Criminal Law & Procedure Flashcards
Master criminal law and procedure
MPC fault standards
Purposely: conscious object to engage in proscribed conduct
Knowingly/willfully: awareness that contact is of a particular nature or will cause a particular result
Recklessly: knowledge of a substantial and unjustifiable risk and conscious disregard of it
Negligently: failure to be aware of a substantial risk
Accomplice liability
Principal: commits illegal act (or causes innocent agent to do so); liable for principal crime
Accomplice: with intent crime be committed, aids, counsels, or encourages principal to do so; liable for principal crime and other foreseeable crimes
Accessory after the fact: aids another to escape knowing that he’s committed a felony; liable for separate crime of obstructing justice or being an accessory after the fact
- Sometimes exceptions for family members.
Solicitation
- Inciting, counseling, advising, urging, or commanding another to commit a crime
- With the intent that the person solicited commit the crime
Vicarious liability: if party solicited commits requested crime, solicitor also be liable for the crime.
Defense: legislative intent to exempt solicitor (e.g., woman who solicits man to transport across state lines)
Conspiracy
- Agreement with another for an unlawful objective (could be tort)
- MPC: unilateral agreement possible
- Wharton’s rule: if target crime requires two parties (e.g., dueling), no conspiracy w/p three or more parties - Overt act in furtherance of objective (not required at common law)
- Specific intent to (i) enter agreement and (ii) achieve objective
Vicarious Liability: All conspirators liable for any crime committed by co-conspirator if crime (i) reasonably foreseeable and (ii) in reasonable furtherance of the conspiracy.
Conspiracy - defenses
Factual impossibility: no defense
Legal impossibility: defense
Withdrawal: must timely (i.e., before crime) communicate to all co-conspirators that no longer a participant
- Conspirator not liable for subsequent crimes but remains liable for conspiracy, unless, under MPC, withdrawal thwarts conspiracy
Attempt
- Act of perpetration
- Trad.: proximity test – “dangerously close”
- MPC: “substantial step” - With the intent to commit the target crime
Attempt - defenses
Factual impossibility: no defense Legal impossibility: defense Abandonment -- Trad.: no defense MPC: fully voluntary and complete abandonment is a defense
Legal and factual impossibility
Legal impossibility: acts defendant intends to commit are not a crime in the jurisdiction
Factual impossibility: acts defendant intended to commit would be a crime, if the facts were as defendant believed them to be
Insanity defenses
M’Naghten: as a result of mental defect, (1) did not know the wrongfulness of his act OR (2) could not understand the nature and quality of his acts.
- Focuses on your HEAD
Irresistible impulse: as a result of mental defect, was unable to control conduct or conform conduct to the law.
- Focuses on body or, for ease of remembering, SHOULDERS
ALI/MPC: lacked substantial capacity either (1) to appreciate wrongfulness of conduct or (2) to conform conduct to requirements of law
- Focuses on HEAD and SHOULDERS
Durham/NH: crime was the product of a mental disease or defect.
Intoxication defenses
Voluntary: defense to specific intent crime if prevents formation of required intent
Involuntary (unknowing, under duress, pursuant to medical advice): treated as mental illness; may be defense to all crimes
Infancy defense
Under age of 7: No criminal liability.
Between 7 and 14: Rebuttable presumption of no criminal liability.
Over 14: Treated as an adult.
- On essay, note that all states have own juvenile justice system and take defendants on their own facts and circumstances.
Justification - self-defense - non-deadly force
May use force reasonably necessary to protect from the imminent unlawful use of force against oneself; no duty to retreat
Justification - self-defense - deadly force - in general
May use deadly force if:
- Without fault
- Confronted with unlawful force
- Threatened with imminent death or great bodily harm
- MINORITY: Retreat, unless –
i. Attack is in victim’s home
ii. Attack occurs while victim making lawful arrest
iii. Attacker is robbing victim (lecture: or committing any violent felony)
Justification - self-defense - deadly force - use by initial aggressor
May use deadly force if:
- Effectively withdraw and communicate to other desire to do so
- Initial victim suddenly escalates and no chance to withdraw/retreat (if chance, must take it)
Justification - defense of others
Can use deadly force if reasonable and necessary to defend another
If mistaken as to 3P’s right to self defense –
Majority: Reasonable mistake allowed
Minority: Reasonable mistake not allowed; can use no more force than 3P allowed
Justification - crime prevention
A police officer or private person may use deadly force if reasonably necessary to prevent the commission of a dangerous felony; reasonable mistake allowed
Justification - apprehension/arrest
A police officer or private person may use deadly force if reasonably necessary to prevent apprehend/arrest a dangerous felon
Private citizen not entitled to reasonable mistake; may use deadly force only if person apprehended with deadly force actually guilty
Justification - defense of dwelling/property
Generally, cannot use deadly force to protect home or other property.
