Criminal Law Hot Topics

Question 1

Reckless disregard for obvious high risk that particular harmful result would occur
There is only TWO crimes at CL: 2nd degree Murder and arson

Answer 1

Malice

Question 2

Some states recognize an this defense doctrine under
which murder may be reduced to manslaughter even though (1) the defendant was at fault in starting the altercation; or (2) the defendant unreasonably but honestly believed in the necessity of responding with deadly force (meaning the defendant’s actions do not qualify for self-defense)

Answer 2

Imperfect Self-Defense

Question 3

consists of (i) a taking (ii) of personal property of another (iii) from the other’s person or presence (iv) by force or intimidation (v) with the intent to permanently deprive him of it. Thus, ______ is basically an aggravated form of larceny in which the taking is accomplished by force or threats of force. The force must be used either to gain possession of the property or to retain possession immediately after such possession has been accomplished, but the defendant need not have intended to use force to complete the crime; the only intent required is the intent to permanently deprive the victim of his property.

Answer 3

Robbery

Question 4

If the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had PROBABLE CAUSE to search. If a warrantless search of a vehicle is valid, the police may tow the vehicle to the station and search it later. However, if the vehicle is parked within the curtilage (for example, the driveway) of a suspect’s home, the police may not search the vehicle without a warrant.
NOTE: the police have fairly broad authority to search a vehicle depending on what they are looking for. If there is PROBABLE CAUSE to search the vehicle, the police can search the entire car and anything in it that MIGHT CONTAIN THE EVIDENCE. Thus, if they are looking for evidence of illegal drugs, they can look in almost anything in the car, but if they are looking for undocumented aliens, they cannot look inside a small suitcase.

Answer 4

Automobile Exception

Question 5

Any EXERCISE OF CONTROL by a government agent over a PERSON OR THING is a ________. Governmental ________ of persons, including ARRESTS, are _______ within the scope of the Fourth Amendment and so much be reasonable.
A ______ occurs when, under the TOTALITY OF THE CIRCUMSTANCES, a REASONABLE person would feel they were NOT FREE TO DECLINE the officer’s requests or otherwise terminate the encounter.

Answer 5

Seizure

Question 6

The Fourth Amendment provides that people should be free from UNREASONABLE

Answer 6

search and seizures

Question 7

Occurs when the police take a person into custody against their will for purposes of criminal prosecution or interrogation.

Answer 7

Arrest

Question 8

An arrest MUST be based on ________—that is, trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime by which arrest is authorized by law. Probable cause is based on the TOTALITY OF THE CIRCUMSTANCES.

Answer 8

PROBABLE CAUSE

Question 9

A _________ generally is NOT required before arresting a person IN A PUBLIC PLACE. However, police generally must have a warrant to executing NONEMERGENCY ARREST of a person in their HOME. The officers executing the ________ may enter the suspect’s home ONLY IF there is reason to believe the suspect is within it.

Answer 9

WARRANT

Question 10

What is the Effect of an Invalid Arrest on subsequent criminal prosecution?

Answer 10

An unlawful arrest, by itself, has NO impact on any subsequent criminal prosecution.

Question 11

Police can detain person for investigatory purposes if REASONABLE SUSPICION of criminal activity supported by ARTICULABLE FACTS (not merely a hunch).

Answer 11

Terry Stops

Question 12

If the police have REASONABLE SUSPICION that the detainee is ARMED AND DANGEROUS, they may _______ the detainee for weapons.

Answer 12

Terry Frisk

Question 13

Like arrests, __________ must be reasonable
to be valid under the Fourth Amendment, BUT here REASONABLENESS
requires a WARRANT, EXCEPT in SIX circumstances.

Answer 13

evidentiary searches and seizures

Question 14

Evidentiary searches and seizures issues should be approached using the following analytical model:

Answer 14

(1) GOVERNMENTAL CONDUCT
(2) IS THERE STANDING?
-reasonable expectation of privacy?
(3) IS THERE A VALID WARRANT?
-2 Ps! (probable cause and particularity)
(4) IF NO WARRANT, ARE THERE EXCEPTIONS TO THE WARRANT REQUIREMENT?

Question 15

-Person owned or had right to possess place searched
-Place searched is person’s home
-Person is overnight guest of owner of the place searched
-sometimes: person owns the property seized.

Answer 15

Reasonable Expectation of Privacy

Question 16

reasonable expectation of privacy with respect to place searched or item seized. determination made on the totality of circumstances.

Answer 16

Standing to object to evidentiary search

Question 17

Two core requirements for a facially valid search warrant:

Answer 17

Probable Cause and Particularity

Question 18

Search of Automobiles Incident to Constitutional Arrest.

Answer 18

Police may search PASSENGER COMPARTMENT incident to arrest if:
-arrestee is unsecured and may gain access to vehicle, OR
-The police reasonably believe evidence of offense for which person was arrested may be found in the vehicle.
-BUT police won’t be able to look in the trunk!

Question 19

Plain view exception

Answer 19

Police may make warrantless seizure when:
-legitimately on the premises
-discover evidence, contraband, or fruits or instrumentalities of crime,
-see evidence in plain view, and
-Have PROBABLE CAUSE to believe (that is, it must be IMMEDIATELY APPARENT) that the item is evidence, contraband, or a fruit or instrumentality of crime.

Question 20

If a vehicle is properly stopped for a traffic violation and the officer reasonably believes driver or passenger may be ARMED and DANGEROUS officer may:
(1) CONDUCT A FRISK of the suspected person, AND
(2) SEARCH THE VEHICLE, so long as it is limited to the areas in which weapon may be placed.

