Criminal Law & Procedure Flashcards
Basic Requirements for Criminal Conviction:
1) Commits the physical act that has been made illegal; with
2) The accompanying state of mind required; and
3) A concurrence of the physical act and the mental state.
Inchoate Offenses
Preparatory Crimes
You cannot be convicted of more than one inchoate crime in relation to one offense.
E.g., you can’t be convicted of “conspiracy to commit burglary” AND “attempt to commit burglary.”
Merger?
Generally no merger of crimes. If you commit two crimes, you can be convicted of both.
BUT these two sets can’t be merged:
Solicitation + The Crime; Attempt + The Crime
Failure to Act leads to Liability only where there is a…
1) There is a LEGAL DUTY TO ACT
a) Statute (req to file a tax return)
b) Contract (a lifeguard has a legal duty to act)
c) A Specific Relationship (parent has a duty to protect child)
d) Voluntary Assumption of Care (Dwayne Johnson says, “I’ll save him!” Then ‘him’ turns out to be Vin Diesel, so Dwayne bails)
e) Created the Peril: the defendant created the peril for the victim (Dr. Evil flashes a laser pointer in Austin’s eyes, Austin falls into the pool, Dr. Evil doesn’t stop him drowning)
2) Defendant has KNOWLEDGE of the facts giving rise to the duty to act; and
3) It is REASONABLY POSSIBLE to perform the duty
Defenses for Specific Intent Crimes?
1) Voluntary Intoxication
2) Unreasonable Mistake of Fact
The Specific Intent Crimes and Their Intents:
Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts
Solicitation (have the person solicited commit the crime)
Conspiracy (have the crime completed)
Attempt (complete the crime)
First Degree Premeditated Murder (premeditated intent to kill)
Assault (commit a battery)
Larceny (permanently deprive other person of interest in the property taken)
Embezzlement (defraud)
False Pretenses (defraud)
Robbery (permanently deprive other person of interest in the property taken)
Burglary (commit a felony in the dwelling)
Forgery (defraud)
Malice Intent requires …
a RECKLESS DISREGARD of an OBVIOUS or HIGH RISK that particular harmful result will occur
Malice Intent Crimes
Common Law Murder
Arson
General Intent
Catch-all category; every other crime.
Memorize Specific Intent and Malice crimes, and if it’s not one of those, it’s general intent
They do not get those additional defenses
Strict Liability
No mens rea requirement
Is it a Strict Liability Crime?
1) Step One: Check if it’s in the administrative, regulatory, or morality areas.
2) Check for adverbs in the statute such as ‘knowingly,’ ‘willingly,’ or ‘intentionally.’
3) No Such Adverbs? —> Strict Liability.
Some Such Adverb? —> Not Strict Liability
Model Penal Code Analysis of Fault
An alternative means of determining intent
Abandons general v. specific intent
Knowingly
Aware that their conduct is of a particular nature or that certain circumstances exist such that a particular result will necessarily or very likely occur
Recklessly
Consciously disregard a substantial and unjustifiable risk that circumstances exist
OR
that a prohibited result will follow;
AND
this disregard is a gross deviation from a reasonable person’s standard of care
Negligently
Fail to be aware of substantial and unjustifiable risk
Transferred Intent
Defendant intended harm to different victim or object
Mostly applicable in First Degree Prem. Murder - aimed for one person, hit another
THERE ARE ALWAYS TWO VICTIMS in Transerred Intent cases.
Accomplice Liability - Common Law
Principals in the First Degree: Person who does the crime
Principals in the Second Degree: Person who aids, advises, or encourages and are PRESENT
Accessories Before the Fact: Person who assisted or encouraged but were not present
Accessories After the Fact: Persons who, with knowledge that the other committed a felony, assisted them to escape arrest or punishment.
Accomplice Liability - Modern Statutes
Principal: Person who does the thing
Accomplice: One who aids, advises, or encourages the principal in the commission of the crime
Accessory After the Fact: Assists another knowing that they have committed a felony in order to help them escape
Accomplices must have…
1) In the absence of a statute, more than mere knowledge;
2) Intent to ASSIST the principal; and
3) Intent that the principal COMMIT the offense
4) Provision of Material = Sufficient
Accomplices’ Scope of Liability
An accomplice is responsible for crimes they did or counseled…
…AND for any other crimes committed in teh course of committing the contemplated crime TO THE SAME EXTENT AS THE PRINCIPAL if those other crimes were PROBABLE or FORESEEABLE
Accomplice Withdrawal
To withdraw, accomplice must:
- Repudiate encourageemnt
- Attempt to neutralize their assistance
- Notify police or take other action to prevent crime
…then will not be liable.
The Elements of Conspiracy
AIIO: Also Interested Imaginary Otters
1) Agreement between 2+ persons
- (Modern Approach): Only 1 “guilty mind” required
- (Common Law): 2 “guilty minds” required
2) Intent to Enter Agreement
3) Intent to Achieve Objective
4) Overt Act (?)