- Exception: can use protect occupants of home from violent intruder or if intruder intends to commit a felony inside
Criminal homicide - in general
Unlawful killing of another human caused by the defendant
- Murder: homicide with malice aforethought
- Voluntary manslaughter: murder with adequate provocation
- Involuntary manslaughter: homicide without malice
Criminal homicide - death “caused by” defendant
- Defendant acted alone to cause death.
- Defendant’s omission caused death and defendant by statute, contract, relationship or voluntary undertaking had a duty to act.
- Act of a third party contributed to cause death.
- Death was a foreseeable result of defendant’s act or omission.
Criminal homicide - murder - malice
- Intent to kill [can be first degree murder]
- Defendant’s words
- Deadly weapon doctrine: Use of a deadly weapon in a deadly manner. - Intent to inflict great bodily harm
- Depraved heart: Reckless indifference to a known high risk of death or serious bodily injury
- Felony Murder Rule: Homicide committed during the perpetration of an an inherently dangerous felony [can be first degree murder]
Criminal homicide - murder - felony murder
Homicide committed during the perpetration of an an inherently dangerous felony
- During the perpetration: From attempt until felon reaches a place of temporary safety.
- Inherently dangerous felonies: Burglary, Arson, Rape, Robbery and Kidnapping (BARRK)
- Minority: non-dangerous felonies committed in a dangerous manner - Felony must be independent from the act that caused death.
- A defense to the felony is a defense to a felony murder charge.
- Vicarious liability: All felons are liable for death caused by a co-felon
- Generally, no liability if non-felon kills felon.
- Majority: proximate cause theory - liability if non-felon kills another non-felon
- Minority: agency theory - no liability if non-felon kills another non-felon - Proximate cause: The felony must be the proximate cause of the homicide (i.e., homicide foreseeable result of felony).
Criminal homicide - murder - degrees of murder
- First Degree:
a. Premeditated and deliberate intent to kill
b. Felony Murder: a murder that satisfies the felony murder rule AND is based on felony specified in state’s first degree murder statute (usually BARRK) - Second Degree: all other murders
Criminal homicide - murder - voluntary manslaughter
- Provocation
- Subjective and objective heat of passion
- Subjective and objective absence of cooling off - Good faith mistake/imperfect self-defense
- Victim killed under good faith, but unreasonable belief as to self-defense, defense of others, or crime prevention.
Criminal homicide - murder - involuntary manslaughter
- Intent to inflict slight bodily injury
- Criminal negligence
- “Misdemeanor-Manslaughter”
- Defendant kills while committing a non-inherently dangerous felony (i.e., not sufficient for felony murder rule) or a malum in se as opposed to a malum prohibitum crime.
Receipt of stolen property
- Receiving possession and control
- Of stolen personal property
- Known to have been obtained criminally
- By another person
- With intent to permanently deprive
- If police are using recovered property in sting w/ owner’s permission, no longer “stolen”; crime is attempted receipt of stolen property
Forgery
- Making or altering
- Writing with apparent legal significance
- E.g., contract, not painting - So that it is false
- Must represent something it is not - fake of real thing, not inaccurate alteration - With intent to defraud
Exclusionary rule - exceptions to fruit of poisonous tree doctrine
- Independent source
- Inevitable discovery
- Intervening acts of free will by D
- Miranda violations unless police act in bad faith
Exclusionary rule - limits
Exclusion does not apply to:
- Grand jury proceedings
- Civil proceedings
- Parole-revocation proceedings
- Use of excluded evidence to impeach D
- Violations of the knock-and-announce rule
Detention - arrest - requirements
Must be based on probable cause
Warrants generally not required for arrest in public place but are required for non-emergency arrest of D in his home
Detention - investigatory detention (Terry stop) - requirements
Must have a reasonable suspicion supported by articulable facts of criminal activity
- Depends on the totality of circumstances
Detention - automobile stop - requirements
Must have reasonable suspicion that the law has been violated
Exception: roadblock (i) based on a neutral, articulable, standard (ii) designed to serve purpose closely related to particular problem relating to automobiles and their mobility
- E.g., roadblock for drunk driving OK; roadblock to search for drugs not OK
Search and seizure - analytical approach
- Governmental conduct?
- Public police, private police deputized w/ arrest power, people acting at public police direction - Reasonable expectation of privacy? [STANDING]
- Valid search warrant?
- If warrant not valid, good faith?
- If no good faith or no warrant, do exceptions apply?
