Criminal Law & Procedure Flashcards
Government Official (GO)
Search must be by GO or a person [agent] acting under direction of govt
Search
GO looking anywhere where there is a REP. Valid Search = (1) Probable Cause + (2) Warrant. Any evidence found as the result of illegal search–> thrown out (fruit of poisonous tree)
Reasonable Expectation of Privacy
purse, pocket, briefcase, wallet; Compare out in the open/plain view
Open Fields Doctrine – Weed in open field & cop takes helicopter over property = NOT a search bc no REP. Compare weed in a greenhouse w dark stained glass? Yes, REP
OVERNIGHT GUEST HAS REP
REP Test
Whether G invaded (1) a person’s subjective expectation of privacy that (2) society would find objectively reasonable
Probable Cause
Reasonable person would conclude it’s more probable than not that the crime has taken place
Informants
Cops can rely on any informant to get PC UNLESS have reason to believe informant is lying
Valid Search Warrant
(1) issued by neutral & detached magistrate;
(2) facts are fresh & not out of date [w/in a few weeks];
(3) person/places to be searched [scope] must be specific;
(4) knock & announce you have warrant to search the premises
Search Cannot Exceed Scope – if search warrant for bedroom cannot search the whole house
Completed Search –Once searched & found what looking for, GO cannot do further search w/o additional warrant (except: plain view)
Protective Sweep – GO cannot continue to search for additional criminals UNLESS have evidence that some other criminal is on the premises (e.g., crime boss who always has bodyguards around)
Warrantless Exceptions
(1) Consent
(2) Search Incident to Lawful Arrest
(3) Inventory Search
(4) Exigent Circumstances
(5) Auto Exception
(6) Hot Pursuit
(7) Plain View
(8) Border Searches
(9) Dog Sniff in Public Places
(10) Harmless Error Rule
Consent
Owner or right to control/apparent authority to use property can consent.
E.g., Guests? No. Subleasing/Tenants? Yes. Guest in car? No. Give someone keys, registration, and insurance card? Yes. Sharing property & 1 person refuses? No. If sharing property, but only 1 person at home & consent? Yes.
YOU CONSENT WHEN U CALL POLICE FOR HELP
Search Incident to Lawful Arrest
(1) Lawful Arrest;
(2) Can Search;
(3) Wingspan/Anything w/in Immediate Control
Inventory Search
When taken into custody, cops can search your person or car
Exigent Circumstances
Reasonable belief that evidence may be lost or destroyed
Auto Exception
Cop must have PC that car has contraband, then car can be searched (e.g., PC that container in car = contraband)
Two Hypos –
(1) Cop has PC to stop you [e.g., speeding] and PC to search the car [e.g., smells like weed];
(2) Tip (e.g., amber alerts) with description of car/drivercop has PC to STOP and SEARCH car [has PC for car itself]
Hot Pursuit
Cop is chasing car after a bank robbery/other crime
Plain View
Anything in plain view, no warrant required bc no REP
Border Searches
No warrant necessary at the border
Dog Sniff in Public Places
Car parked on public street
Harmless Error Rule
If G would have found the evidence anyways without the illegal search –> evidence can still come in/be used
Stop and Frisk
(1) Stop - Need reasonable suspicion that criminal activity is underfoot;
(2) Frisk – Need evidence that person has weapon.
Random Car Stops
Checkpoints are unconstitutional if done selectively (even if done randomly). If doing it, must stop ALL cars in area.
Miranda Warnings
Only apply to D’s confessions/statements = result of a custodial interrogation.
(1) Custody + (2) Interrogation
Elements of Warnings – (1) Right to remain silent; (2) anything you say can/will be used against you; (3) Right to an attorney; (4) If you cannot afford one, one will be provided to you
Custody
Suspect is objectively not free to leave. Would a reasonable person believe they were free to leave?
custody – formal arrest & restricting movement
not custody– traffic stop & terry stop
Interrogation
Police know or should know that they are trying to elicit [via questions/statements] an incriminating/criminal response from D (are you hungry/how are you/are you thirsty = not an interrogation)
Volunteering Confession – if D volunteers confession before cop had opportunity to Mirandize suspect, statement comes in. BTC.