- (Modern Approach): Most states require an overt act. Mere preparation/agreement suffices. (can be anything: buy ski masks)
- (Common Law): No Overt Act needed
Termination of Conspiracy
Usually terminates upon completion of the wrongful objective
Acts of concealment are generally NOT part of the conspiracy, unless agreed to in advance
Conspiracy Responsibility
SHARED RESPONSIBILITY. Each member of a conspiracy is liable for the crimes of all other conspirators IF those crimes were:
a) Committed in furtherance of hte objectives of the conspiracy; and
b) A natural and probable consequence of the conspiracy
Defenses to Conspiracy
Not A Defense:
1) Factual Impossibility of actually doing the crime
2) Withdrawal, because conspiracy is complete as soon as the agreement is made. May be a defense to crimes committed in furtherance of the conspiracy.
Defense
3) Withdrawal: Conspirator must perform an affirmative act that notifies all members of their withdrawal.
Solicitation
Elements:
1) Asking someone to commit a crime, with
2) The intent that the person commit it.
Merger: If the person agrees to the crime, then solicitation disappears and it becomes a conspiracy
Attempt
An act done with the intent to commit a crime that falls short.
The Elements of Attempt
1) Specific Intent to Commit That Crime
2) Overt Act in Furtherance of the Crime. Must be beyond mere preparation. How can you tell?
- Common Law: The Proximity Test, which requires the act be “dangerously close” to successful completion
- Most States/MPC: Act constitutes a substantial step in a course of conduct planned to culminate in the crime.
Defenses to Attempt
1) Abandonment of Attempt
- Common Law: not a defense
- MPC: IS a defense if fully voluntary and complete. IOW, if you just were like, “Eh, I feel sick,” that’s not an actual defense.
2) Legal Impossibility
- Defendant thought it was a crime, but it wasn’t.
- Rare
NOT A DEFENSE: Factual Impossibility
Common Law Murder
Unlawful killing of a human being with malice aforethought
Malice Aforethought
- Intent to Kill
- Intent to Inflict Great Bodily Injury
- Reckless Indifference to an Unjustifiably High Risk to Human Life; OR
- Intent to Commit a Felony (felony murder)
First Degree Murder
…requires one of the following circumstances:
- Deliberate and Premeditated: Defendant made decision to kill in cool and dispassionate manner and actually reflected on the idea of killing. Must have intent or knowledge their conduct would cause death.
- First Degree Felony Murder: Murder occurs during a felony (burglary, arson, rape, etc.)
- Others: Some statutes make killings performed in certain ways first degree. E.g. torture or with certain victions (police officers)
Homicide of a Police Officer
…is a first degree murder where:
- Defendant knew they were a police officer; and
- Victim was acting in the line of duty (can be off duty too, e.g. comes across robbery in plain clothes)
Second Degree Murder
A depraved heart killing: reckless indifference to an unjustifiably high risk to human life.
Basically, anything that’s not first degree murder.
ASSUME the murder is SECOND degree unless any of the first degree circumstances apply.
Felony Murder
Any death, even accidental, caused in the commission of or in an attempt to commit a felony, is murder.
Malice is implied from the intent to commit the underlying felony.
Most often robbery on the bar.
Limitations on Liability for Felony Murder
1) Defendant must have committed or attempted to commit the underlying felony.
- a defense against the underlying offense is also a defense against felony murder.
2) The felony must be distinct from the killing itself.
- e.g. aggravated battery that causes death is not an underlying felony for felony murder liability
3) Death must have been a foreseeable result of the felony
4) Death must be caused before the defendant’s “immediate flight”
…also, defendants are not liable for felony murder when a co-felon is killed, in most jurisdictions.
Felony Murder Theories
Agency Theory (Majority): Felons only liable for deaths caused by a felon or an agent.
Proximate Cause (Minority): Felons liable for the death of innocent victims caused by someone other than a co-felon.
Voluntary Manslaughter
A killing that would be murder but for the existence of adequate provocation.
Adequate Provocation
- Provocation would arouse sudden and intense passion in the mind of an ordinary person (finding spouse in bed)
- Defendant was in fact provoked
- Insufficient time to cool down; and
- The defendant *in fact did not cool off
Involuntary Manslaughter
Definition: A killing committed with criminal negligence (or recklessness under the MPC)
Causation: Both FACTUAL and PROXIMATE are needed.
(an act that hastens the inevitable result is still the legal cause of the result. e.g. weak/fragile preexisting conditions doesn’t break the legal chain of causation.)
Limitations on Involuntary Manslaughter Liability
- Year and a Day. Liability depends on the death occurring within one year and one day of the infliction of injury. But most states have abolished this.
-
Intervening Acts. Shields from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the defendant.
- Negligent Medical Care = you’re still liable
Battery
Unlawful application of force to another resulting in either bodily injury OR an offensive touching
- need not be intentional
- force need not be applied directly (making a dog attack)
- Not a Specific Intent Crime so no voluntary intoxication/unreasonable mistake of fact defense
Aggravated Battery
Includes:
- Battery with a deadly weapon
- Battery resulting in serious bodily harm
- Battery of a child, woman, or police officer
Assault
is either:
- An attempt to commit a battery; OR
- Intentional creation (other than by words) of a reasonable apprehension in the victim’s mind of imminent bodily harm
Aggravated Assault
Assault plus one of the following:
- Use of a deadly or dangerous weapon; or
- With the intent to rape, maim, or murder
False Imprisonment
The unlawful confinement of a person without their valid consent
MPC requires the confinement must substantially interfere with the victim’s liberty. Therefore, an alternative route being reasonably available means it was not false imprisonment.
