valid Warrant
Valid warrant must:
1. Describe the place and the objects to be searched with reasonable particularity.
2. Be issued by a neutral and detached magistrate.
3. Not be Based on Willfully false statements
If a warrant is based on omission, it is still valid. If the warrant is valid, the search is valid.
Warrant Exception
In the absence of a warrant, the governmen must demonstrate that it has complied with a recognized warrant exception.
Consent
The consent was given knowingly, valid and intelligently; consent is given by someone with authority or whom police reasonably believe has authority.
—
Subrules:
- Co-occupant has authority to allow search in common areas – accused assumes that risk
- Apartment manager cannot give consent to search a tenant’s rooms
- Absent a true emergency involving someone’s health or evidence of imminent suicide, police cannot enter a residence under a “community caretaking” exception
Automobile exception
my rule:
The officer may search the whole vehicle if officer has probable cause the seizable object or contraband is in the vehicle, but cannot search the vehicle within the curtilage of one’s home.
—
Warrant is not required if there is probable cause that there are seizable items or contraband in the car.
* Police may search anywhere in car that may contain contraband.
* But this exception does not apply to automobiles within curtilage of home
Police has probable cause of criminal activity if it is based by articulable facts.
Plain View
Officer can seized object if the object is discovered inadvertently and is immediately apparent as evidence of crime. The officer seizing the evidence must have a lawful right to access or observe the seized object
Assumes the officer had a right to be where they are
Search Incident to Lawful Arrest
Analysis
- First discuss whether there was a lawful arrest
- If lawful arrest, can search
Lawful arrest
The lawful arrest requires a warrant unless:
1. The officer sees the defendant is committing a felony or misdemeanor; or,
2. The officer has probable cause that the defendant was is committing or is has committed a felony.
—
A lawful arrest requires a warrant unless:
(1) the officer sees defendant committing a felony or has probable cause (reasonable grounds) that defendant is committing or has committed a felony, or
(2) sees the defendant committing a misdemeanor.
discussing probable cause is fact intensive
Probable cause
Probable cause is the officer’s reasonable belief, based on officer’s factual and practical considerations, that the accused is commiting a crime or the place contains evidence of crime.
Search incident to lawful arrest
A search incident to a lawful arrest (SILA) can be made if:
1. It takes place in connection with the arrest, or immediately thereafter, and
2. The area searched is within the arrestee’s wingspan (to prevent the arrestee from obtaining a weapon or destroying evidence within his reach.)
However, a search is not permitted once the arrestee is secured and cannot access the vehicle’s intereior, unless it is reasonable for the officer to believe that evidence of the offense that the arrestee has been arrested for might be found in the vehicle.
Protective Sweep
If there is a reasonable belief, supported by articulable facts, that the accused’s accomplices are nearby, the officers may engage in a protective sweep to search for them in areas where they may be found.
—
Facts indicate probable cause? [reasonable belief] that an accomplice may be present – ok to search areas where they may be found
Inventory Search
Police may perform inventory search on the legitimately arrested person when he is booked per the department’s established procedure.
Booking process
Inventory Search
Established police department procedure
Exigent Circumstances
Exigent circumstance exists when there is a threat that, if the time is taken to obtain a warrant, the evidence will be lost or destroyed
Emergency Aid Exception
e.g., police see someone injured or threatened with injury
Exclusionary Rule
The usual remedy for a 4th Amendment violation is the exclusion of the evidence, unless the prosecution shows the police acted under a good faith belief they were acting lawfully.
Exclusion of evidence – “fruit of poisonous tree”
Good Faith Exception - Police acted under a good faith belief
Inevitable Discovery
Evidence is admissible if the prosecutor can show the Police would have discovered the evidence even if they had not acted illegally.
If the prosecutor can show that the police would have discovered the evidence even if they had not acted illegally, the evidence will be admissible.
Independent Source
Evidence is admissible if the prosecutor can show it was obtained independent of the original illegal conduct.
Admissible if the prosecutor can show it was obtained independent of the original illegal conduct.
Impeachment
Even if illegally obtained, evidence admissible to impeach accused’s testimony
Confession - 14th Amendment
Whether the confession was voluntary (not coerced) under the totality of the circumstances?
Confession - 5th Amendment
The Fifth Amendment guarantees freedom against compelled self-incrimination. To protect this Fifth Amendment right, detainees must be given Miranda warnings prior to custodial police interrogation.
—
* Privilege against self-incrimination and right to counsel
* Before any custodial interrogation, defendant must be given Miranda warning (right to counsel and right to remain silent)
Confession - 5th Amendment
Analysis; not rule
- Before any custodial interrogation, defendant must be given Miranda warning (right to counsel and right to remain silent)
- Separate IRACs for Custody and Interrogation, define and discuss separately
(a) Custody: accused not free to leave or reasonably believes not free to leave
(b) Interrogation: questions designed to elicit incriminating information - Accused claims right to remain silent:
(a) Questioning may only be re-initiated after a reasonable amount of time has passed, but only on a separate crime - Accused claims right to counsel:
(a) Questioning may not be re-initiated absent presence of counsel unless at the request of the accused
(b) The accused is first into the general prison population for at least 14 days and re-Mirandized - Impeachment
(a) Illegally obtained confessions and statements admissible to impeach accused as a prior inconsistent statement, but not admissible for their truth.