Waiving Miranda – Knowing & Voluntary. BTC.
Right Against Self-Incrimination
Civil & criminal; have the right to not self-incriminate yourself. Cannot make D submit to witness stand. But can commit someone to physical act (e.g., taking blood, hair, walk across courtroom to show limp, etc.) or identification procedures (e.g., fingerprints, voice samples, appearance in lineups)
Line Up or a Picture IDing Suspect – cannot be unnecessarily suggestive (BTC- what the accuracy of W’s statement suggests). If out-of-court ID is too suggestive, in-court ID can come in if reliable.
Corporations or other business associations do not have the privilege
applies to any proceeding (police investigation, civil proceedings, another person’s criminal trial, pre-trial procedures, grand jury investigations, etc.)
EXCEPTION - IMMUNITY
Right to Counsel
No right to counsel at a line-up BEFORE an indictment, but have right to counsel at line-up AFTER indictment
5th amendment right to counsel BEFORE indictment
6th amendment right to counsel AFTER indictment
o Present at all critical stages of the proceedings
o Undercover cop tricks (boasting, bragging) D into giving statements while under arrest (e.g., together in jail cell)
Right to effective counsel – presumption that counsel was effective; D has to prove counsel was NOT. Did attorney deviate from any norms & reasonably probable that the verdict would have not been guilty had the counsel been effective
Waiving Right to Counsel – knowing (BTC)
Co-Defendants – Co-D can share counsel as long as no conflict of interest or in the ability of attorney give rep to co-D.
Public Trial
Right to public trial in criminal cases UNLESS judge has an overriding interest to close trial. Press can attend except: grand jury.
Fair Trial
(1) Impartiality – impartial judge;
(2) Competency – D must be competent to understand the charges against him & to work with lawyer to prep defense but can be given drugs to be competent to stand trial;
(3) Severance- if 2 Ds tried together, but one will be unfairly prejudiced can sever trial & be tried individually
Right to a Jury Trial
If offense has sentence longer than 6 months. Jury should be cross-section that is representative of D’s community.
Excluding Jurors – Any exclusion of juror based on race or gender violates the equal protection clause
Unanimity- State: 6 jurors= unanimous, but if 12 jurors = doesn’t have to be unanimous. Federal: 12 jurors = unanimous
Guilty Pleas
knowing & intelligently = understand the consequences of what you’re doing
Right to Confrontation
D has a constitutional right to confront & cross-examine any W against him (inc. out-of-court declarants)
Co-Defendants – any co-D who makes a confession which implicates the other co-D MUST testify at trial
Out-of-Court Statements – D’s non-testimonial statements allowed. Testimonial statements NOT allowed.
oNon-Testimonial Statements – D’s statements made during an emergency to help cops catch the D
Grand Jury
Everything is ok in grand jury.