Consent is invalidated by threats, coercion, incapacity, etc.
Kidnapping
The unlawful confinement of a person that involves either
- Movement of the victim; or
- Concealment of the victim in a secret place
Aggravated Kidnapping
Kidnapping for ransom, to commit other crimes, offensive purposes, or child stealing
Rape
Gender-neutral sexual assault; the slightest penetration is sufficient.
The only thing they really test on the bar is the “slightest penetration” thing.
Statutory Rape
Carnal knowledge of a person under the age of consent.
Strict Liability: it is not necessary to show lack of consent.
Reasonable Mistake as to Age is NOT a defense.
Larceny
The taking and carrying away of tangible personal property of another by trespass with intent to permanently deprive at the time of the taking
(You can commit larceny of your own property too, if another person, e.g. a bailee, has a superior right to possession at the time. Mechanic example.)
(Lots of questions on intent at the time of the taking)
Insufficient Intent for Larceny
- Believe the property is the defendant’s.
- If the question says, “In the belief that,” be skeptical it’s really larceny.
- Intent only to Borrow
- Intent to Keep Property as a Repayment of Debt
- Some right to it
Possibly Sufficient Intent for Larceny
May be larceny where the defendant intends to:
- Pay for the goods (if the goods weren’t for sale) or
- Collect a Reward from the Owner (if there is no intent to return the goods absent a reward)
The Continuing Trespass Theory
Where the defendant wrongfully takes the property without intent to permanently deprive, and later decides to keep it, it may be larceny under the continuing trespass theory.
Embezzlement
Fraudulent conversion of personal property of another by a person in lawful possession of that property
Distinguished from larceny because it’s the misappropriation of property while it is in one’s rightful possession
Embezzlement - Fraudulent Intent Requirement
Defendant must intend to defraud
Embezzler doesn’t have to get the benefit.
On the Bar, when you see Trustee —> Embezzlement!
Intent to Restore
If the defendant intends to restore the exact property taken, it is not embezzlement.
But, if the defendant intends to restore similar or substantiall identical property, it is embezzlement
Embezzlement - Claim of Right
Not embezzlement if the conversion is pursuant to a claim of right
Whether the Defendant took the property openly is an important factor
False Pretenses
Obtaining title to personal property of another by intentional false statement of past or existing fact with intent to defraud
Misrepresentation in False Pretenses
Misrepresentation must be a major factor in FP crime. Any false representation suffices, including a false promise to perform in the future.
False Pretenses v. Larceny By Trick
In Larceny by Trick, the victim gives up custody or possession of the property.
In False Pretenses, the victim is tricked into giving up the title to the property.
Robbery
Taking of personal property of another from the other’s person or presence by force or imminent threats, with intent to permanently deprive
differs from larceny because of the force requirement
Imminent Harm
Immediate. If it’s a threat like, “I’ll beat you up on Monday,” that’s not robbery.
Armed Robbery
Robbery with a deadly weapon.
…even if they didn’t actually have a deadly weapon, but only simulated it.
Extortion
Blackmail; obtaining property by means of threats to do harm or expose information
Extortion v. Robbery
Extortion can include threats of future harm, unlike robbery.
Extortion does not have to be in the presence of the victim.
Extortion Statutes
Under some statutes, the crime is complete when the threats are made with intent to obtain the property. In other words, the property need not have been obtained.
Receipt of Stolen Property
Receiving possession and control of stolen personal property -
- Known to have been obtained in a manner constituting a criminal offense by
- Another person with the intent to permanently deprive
Theft
Many modern statutes and the MPC combine some/all of the theft-related offenses (larceny, larceny by trick, extortion, etc.) into the crime of “theft.”
Forgery
Making or altering a writing with apparent legal significance so that it is false, with intent to defraud
- apparent legal significance: a contract, a check…not a painting
- intent needed; no one need actually have been defrauded
Burglary
A breaking and entering of a [dwelling] of another [at nighttime] with intent to commit a felony in the structure
More on the Elements of Burglary
Entry: Any part of the body enters the place
Intent to Commit a Felony…
- must exist *at the time of the breaking and entering.
- Don’t actually have to commit the felony
Breaking:
- Actual Breaking: Not an actual breaking to come uninvited through a wide open door or window.
- But if you TOUCH ANY ENTRANCE at all, even push it open slightly, that’s enough for an actual breaking
- If you use a key for something other than the purpose for which you were given it, that’s a breaking
Constructive Breaking: Breaking by fraud or threat
Arson
Malicious (intentional or reckless disregard of an obvious risk to human life) burning of the [dwelling] of another
Malicious Intent Crime: Acting with a reckless disregard of an obvious risk is enough.
Damage Required: Scorching/blackening is not sufficient. Must be charring. (no one knows)
Defenses
- Insanity
- Intoxication
- Infancy
- Self-Defense
Insanity
Four Tests:
- The M’Naghten Rule: D lacked ability to know the wrongfulness of their actions or understand their nature/quality. (Most Popular one!)