Answer 20

Automobile Stops

Question 22

Public School Searches

Answer 22

A warrant or probable cause is not required for PUBLIC SCHOOL OFFICIALS to search public school students or their possessions; only REASONABLE GROUNDS for the search are necessary. A school search will be held to be reasonable only if:
-It offers a moderate chance of finding evidence of wrongdoing
-The measures adopted to carry out the search are REASONABLY RELATED related to the objectives of the search; and
* The search is NOT EXCESSIVELY INTRUSIVE in light of the age and sex of the student and nature of the infraction.

Question 23

CONFESSIONS

Answer 23

The admissibility of a defendant’s confession (or other incriminating admission) involves analysis under the Fourth, Fifth, Sixth, and Fourteenth Amendments

Question 24

FOURTEENTH AMENDMENT-VOLUNTARINESS

Answer 24

For a self-incriminating statement to be admissible under the Due Process Clause, it must be VOLUNTARY
-Voluntariness determined by totality of circumstances.
-A statement will be involuntary only if there is official compulsion (ex: product of mental illness).
-Harmless error test applies–>conviction need not be overturned if overwhelming evidence of guilt

Question 25

SIXTH AMENDMENT RIGHT TO COUNSEL

Answer 25

Guarantees the right to assistance of counsel in all criminal proceedings, which include all critical states of a prosecution AFTER JUDICIAL PROCEEDINGS HAVE BEGUN (for example, formal charges have been filed). It prohibits the police from deliberately eliciting an incriminating statement from a D outside the presence of counsel AFTER THE D HAS BEEN CHARGED, unless the D has waived their right to counsel. -Note that there can be NO violation of the Sixth Amendment right to counsel BEFORE formal proceedings have begun. Thus, a defendant who is arrested BUT NOT YET CHARGED does NOT have a Sixth Amendment right to counsel but does have a Fifth Amendment right to counsel (see below) under Miranda.

Question 26

STAGES WHEN 6TH AMEND. RIGHT TO COUNSEL APPLIES

Answer 26

* Post-indictment interrogation, whether or not custodial * Preliminary hearings to determine probable cause to prosecute * Arraignment * Post-charge lineups * Guilty plea and sentencing * Felony trials * Misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed * Overnight recesses during trial * Appeals as a matter of right * Appeals of guilty pleas

Question 27

STAGES WHEN 6TH AMEND. RIGHT TO COUNSEL IS NOT APPLICABLE

Answer 27

* Blood sampling * Taking of handwriting or voice exemplars * Precharge or investigative lineups * Photo identifications * Preliminary hearings to determine probable cause to detain * Brief recesses during the defendant’s testimony at trial * Discretionary appeals * Parole and probation revocation proceedings * Post-conviction proceedings

Question 28

The _____Amendment is offense specific. Thus, even though a defendant’s _____ Amendment rights have attached regarding the charge for which they are being held, the defendant may be questioned regarding unrelated, uncharged offenses without violating the _____ Amendment right to counsel Two offenses will be considered different if each requires proof of an additional element that the other crime does not require.

Answer 28

Sixth

Question 29

FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION/ MIRANDA WARNINGS

Answer 29

Required when person in CUSTODIAL interrogation. person must be told: -right to remain silent -anything said can be used against them in court -right to attorney -if person can’t afford attorney, one will be appointed. doesn’t need to be verbatim, as long as substance is conveyed.

Question 30

When are Miranda warnings required?

Answer 30

Anyone in CUSTODY of the GOVERNMENT and accused of a crime must be given Miranda warnings PRIOR to interrogation by the police.

Question 31

Miranda Warning Governmental Conduct Requirement

Answer 31

Miranda warnings necessary only if detainee KNOWS they are being interrogated by gov. agent.

Question 32

Custody? (two step process)

Answer 32

(1) The first step (sometimes called the “freedom of movement test”) requires the court to determine whether a reasonable person under the circumstances would feel that they were free to terminate the interrogation and leave. All of the circumstances surrounding the interrogation must be considered. (2) If an individual’s freedom of movement was curtailed in this way, the next step considers “whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.” Therefore, the more a setting resembles a traditional arrest (that is, the more constrained the suspect feels), the more likely the Court will consider it to be custody.

Question 33

Interrogation Requirement

Answer 33

Any words or conduct by police that they should know would likely elicit an incriminating response from the detainee. BUT Miranda warnings not required before spontaneous statements. Note that routine booking questions do not constitute interrogation.

Question 34

After receiving Miranda warnings, a detainee has several options:

Answer 34

do nothing, waive their Miranda rights, assert the right to remain silent, or assert the right to consult with an attorney.

Question 35

Invocation of Right to Counsel by Detainee After Miranda (5th Amend.)

Answer 35

Must be UNAMBIGUOUS ALL questioning (even for different crime) must cease until counsel has been provided unless detainee: ----waives right to counsel OR -----Is released back to normal life and 14 days have passed after release

Question 36

Invocation of Right to Remain Silent by Detainee After Miranda (5th Amend)

Answer 36

If the detainee indicates that they wish to remain silent, the police probably MAY re-question them about a DIFFERENT crime after a break if fresh warnings are administered.

Question 37

EXCLUSIONARY RULE

Answer 37

Unconstitutionally obtained evidence excluded at trial.

Question 38

Fruit of Poisonous Tree

Answer 38

Evidence obtained from exploitation of unconstitutionally obtained evidence must be excluded unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct.

Question 39

EXCEPTIONS TO FRUIT OF POISONOUS TREE DOCTRINE

Answer 39

-Fruits derived from statements in violation of Miranda (not purposeful violation). -Evidence obtained from independent source from the OG illegality. -Attenuation: causal link between police misconduct and evidence is broken ----defendant’s intervening act of free will. ** -inevitable discovery: prosecution can show the police would have discovered the evidence whether or not the police acted unconstitutionally -violations of knock and announce rule