Custodial Interrogation
Custody is the seizure or other situation where defendant is not free to leave or reasonably doesn’t feel free to leave. An interrogation is any statement or conduct reasonably likely to elicit an incriminating response from the accused.
6th Amendment - Confession
Under the 6th Amendment, there is a right to counsel at all critical stages once adversary judicial proceedings have begun and defendant is charged. Police and informant that deliberately elicits statements from defendant without his cousnsel violates of 6th amendment.
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- If defendant blurts information out – no violations
Pretrial Identifications - 6th Amendment
Right attaches post-charge, thus there is no 6th amendment right to pretrial identifications.
Pretrial Identifications -
14th amendment due process clause
Under the Due Process Clause, the identification process: 1) cannot be unreasonably suggestive and 2) cannot be a substantial likelihood of misidentification.
Unnecessarily Suggestive
pretrial ID - 14th DPC
Defendant proves it is unnecessarily suggestive when:
* the procedures used were unnecessary;
* the procedures were arranged by the government; and,
* they were suggestive.
Reliability
pretrial ID - 14th DPC
Even if it was unnecessarily suggestive, defendant must prove that the suggestiveness results in an irreparable risk of unreliable identification.
Pretrail identification and Post- Charge Lineup - 6th Amendment, right to counsel
Under the 6th Amendment, there is a right to counsel at all critical stages once adversary judicial proceedings have begun, including any post-charge lineup. There is no 6th Amendment right to counsel at a pre-charge lineup. And this right does not apply to photographic lineup identification.
Police and informant that deliberately elicits statements from defendant violates of 6th amendment.
Excludes Subsequent Identification from Tainted Identification
Fruit of the poisonous tree – excludes subsequent identifications if they result from the tainted procedure.
Identifications independent from tainted procedure are still permitted.
Co-Defendant Confessions -
6th Amendment Confrontation Clause
A co-defendant’s confession is admissible only if 1) statements concerning the accused are redacted or 2) the co-defendant is subject to cross-examination
Informants - 5th amendment
Miranda warnings need not be given where the interrogation is by an informant who the defendant does not know is working for the police
Informants - 6th amendment – post charge
- Government informant is placed in defendant’s cell, after defendant has been charged, and informant deliberately elicits statements is violation
- If defendant blurts information out – no violations
Right to Speedy Trial
- Attaches when the defendant is arrested or charged
Element: To determine whether defendant has been denied a right to a speedy trial consider:
* Length of the delay,
* Reasons for the delay,
* Whether defendant asserted his right to a speedy trial, if defendant requested the delay, cannot claim a denial of speedy trial, and
Prejudice to the defendant
Remedy is dismissal with prejudice
Bail
Accused is entitled to bail, in some appropriate amount, in non-capital cases, in an amount that is designed to make it unlikely that defendant will flee
Under the 8th amendment.
Pleas
Pleas must be voluntarily and intelligently made.
Judge must advise defendant personally of: 1) nature of the charge, 2) critical elements of the offense, 3) maximum possible penalty and whether there are any mandatory minimum penalty, 4) right to plead not guilty, and that by pleading guilty defendant waives right to a trial.
Voluntariness
Plea
The judge must determine that a plea is voluntary and intelligently made.
Judge Properly Presented Effects of Guilty Plea
Plea
Judge must advise defendant personally of: 1) nature of the charge, 2) critical elements of the offense, 3) maximum possible penalty and whether there are any mandatory minimum penalty, 4) right to plead not guilty, and that by pleading guilty, defendant waives right to a trial. This advice must appear on the record.
Ineffective Assistance of Counsel
Elements:
1. But for test
2. Prove that defendant would not have been convicted
Forces you to analyze and discuss the elements of the crime and likelihood of success
Right to Testify
The accused has a right to testify based on the 5th amendment due process right to a fair trial.
An accused’s lawyer cannot prevent him from testifying
Right to Represent Self
On the request of the accused, the court must determine whether the accused’s request is knowing and intelligent (rational and factual understanding of the proceeding), and whether the accused is competent to represent himself. Even if a court makes such a determination, the court should appoint counsel to be present and be ready to assist the accused if needed and requested by the accused.
Double Jeopardy
Elements:
1. Right to be free of being tried more than once for the same crime.
Exceptions:
- Hung jury
- Mistrial
- Retrial (but not if attempted retrial is on the more serous offense)
- Breach of plea bargain
- Same offense
- Not the same offense if each crime requires proof of an additional element that the other crime does not require
A defendant cannot be convicted of both the greater offense and the lesser included offense (e.g., Robbery and Larceny; conspiracy and solicitation; murder and criminal battery of the same victim)
Double Jeopardy does not apply to separate sovereigns (different states; state v. federal prosecutions)