- Irresistible Impulse: Unable to control their actions or conform their conduct to the law.
- Durham Test: Crime was the product of their mental illness; would not have been committed but for the disease. (Broader test. Only NH.)
- MPC/Modern Trend Test: Lacked substantial capacity to either appreciate the criminality of their conduct or conform their conduct to the law as a result of mental disease/defect.
Burden of Proof for The Insanity Defense
Most States —> Preponderance of the Evidence
Some States/MPC —> Beyond a Reasonable Doubt
Timing: Can be raised at any time.
Intoxication Defense
Caused by any substance (drugs too); raised whenever intoxication negates one of the elements of the crime.
-
Voluntary: Intentional taking without duress.
- can’t have intended the crime when you got intoxicated
- if successful, reduces the crime to the next degree
- can’t say, “i’m an addict, so involuntary”
-
Involuntary: Intoxication without knowledge of its nature, under duress, or pursuant to medical advice while unaware of effect
- can be a defense to all crimes
Infancy Defense
Under Age 7: No Criminal Liability
7-14: Rebuttable presumption the child is unable to understand the wrongfulness of their acts
14+: Treated as an Adult
Self-Defense
Nondeadly Force
Deadly Force
Right of Aggressor to Use Self-Defense
Defense of Others
Defense of Dwelling
Defense of Other Property
Excuse of Duress
Necessity
Mistake or Ignorance of Fact
Mistake or Ignorance of Law
Entrapment
Nondeadly Force Self-Defense
Person without fault may use force they reasonably believe is necessary to protect themselves from imminent use of unlawful force
Deadly Force Self-Defense
Person may use deadly force if they are
a) without fault,
b) confronted with unlawful force, and
c) reasonably believe they are threatened with imminent death or great bodily harm.
Duty to Retreat?
Majority View: No duty to retreat.
Minority View/Retreat Jx: Duty to retreat before deadly force, if safe, unless
- attack is in the victim’s home;
- while victim is making a lawful arrest
- in process of robbing victim
Right of Aggressor to Use Self-Defense
When one is the aggressor, they can self-defend if:
a) they effectively withdraw and communicate that desire; or
b) Victim suddenly escalates a minor fight into a deadly altercation, and there is no chance to withdraw
Defense of Others
If one reasonably believes the person assisted has the legal right to use force in their self-defense
Defense of Dwelling
Nondeadly Force in defense of one’s dwelling is permitted when one reasonably believes it is necessary to prevent/terminate unlwaful entry or attack.
Deadly force is allowed only to prevent a violent entry and when the person reasonably believes it’s necessary to prevent a personal attack on themself or another in the dwelling.
Defense of Other Property
- Deadly Force may never be used in defense of other property
- Reasonable, Nondeadly Force may be used to defend property in one’s possession from what they reasonably believe is an imminent/unlawful interference
- Regaining Possession: may use force to regain possession of property that they reasonably believe was wrongfully taken only if they are in immediate pursuit of the taker. IOW, can’t pursue them three days later.
Excuse of Duress
…is a valid defense other than to intentional homicide.
Defendant must have reasonably believed another would imminently inflict death/great bodily harm upon them or their family.
- MPC allows this defense for property if the value of the property outweighs harm done to society.
- Always involves a human threat.
Necessity Defense
Defendant reasonably believed the crime was necessary to avoid imminent and greater injury to society
- Objective test
- Common Law: must be of natural force, e.g. a hurricane justifies breaking into a hosue for shelter
- Limitation: Not available if the D is at fault in creating the situation in the first place.
Mistake or Ignorance of Fact
Must show the defendant lacked the state of mind required for the crime.
“I didn’t know it was a crime! I thought that thing was mine!!”
Specific Intent: —> Mistake can be unreasonable.
Any Other State of Mind: —> Mistake must be reasonable.
Mistake or Ignorance of Law
It is generally not a defense that the Defendant thought it was not a crime, even if it was reasonable/on the advice of an attorney.
Entrapment Defense
Where the intent to commit the crime originated not with the defendant but with law enforcement officers, and the defendant was not predisposed to commit the crime prior to that contact.
Any time you see an undercover officer, think entrapment.
99.99% of the time, entrapment is NOT a valid defense, because they were predisposed to commit the crime before.
Offenses Involving Judicial Procedure
not often tested
-
Perjury: the intentional taking of a false oath (laying) with regard to a material matter that affects the outcome of the proceeding
- Subornation of Perjury: inducing another to commit perjury
- Bribery: Corrupt payment or receipt of anything of value for official action. Extends to nonpublic officials too.
Fourth Amendment
Protection from unreasonable searches and seizures
Fourth Amendment to States?
The Fourteenth Amendment incorporates the Fourth to the states
Remember to say that on the MEE question
Seizure
When, under the totality of the circumstances, a reasonable person would feel they are not free to decline an officer’s request or otherwise terminate the encounter
Arrest
Police take a person into custody against their will for interrogation or criminal prosecution
Arrest needs…
…probable cause.