Accused has no right to know the grand jury is looking into evidence against them or to be present
Exclusionary Rule doesn’t apply – even illegally obtained evidence is allowed in grand jury to indict you
Grand Jury Witness has no right to counsel, but the W’s counsel can be outside
Burdens
P must prove all elements of a crime beyond a reasonable doubt
D has to prove affirmative defense by a preponderance of the evidence. EXCEPTION -Federal Trial + Insanity Defense – Clear & convincing evidence
No mandatory presumptions in a criminal case bc violates due process
Double Jeopardy
Double Jeopardy – cannot be tried for the same crime twice
Before Trial – anything that occurs before the trial does not count as DJ (e.g., grand jury, pre-trial hearing)
Attaches – DJ attaches when there is a (1) beginning & (2) end to the first trial
-Beginning – Jury Trial–> when jury sworn in & paneled; Non-Jury Trial –> when first W is sworn in
-End – Verdict or acquittal on the merits
attaches at the beginning
DJ Doesn’t Apply –
(1) Separate Sovereign Doctrine = even if it was a trial #1 w a final judgment, if tried in a state court, under SSD –> can be tried in federal court or another state for the same crime;
(2) Collateral Estoppel = if 2 crimes and tried for elements of #1 crime and not proved and crime #2 has some of the same elements, cannot be tried on #2 bc won’t meet elements
(3) Mistrial = requested by D or based on manifest necessity
(4) new facts necessary for greater offense did not exist in first trial
(5) greater offense was charged at time of plea to lesser offense
Cruel & Unusual Punishment
Cruel & Unusual Punishment – Sentence has to be proportionate to the crime & sentences of other criminals in similar crimes
Right to Counsel & Right to be Silent – exists during sentencing
Death Penalty – not C&U punish as long as procedural safeguards are in place to prevent arbitrary or discriminatory sentencing
-Minors & Mentally Challenged - Cannot sentence DP to anyone under 18 at the time of the crime or anyone mentally challenged
Homicide
Murder or Manslaughter
Murder
ELEMENTS
Actus Reus
Corpus Delecti (death of V)
Mens Rea
Causation
Intent - MALICE which is established by
(1) Intent to Kill - desire to kill or knowledge to a substantial certainty death will occur. (use of a deadly weapon creates an inference for intent to kill)
(2) Intent to Inflict Serious Bodily Harm & a person dies as a result
(3) Felony Murder – while in the course of committing a dangerous felony (BARRK), there is a death
-BARRK = burglary, arson, rape, robbery, kidnapping
-Death w/in the course – 20 mins after = ok; 1 week later = not ok
-death is a natural and probable consequence + occurs during the commission of the felony.
=Felon is liable for a killing committed by his co-felon
(4) Depraved Heart – acted with reckless disregard of human life
-Reckless = malice/malicious = knew or should have known someone could have died
Manslaughter
No Intent
Voluntary – adequate provocation which puts you in the heat of passion + no time to cool off (e.g., spouse cheating) + D did not cool off
-Imperfect Self-Defense - self-defense + used excessive force + honestly believed had to use excessive force + person dies
-rekindling doctrine: allows a D to argue that, even tho enough time had passed since initial provocation to allow for cooling off, another encounter w the victim was sufficient to “rekindle” the D’s passion. Such encounters commonly involve mocking or taunts about the initial provocation
Involuntary – acted negligently & someone died (e.g., parent neglecting child needing medical care bc of religious reasons = kid died; drinking & driving crash = person dead)
Depraved Heart v. Involuntary Manslaughter
Reckless–>Depraved Heart – Presence of people (e.g., Russian roulette, drop coin off empire state building)
Negligent–>Involuntary Manslaughter – Lack of people (e.g., polishing rifle at home, neighbors at work, rifle accidentally goes off and hits neighbor who is at home sick gets hit)
Inchoate Crimes
attempt, conspiracy, solicitation
Attempt
(1) Specific intent to do the crime + (2) Overt act or substantial step towards doing crime (words ≠ enough)
Separate crime by itself – Elements of the underlying crime doesn’t matter once charged with attempt
Cannot Withdraw – cannot withdraw once take substantial step, will always be guilty of attempt
Merger Doctrine APPLIES – crime of attempt merges into completed crime. Once completed, only charged with crime.
in common law jurisdiction, need to be sufficiently close to completing target offense. mere preparation (e.g., soliciting) is not enough.
DEFENSE- COMPLETE & VOLUNTARY ABANDONMENT. not voluntary if (1) to avoid detection; (2) delay commission until more favorable time; (3) selection of another similar objective or victim
factual impossibility is not a defense, but legal impossibility is a defense
Conspiracy
Two or more people agree to commit a crime. (1) specific intent to commit a crime + (2) agreement.
Once there is an agreement, always guilty of conspiracy.