Search and seizure - reasonable expectation of privacy (standing)
- Own or have a right to possession of place searched
- Live in the place searched
- Overnight guest in place searched
- Own the property seized AND have a reasonable expectation of privacy in the item or the area searched
Search and seizure - reasonable expectation of privacy (standing) - no expectation
- The sound of your voice
- The style of your handwriting
- The paint on the outside of your car
- Account records held by a bank
- Location of your car on a public street or in your driveway
- But: installation of GPS device on car is search - Anything that can be seen across the open fields/areas outside curtilage
- Anything that can be seen from public place, including from the public airspace
- But: use of sense-enhancing tech not in general public use is search - The odors emanating from your luggage or car (“sniff test”)
- Your garbage set out on the curb for collection
Search and seizure - warrant requirement
- Probable cause: a fair probability that contraband or evidence of a crime will be found in the area searched
- Can’t be based entirely on anonymous tip; reliability of informants judged by totality of circumstances - Particularity: must state with particularity the place to be searched and the things to be seized
- Neutral and detached magistrate
Search and seizure - warrant requirement - good faith
Good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements
Does not apply if:
- Affidavit underlying warrant so lacking in probable cause that no reasonable officer would have relied on it
- Affidavit underlying warrant so lacking in particularity that no reasonable officer would have relied on it
- Officer or prosecutor lied to or misled magistrate when seeking warrant
- Magistrate is biased, and therefore has wholly abandoned neutrality
Search and seizure - warrant requirement - exceptions
ESCAPIST:
- Exigency: evanescent evidence; hot pursuit (w/in 15 mins behind D); emergency
- Search incident to lawful arrest: contemporaneous wingspan or Gant search of passenger compartment
- Consent: voluntary and intelligent; must have apparent authority and not be against wishes of co-occupant
- Automobile: everything, including containers that could contain contraband, with probable cause (can arise after stop)
- Plain view: if legitimately present where observation made and immediately apparent contraband
- Inventory search: before incarceration, arrestee’s personal belongings and entire vehicle
- Special needs: school searches and drug testing
- Terry stop and frisk: pat-down of outer clothing and body (or areas of car w/in reach) to check for weapons, justified by officer safety concern; can seize weapons or contraband identified by plain
Search and seizure - warrant requirement - exceptions - special needs - school search
Reasonable grounds (not probable cause) for search and:
- Search must offer a moderate chance of finding evidence of wrongdoing; and
- Measures adopted are reasonably related to objectives of search; and
- Search is not excessively intrusive
Wiretapping and eavesdropping
- All wiretapping and eavesdropping requires a warrant.
2. Exceptions to the eavesdropping rule: “unreliable ear” and “uninvited ear” (no warrant necessary).
5th and 6th Amendments - offense specificity
5th Amend: not offense specific; applies to entire process of custodial police interrogation
- If right to silence invoked: can question about another crime w/ fresh warnings after break
- If right to counsel invoked: can question only if (i) later waives or (ii) released and 14 days pass
6th Amend: offense specific; counsel need to be present only if the D being asked questions about specific case for which D retained counsel
5th Amendment - when applicable
- Custody: at the time of interrogation, D not free to leave. [OBJECTIVE STD]
- Interrogation: police knew or should have known that they might elicit an incriminating response from D
- D must know he is being questioned by government agent
6th Amendment - when applicable
After judicial proceedings have begun (e.g., formal charges)
Does not apply to:
1. Taking of blood samples
2. Taking of handwriting samples
3. Pre-charge lineups
4. Brief recess during defendant’s testimony at trial
5. Parole and probation revocation proceedings
6. The taking of fingerprints
5th and 6th Amendments - waiver
Must be knowing and voluntary (and intelligent for 6A)
Trial - rights
- Right to an unbiased judge
- No actual malice/financial interest - Right to jury trial if sentence exceeds 6 mos
- Right to counsel
- IAC claim if point to specific errors and show prejudice
- Pro se allowed if competent (req can be higher than competence to stand trial) - Right to confront witnesses
- Important public purpose can override
Trial - jury requirements
- Minimum number of jurors is 6; if court uses minimum, must be unanimous.
- No unanimity requirement; SCOTUS has approved non-unanimous verdicts of 10-2 and 9-3; 8-4 probably not OK
- Cross sectional requirement: jury pool, but not impaneled jury, must reflect a fair cross section of the community
- Cannot exercise preemptory challenges on basis of race or gender
Guilty pleas - requirements
Voluntary, intelligent, and on record.
Judge must tell D:
- Nature of charge and crucial elements; and
- Atty can explain to D if clear on record - Maximum authorized penalty and any mandatory minimum penalty; and
- That D has a right to plead not guilty and to demand a trial; and
Guilty pleas - withdrawing
- The plea was involuntary (some mistake in plea taking ceremony)
- Lack of jurisdiction
- Ineffective assistance of counsel
- Failure of the prosecutor to keep an agreed upon plea bargain
Double jeopardy - when attaches
Jeopardy attaches in a jury trial when a jury is sworn; in a bench trial when the first witness is sworn
Double jeopardy - exceptions permitting retrial
- Jury is unable to agree upon a verdict
- Mistrials for manifest necessity
- E.g., medical emergencies - A retrial after a successful appeal (unless appeal was on sufficiency of evidence)
- But: cannot be retried for more serious offense than convicted of at first trial - Breach of an agreed upon plea bargain by D
- E.g., refuses to testify as agreed; plea and sentence can be w/drawn and original charges reinstated
Double jeopardy - included offenses
Jeopardy for greater offense bars retrial for any lesser included offense; jeopardy for lesser offense bars retrial for any greater included offense
- Exception: murder trial after jeopardy attaches to battery charge
- Exception: new evidence because conduct had not occurred or was not discovered despite due diligence