- That is, trustworthy facts or knowledge sufficient for a reasonable person to believe the suspect has committed a crime for which arrest is authorized by law, in the totality of the circumstances.
Warrant?
Needed for home arrest.
Not needed for arrests in public places.
Station House Detention?
Police must have full probable cause for arrest to bring a suspect to the station for questioning against their will.
Invalid Arrest?
If they arrest you unlawfully, and later find probable cause and go forward with the prosecution, the *initial invalid arrest has no bearing/negative effect on the prosecution.
Terry Stops
The police have authority to briefly detain a person in a public place if they have reasonable suspicion of criminal activity/involvement, supported by articulable facts
- RS detainee is armed and dangerous? → Stop and Frisk
- Duration → diligent and reasonable manner in confirming/dispelling their suspicions.
Reasonable Suspicion
Less than probable cause.
More than a mere hunch.
Based on the totality of the circumstances.
Automobile Stops
May stop a car if reasonable suspicion that the law was violated
Police Dogs
“Sniff is not a search”
A dog alert to drugs can be probable cause
Note: But police cannot use a dog sniffing outside the home of a drug dealer
Police Mistake of Law
If the mistake was reasonable, the seizure is still valid
Seizure of All Occupants in an Automobile Stop
Passengers have standing to raise a wrongful stop as a reason to exclude evidence
Checkpoints and Roadblocks
You can stop cars based on a neutral, articulable standard that is designed to serve purposes closely related to a particular problem pertaining to automobiles/their mobility.
Pretextual Stops
If there is probable cause to believe a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate a crime for which they lack sufficient cause for the stop
Fourth Amendment Model
- Governmental Conduct?
- Standing?
- Valid Warrant?
- If no, exception?
Standing
Does the defendant have a reasonable expectation of privacy for the place searched/item seized?
Yes, if:
1. Person owned/had a right to possess place searched
2. Place searched is person’s home
3. Person is an overnight guest of the owner
4. Cell phone location information
5. Protection from sense-enhancing tech not in public use, e.g. thermal imager
No Expectation of Privacy: Bank records, car paint, style of handwriting/sound of voice, location of car in public, odors, garbage
Does the search involve a physical intrusion into a constitutionally protected area? (Totality of the Circumstances.)
Valid Warrant?
- Probable Cause that was
- Reasonably Precise as to the place/items searched?
Probable Cause
- Informers are good, but must be reliable based on TOC. Identity need not be revealed.
- Defendant can invalidate an affidavit that provided PC by showing:
a. A false statement in it;
b. The affiant intentionally or recklessly included it; and - The false statement was material to the finding of probable cause
Particularity
Warrants must be particular in the place/items searched/seized.
A warrant can authorize search of a **third party premises* belonging to nonsuspects, as long as there is PC evidence will be found there.
Neutral and detached magistrate
Who Can Execute a Warrant?
- Only police.
- Police may not bring 3rd Party unless they are needed to identify property.
- Violation of knock and announce rule will not suppress the evidence.
- A warrant to search authorizes detainment of occupants of the premises during a search, but not the search of that person.
Warrant Exceptions
- Search Incident to Arrest
- Automobiles
- Plain View
- Consent
- Stop and Frisk
- Hot Pursuit
- Administrative Inspections and Searches
- Wiretapping and Eavesdropping
- Shocks the Conscience
Search Incident to Arrest
- After valid arrest, police can search you and your wingspan as long as it’s contemporaneous with the arrest.
-
Automobiles. Police may search the passenger compartment incident to arrest ONLY IF at the time of the search:
a. The suspect is unsecured and may still gain access to the vehicle’s interior (double back)
b. Police reasonably believe evidence of the offense for which the person was arrested may be found in the vehicle. -
Technological Searches.
- Warrantless breath test & physical attributes of cell phone 👍🏾
- Blood test & cell data ❌
- For tech that was not in existence when 4A, the court will balance the degrees to which the SIA:
- Intrudes upon a person’s privacy again; and
- Is needed to promote legitimate govt. interests
Automobile Exception
If police have probable cause to believe a vehicle contains evidence of a crime, they may search the entire vehicle and any container that might reasonably contain them.
BUT NOT IF VEHICLE IS IN THE CURTILAGE OF THE HOME.
Broader than automobile nuance in SIA, because here, they can search the trunk.
Belongings and Containers: If PC only to search a container, they may search it and not other areas.
PC CAN ARISE AFTER THE CAR IS STOPPED.
Plain View Doctrine
Police may make a warrantless seizure based on PVD when they are:
- Legitimately on the premises;
- Discover evidence of crime or contraband
- See such evidence in plain view; and
- Have PC to believe the item is evidence of the crime
Consent Exception
A warrantless search is valid if the police has voluntary consent.
Authority to Consent: Any person with an apparent equal right to use/occupy the property may consent, BUT NOT WHEN the other occupant, the subject of the search, is present and objects. If the co-occupant is removed for an unrelated reason, police may act on the consent of the other occupant.
Knowledge of the right to withhold consent is not a prereq. But! Police cannot lie and say they have a warrant to get consent.
Scope extends to all areas a RP would believe it does.