EXCEPTION: MPC = Unilateral Theory or Conspiracy – one person alone can have the specific intent to commit the crime guilty of conspiracy (e.g., 3 friends joking of committing crime. One actually wants to commit crime. All 3 guilty of conspiracy)
Co-Conspirator Rule (pinkerton doctrine) – A co-conspirator will be guilty of any crimes the other co-conspirators commit in furtherance of the conspiracy if foreseeable(i.e., getting to the crime, doing the crime, going away from the crime)
Partial Withdrawal – You cannot withdraw from conspiracy once there is an agreement. You can withdraw from crimes in furtherance of the conspiracy as long as you notify your co-conspirators before those crimes could ever be committed and take an affirmative action to withdraw.
Merger Doctrine does NOT apply – Conspiracy crime does not merge. Can be charged with conspiracy + robbery.
Conspiracy can exist among individuals who do not know each other if there is a community of interest in achieving the objective of the conspiracy. A community of interest is usually established through a chain relationship where each alleged conspirator played a role or served as a link in the chain in reaching the conspiracy’s objective.
all conspirators must agree on all essential objectives of the conspiracy (e.g., the target crime or crimes
Common law requires plurality of agreement (2 people must have a guilty mind– if 1 is an undercover cop/feigned agreement–> no conspiracy).
factual impossibility is not a defense to conspiracy.
Common law - no overt act required
MPC & majority - overt act required
agreement can be implied or inferred
if 1 co-conspirator is acquitted for conspiracy, the other cannot be charged w conspiracy
Solicitation
To encourage/entice/egg another to commit a crime. (1) specific intent that crime be committed [solicited party doesn’t have to agree] + (2) inducing/encouraging another to do it
Cannot Withdraw – cannot withdraw from solicitation
Merger Doctrine APPLIES – solicitation merges into completed crime.
DOES NOT REQUIRE ANY STEP TOWARDS EFFECTUATING (e.g., substantial step)
Merger Doctrine
when 2 or more crimes merge, D cannot be prosecuted for each crime
Merge: attempt & solicitation–>completed underlying crime; larceny + assault/battery–>robbery.
false imprisonment –> kidnapping
Doesn’t merge: conspiracy.
General Intent v. Specific Intent Crimes
General - Intent is met when crime occurs
Specific- must have intent to commit that specific crime
Larceny
Trespassory taking & carrying away [even an inch] of personal property of another with the specific intent to permanently deprive (even if only temp & end up putting it back) = (1) Intent to Permanently Deprive + (2) Movement
Continuing Trespass/Wrongful Taking – took something (no intent to permanently deprive) without permission but ended up keeping it/deciding to steal it (e.g., finder)
Larceny by Trick – Obtained POSSESSION of your property by false statement/lie/trick (e.g., joy ride for 6 hours)
Larceny by False Pretenses – obtained TITLE of your property by false statement/lie/trick (hypo re fraudulent sale/transaction) –> usually wrong answer
Embezzlement – LAWFUL POSSESSION of the property of another & converted the use (e.g., pawn shop - supposed to hold ring for 3 days, ends up selling before then & converts it to himself) –> usually wrong answer
no larceny of real property (including severs & immediately carries away an item of real property (e.g., planted tree or fixture/statue)
Burglary
(1) unlawful breaking & entering; (2) dwelling/house of another; (3) at night; (4) with the intent to commit a felony
Breaking – any enlargement, expansion, opening… even if only a millimeter. Can happen by fraud or force. Force to gain Entry
Entering- any part of D’s body or an object in his/her possession crosses into structure
Dwelling – must be a home. Compare John lives in a loft on the 3rd floor of a 7/11 (yes). Of another – not your house.
With an intent to commit a felony (AT TIME OF THE BREAKING)– don’t actually have to commit the felony
convenience store when it’s open = no breaking and entering bc have permission to enter
MODERNLY - most jx include any structure type and any time of day
Custody (Crimes Against Property)
limited control over property of another
Possession (i.e., illegal drugs)
Knowingly received an illegal item OR Exercised dominion or control over the item after learning of its illegal character