Stop and Frisk Exception
Terry Stop. Brief detention to investigate suspicious conduct.
Terry Frisk. Pat down out outer clothing to check for weapons.
- May seize any item police reasonably believes, based on plan feel, is weapon/contraband. Watch out for the word “manipulated,” because that’s not plain feel!
Automobile Stops: Vehicle properly stopped for traffic violation and officer reasonably believes driver or passenger may be armed and dangerous, officer may:
- Conduct a frisk; and
- Search the vehicle, limited to areas in which weapon may be placed
Hot Pursuit
- Evanescent Evidence: Evidence that might disappear quickly. E.g. scrape under fingernails.
-
Hot Pursuit of a fleeing felon → may pursue into a private dwelling. Within 15 minutes.
- Misdemeanor Suspect: does not always justify a warrantless entry into home. - Emergency Aid/Community Caretaker: Police may enter premises without warrant if they face an emergency that threatens health/safety.
Administrative Inspections and Searches
Not often tested
The following warrantless searches have been upheld:
1. Searches of airline passengers
2. Drug tests of public school kids in extracurriculars
3. Public school searches by school officials
Public school searches by school officials
only reasonable grounds is necessary, which is:
- Moderate chance of finding evidence;
- Reasonably related to objectives of search;
- Search not excessively intrusive in light of age/sex of student/nature of infraction
Wiretapping and Eavesdropping Exception
-
Unreliable Ear: Speaker assumes risk other person consents to government monitoring or is an informer.
- You talk to a friend at Starbucks and the friend is wearing a wire. That’s admissible. - Uninvited Ear: Speaker has no 4A claim if they make no attempt to keep the conversation private.
Shocks the Conscience Exception
torture or something
Confessions
Must be voluntary (TOC)
- Harmless Error: conviction need not be overturned if overwhelming evidence of guilt
- You need compulsion for a confession to be involuntary. (Mental illness doesn’t count.)
Sixth Amendment Right to Counsel
Applies after judicial proceedings have begun (formal charges filed).
Distinct from 5A right to counsel, which applies before formal charges, while is just detained/arrested
Fifth Amendment Right to Counsel
While one is detained/arrested.
But does not apply in the following areas:
- Blood sampling
- Taking of handwriting/voice
- Precharge/investigative lineups
- Photo IDs
- Preliminary hearings to determine PC to detain
- Brief recesses during defendant testimony
- Discretionary appeals
- Parole and probate revocation proceedings
- Post conviction proceedingsU
Unrelated/Uncharged Offenses and the Right to an Attorney
Right to an attorney does not apply when you’re questioned on matters other than that which you’re charged with.
E.g. You’re formally charged with burglary and have an attorney. Police must question you on burglary charge with attorney present. They may question you on DRUG CHARGE WITHOUT attorney present.
Waiver of the Right to an Attorney
Must be knowing and voluntary.
Does not require presence of counsel.
Remedy when Right to an Attorney is Not Fulfilled
Harmless error applies to deprivations of counsel.
- Attorney not there during a time you don’t have 6A right → harmless error test
- But if defendant did not have counsel during trial → automatic reversal of the conviction
Impeachment and Right to an Attorney
A statement attained outside the presence of counsel may still be used to impeach contrary testimony, even though inadmissible in the main case.
Miranda
Required when a suspect is in custodial interrogation
Custodial Interrogation?
- Feel they are not free to terminate/leave.
- Environment presents as inherently coercive pressures as a station house does.
E.g.: ““Here, the onlooker had not been arrested, had not been placed in handcuffs, nor was he even at a police station. Being unconstrained at a crime scene probably would not constitute being “in custody” to a reasonable person; as a result, Miranda warnings were not required.”
Detainee Interrogated by an Informant?
Miranda not needed, because they are not being interrogated when D does not know the informant is working for the police.
Interrogation Requirement
Interrogation includes any words/conduct that the police should know would likely elicit an incriminating response.
- Miranda not needed before spontaneous statements are made by a detainee.
- If you see “blurted out” or something, no Miranda needed
Right to Waive or Terminate Interrogation
If the detainee…
- Does Nothing: No waiver, but neither has the detainee asserted any Miranda right. → Police may continue interrogation.
- Waives Rights: Must be knowing and voluntary (TOC).
-
Invokes R to R Silent: Must be explicit, unambiguous, and unequivocal. → Police must scrupulously honor that and not badger them. But they can continue after:
- Significant time;
- Re-Mirandazing; and
- Asks questions separate from the other crime.
-
Invokes R to Counsel: Invocation must be unambiguous and specific. Questioning must cease until counsel arives, unless:
- Detainee waives, including by reinitiating questioning; or
- **Released from interrogation back to normal life → 14 days have passed!! (Big one).
Effect of a Miranda Violation
Evidence obtained in violation of Miranda is inadmissible.
But it may be used to impeach.
Nontestimonial Fruits of an Unwarned Confession:
If detainee gives police information that leads to nontestimonial evidence, and wasn’t given Miranda:
- Failure Purposeful → Suppressed
- Failure by Accident → Not Suppressed
Public Safety Exception
SCOTUS allows interrogation without Miranda when there is a public safety concern. E.g. a shooting.
Pretrial Identification
6A right to counsel at post-charge lineup or showup.
No right to counsel at photo identifications.
Due Process Standard
Defendant can attack ID if it is unnecessarily suggestive + substantial likelihood of mis-ID.
Remedy: Exclusion of in-court ID.
E.g. Victim says the culprit was a white male with a shaved head. Victim is brought to a lineup to identify among eight men, but only one of them is white with a shaved head. Violates Due Process.
Exclusion of In-Court Identification
When there is an unconstitutional pretrial ID, the witness can still make the ID in court if there is an independent source for it.
Admissibility of ID evidence…
…should be determined at a suppression hearing in the absence of jury.
Government bears burden of proving:
- Counsel was present;
- Accused waived counsel; or
- There is an indep. source for the in-court ID
Defendant must prove DP violation.
The Exclusionary Rule
Unconstitutionally obtained evidence is excluded at trial
Fruit of the Poisonous Tree
Evidence obtained from the exploitation of unconstitutionally obtained evidence is also inadmissible.
Exceptions to the Exclusionary Rule
- Violation was not purposeful → Fruit of the PT is admissible
- Evidence obtained from an independent source
- Attenuation: Causal link between the police misconduct and the evidence is broken
- D’s Intervening Act of Free Will: Defendant is illegally arrested, released, gets an attorney, comes back, confesses → Admissible
- Inevitable Discovery
- Violations of the Knock and Announce Rule → Admissible Anyway
- Live Witness Testimony is difficult to exclude on ER grounds
- In-Court ID: D may not exclude a witness’s in-court ID on the ground that it’s the fruit of an unlawful detention
The Exclusionary Rule is Inapplicable to:
- Grand Juries
- Unless evidence is obtained in violation of the federal wiretapping rule - Parole Revocation Proceedings
- Civil Proceedings
Good Faith Reliance on the Law
ER does not apply when the police arrest someone erroneously but in good faith thought they were acting pursuant to a valid warrant.
Exceptions:
- Affidavit so lacking in PC or particularity no reasonable officer would’ve relied on it
- Police/prosecutor misled magistrate
- Magistrate is biased
Fruit of the Poisonous Tree and Impeachment?
Some fruit of the poisonous tree may still be used to impeach D’s credibility if they take the stand.
- Specifically if they voluntarily confess
- Evidence obtained from illegal search can impeach the D’s statements, but not others’
If Illegal Evidence is Admitted, What Applies?
Harmless Error!
If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the government can show beyond a reasonable doubt the error was harmless, e.g. a mountain of other evidence
When there is No Warrant + Significant Constraints on Arrestee’s Liberty?
Preliminary Hearing to Determine Probable Cause within 48 hours
Grand Juries
- Conducted in secret
- D has no right to notice that GJ is considering an indictment against them
- No right to counsel or Miranda
- No right to have evidence excluded
- No right to challenge subpoena on PC grounds
- Conviction from indictment issued by GJ from which minority group is excluded will be reversed
Sixth Amendment Right to a Speedy Trial
Determined by TOC: the LWRP Factors:
- Length of Delay
- Reason for Delay
- Whether Defendant has asserted the right
- Prejudice to Defendant
When Does the 6A Right to a Speedy Trial Attach?
When defendant is arrested/charged.
Bar Tip: Speedy trial issue raised → check the timing. Has the defendant been arrested or charged? If not, no right to a speedy trial.
Prosecutorial Duty to Disclose Exculpatory Information and Notice of Defenses
Failure to disclose material, exculpatory evidence is grounds for reversing the conviction if:
- Evidence is favorable to defendant; and
- Prejudice has resulted
Competency to Stand Trial
Incompetency is a bar to trial, not a defense to the underlying charge. (Meaning, that’s different from an insanity defense.)
Based on mental condition at the time of the trial.
If D regains competency, can be tried and convicted.
Right to Unbiased Judge
Due process violated if the judge has actual malice against the D or financial interest in the trial’s result
Right to Trial by Jury
Only for “serious” offenses, which are when imprisonments of >6 mos. is authorized
No right to jury in juvenile delinquency proceedings
How Many Jurors?
6-12
Right for Jury Selected from Cross-Section of hte Community
D need only show underrepresentation of a distinct/numerically significant group to show jury trial right is violated.
The jury itself doesn’t have to be representative
Peremptory Challenges
May use for any reason except race/gender
Right to Impartial Jury
Standard: For-cause = juror’s views would prevent/substantially impair performance of their duties
Right to Questioning on Racial Bias: D is entitled to questioning on voir doire specifically directed to racial prejudice whenever:
1. Race is bound up in the case or
2. D is accused of an interracial capital crime.
Right to Counsel
Violation at Trial → Reversal
Nontrial Denials of Right → Harmless Error Test
Waiver of Right to Counsel
Defendant may waive if:
- Knowing and intelligence
- Defendant competent for pro se
Ineffective Assistance is Shown By:
- Deficient performance by counsel; and
- But for the deficiency, the result would have been different.
Must be specific.
Right extends to the first appeal.
Sixth Amendment Right to Confront Witness
Required.
But not required when prevention of confrontation serves an important public purpose, e.g. protecting a child witness from trauma.
Introduction of Co-Defendant’s Confession
If two persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits use of that statement, even where the confession interlocks with D’s own confession, which is admitted.
BUT it CAN be admitted if:
All portions referring to the other defendant can be eliminated
COnfessing defendant takes the stand and subjects themself to cross-examination r.e. the statement; OR
Confession used to rebut defendant’s claim that confession was obtained coercively.
Prior Testimonial Statement of Unavailable Witness
Not Admissible unless:
- Declarant unavailable; and
- D had opportunity to cross-examine them when teh statement was made
Death Penalty
- Must be imposed under the statutory scheme that gives the jury reasonable discretion, full info, and guidance;
- No death penalty for rape
- Cannot execute a prisoner who is insane at the time of execution
- No death penalty for intellectually disabled or under-18s
Habeas Coorpus
No right to appointed counsel
4A Privacy Expectation in Cells?
No
Double Jeopardy attaches when…
Jury Trial: Empaneling and swearing of jury
Bench Trial: First witness sworn in
Double Jeopardy Exceptions
- Hung Jury
- Manifest Necessity to abort the original trial. (Medical emergency is the big one; D has heart attack halfway through trial.)
- Successful Appeal: You may retry a D after they successfully appealed the conviction, unless the grounds for reversal was insufficient evidence. But not for a greater offense than the original!!
- Defendant Breached Plea Bargain. Once you agree to testify as part of a plea against, say, a co-defendant → you are agreeing to testify at the first and any subsequent trial. If you have a change of heart after the first time and don’t want to, that does not prevent the prosecutor from reinstating the higher charges against you.
- Multiple Charges: Defendant could have been tried for multiple charges in a single trial but chose to have them tried separately.
Double Jeopardy - Two Crimes
Two Crimes are not the same offense when each crime requires proof of an element the other does not.
Double Jeopardy - Lesser Included Offenses
-
Lesser Included Offenses: Greater offense bars retrial for lesser included offenses, and vice versa.
- E.g. Robbery includes the lesser crimes of larceny and assault.
- Tried for Robbery? → Can’t Be Tried for Larceny
- Tried for Larceny? → Tried for Robbery
-
Exception: New Evidence. Unlawful conduct that is subsequently used to prove the greater offense -
- Has not occurred at the time of prosecution for the lesser; OR
- Has not been discovered despite due diligence
E.g. D punches V in the face, D convicted of battery, V dies, D can now be charged with murder.
Double Jeopardy - Separate Sovereigns
Prohibition a against double jeopardy does not apply to trials by separate sovereigns (state + municipalities = same sovereign)
Occasionally raised on the bar!! Separate sovereigns can try a defendant for the same offense. Beware of facts that try to divert you from this easy issue.
Privilege Against Self-Incrimination
Anyone in any type of case can assert the privilege, ONLY IF THE ANSWER MAY TEND TO INCRIMINATE THEM.
Privilege Against Self-Incrimination + Civil → Criminal Proceedings
Privilege **Must be Claimed in Civil Proceedings
→
…to Prevent Privilege from being Waived for a Later Criminal Prosecution
Privilege Against Self-Incrimination + Witness Stand
Criminal defendant has the right not to take the witness stand and not to be asked to do so.
Privilege Against Self-Incrimination + Non-Criminal Defendants
In non-criminal defendant + trial situations, they have to be sworn in as a witness and be asked questions.
5A compels them to listen to the questions but NOT TO RESPOND TO THEM.
5A Protects Against What Evidence?
5A protects testimonial or communicative evidence.
Not real or physical evidence.
- So you can be compelled to produce a blood/hair sample, handwriting, DNA cheek swab….
5A and Documents
A person served with a subpoena requiring production of documents tending to incriminate them has no 5A right to refuse, because producing docs doesn’t involve testimonial self-incrimination.
Comments on Defendant’s 5A Silence?
A prosecutor may not comment on the D’s silence after receiving Miranda warnings or at trial.
But the prosecutor can comment on this in response to D’s assertion that D was not allowed to tell their story.
When is the 5A Right Against Self-Incrimination Violated?
Only when the person’s compelled statements are used against them in a criminal case.
Silence Before Miranda
If a suspect chooses to remain silent before Miranda, that silence can be used against them in court.
Immunity + Privilege
D may be compelled to answer if they are granted adequate immunity from prosecution.
Use and Derivative Use Immunity
Guarantees the witness’s testimony/evidence will not be used against the witness.
However, W may still be prosecuted if the P shows the evidence to be used against them was derived from a source independent of that immunized testimony.
Why? In part, because testimony obtained by a promise of immunity is coerced, and therefore involuntary. (Except in perjury trial.)
Can federal prosecutors use evidence obtained as a result of state grants of immunity, or vice versa?
No
What is the Scope of Immunity?
Immunity extends only to the offenses to which the question relates and does not protect against perjury committed during the immunized testimony.
Waiver of Privilege Against Self-Incrimination
D waives by taking the witness stand.
W waives by disclosing incriminating info.
School Searches
A school search will be upheld only 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 in light of the age and sex of the student and the nature of the infraction.”
