Midterm Mar 19 - Crim Con and Crim - BR2

Question 1

What are the elements to prove Ineffective Counsel under 6A?

Answer 1

Assess AFTER counsel’s performance (right?)
Presumption: Counsel’s performance was indeed EFFECTIVE

Exception: Elements x2 of showing INEFFECTIVE e AoC
1) Counsel made Deficient Performance
(significantly below the range of reasonableness expected by attorney)
(HARD TO SHOW)
AND
2) Counsel Deficient Performance Resulted in Prejudice
(reasonably likely that it made material difference in outcome)
(EVEN HARDER TO SHOW)

Ex: defendant opened himself up to deportation but atty never warned him - coining of the term CRIMMIGRATION (Padilla) - yes IEAoC

Ex. not putting any mitigating evidence on during sentencing phase - yes IEAoC

Ex. failing to inform client of guilty plea offer - yes IEAoC

Question 2

What are the elements of waiver of right to counsel under 6A?

Answer 2

Waiver of AoC i.e. Right to Represent Oneself: must be
1. knowing
AND
2. intelligent
AND
3….
When defendant previously DID request court-appointed counsel for purposes of interrogation?
Subsequent defendant waiver of AoC DOES require approval by court-appointed counsel
OR
When defendant previously DID NOT request court-appointed counsel for purposes of interrogation?
Subsequent defendant waiver of AoC DOES NOT require approval by court-appointed counsel

Question 3

What are the freedoms under 6A?

Answer 3

More freedoms than any other amendment:

speedy trial
How to ascertain if speed (I think speed from time of charges to time of beginning of trial…NOT speed of trial itself) was insufficient? Weigh factors, ToC…..
* Length of delay
Ex. 8.5 years from federal indictment to arrest = presumptively prejudiced (Doggett v. US)

• Reason for delay: attribute to defense or to prosecution (makes sense - you should not be able to cause delay and then claim the delay is unconst’l)
  Ex. Delay from defense attorney shenanigans should not be attributed to govt
• Whether right to speedy trial is even asserted by defendant
• Prejudice resulting from delay

public trial

trial by jury
* Is a right fundamental to American scheme of justice
* is a right only for “serious offense” i.e. has MAX AUTHORIZED sentence of AT LEAST 6 months (McKeiver v. PA 1971)
*

trial by impartial jury
* Impartial = fair cross section of the community
* e.g. excluding women from jury is NOT fair cross section (Taylor v. Louisiana)
* TN requires 12 jurors
* Smaller juries tend not to deliberate effectively (Bellew v. Georgia)

notice

confrontation

compulsory process

assistance of counsel:

RTC under 6A: for all critical stages after formal proceedings (charging/indictment) including at trial…compared to RTC under 5A: *for custodial interrogations *

Question 4

When must Miranda Warnings be given?

Answer 4

Miranda Warning is required for a defendant’s statement to be admissible, when, no matter how minor a crime, the scenario has 2 elements:
1) Person is in custody
Reasonable person of same age
“Would conclude they are NOT free to terminate and leave”
Relevant environment has inherently coercive pressures as “station-house”
e.g. defendant in handcuffs but not in station house – YES in custody
e.g. defendant in police car but not in station house –YES in custody
e.g. defendant pulled over in own car for running red light, being asked if you have been drinking…that is NOT custody? (checking with Hudson)
Barbri pg 51: traffic stops are presumptively temporary and brief – NOT unduly coerced ∴ not custody (WEIRD)

AND

2) Person is subject to interrogation
Interrogation definition: “any word or action by police that police should know are reasonably likely to elicit incriminating response”

Spontaneous statements i.e. statements NOT made in response to question? NOT interrogation
Follow-up questions to spontaneous statements? Interrogation

RTC under 5A: for custodial interrogations cf. RTC under 6A: for all critical stages after formal proceedings (charging/indictment) including at trial

Question 5

How should “successive confessions” be evaluated as to admissibilty with respect to Miranda?

Answer 5

“Successive confessions” scenarios and Miranda
e.g. something like:
Suspect X makes confession 1 under “custodial interrogation” WITHOUT proper Miranda Warning
…later followed by…
Suspect X makes confession 2 under “custodial interrogation” WITH proper Miranda Warning

Is confession 2 (the SECOND confession) valid?

• If extraction of confession 1 was “calculated” by police then favors INVALID confession 2 i.e. probably inadmissible despite proper Miranda
  BUT
• If extraction of confession 1 was “unplanned and inadvertent” by police then favors VALID confession 2 i.e. probably admissible

Question 6

What is the required content of a valid Miranda Warning?

Answer 6

Miranda Warning content (verbatim not needed)
(1) “You have the right to remain silent”
(2) “Anything you say can be used against you in a court of law”
(3) “You have the right to an attorney and to have the attorney present during questioning”
(4) “If you cannot afford an attorney, one will be appointed for you before any questioning begins”

Question 7

How do double jeopardy protections work and what is the rationale?

Answer 7

5A “Nor shall any person subject for the same offense be put twice in jeopardy of life or limb”

Rationale for DJ protections
* State has resources and power to make 1 attempt
* Multiple attempts would raise risk of finding innocent defendant guilty
* Multiple attempts would increase embarrassment, expense, ordeal for defendant

Most common iteration - when prosecutors STACK criminal offenses that are TOO MUCH related (Blockburger test)
Common with ASSAULT + MURDER combos
(though typically we think of DJ when a person is RETRIED)

Grand jury is NOT subject to double jeopardy rules, b/c DJ dos not attach to GJ proceedings

Question 8

What are 5 unique features of the right to indictment by grand jury under 5A?

Answer 8

Defendant has “right to indictment by GJ” at federal level and some state constitutions

BUT…
GJ is not subject to hearsay rules
GJ is not subject to exclusionary rules
GJ witness is NOT ENTITLED to Miranda warnings ∴ GJ witness can be convicted of perjury, w/o ever having gotten Miranda warning!
GJ witness is NOT ENTITLED to right to counsel in grand jury room… but can consult counsel outside jury room
GJ is not subject to double jeopardy rules

Question 9

What are the overall differences between 5A and 6A?

Answer 9

5A: criminal defendant rights set forth negatively i.e. as limitations on what govt cannot do TO criminal defendant

6A: criminal defendant rights set forth positively i.e. “right to fair trial” bundle

Question 10

How does due process under 5A impact criminal procedure?

Answer 10

PDP under 5A: notice and hearing baseline, plus other stuff…
Police methods that “shock the conscience” violate SDP e.g. police beating in bedroom resulting in emergency stomach pump (Rochin v. CA 1952)
Government failing to timely disclose material exculpatory evidence is grounds for reversal if
MEE is favorable to defendant
AND
MEE if presented would have reasonable probability of different outcome i.e. prejudice resulted
Cf. If prosecution other evidence strongly supported outcome, prejudice did not result

SDP under 5A: underlying law is rational and not arbitrary, regardless of procedure

Question 11

What is the analysis framework of 4A?

Answer 11

Standing Required
State Action Required
State Action Must trigger 4A protections
State Action Must satisfy govt evidentiary burden i.e. satisfy 4A protections

Question 12

What constitutes state action under 4A?

Answer 12

State action requiresthat the Government or govt agent is doing the intruding…

Examples
§ Publicly paid police, at all times on the clock: state action
§ Private individual directed by police: state action
§ Public school official: state action
§ Publicly paid police, off clock acting as security guard: not state action
□ Exception: if deputized by police at the time
§ Private person: landlord, parents: not state action
Exception: if deputized by police at the time

(not sure how govt inspectors etc fit in – somehow they are deputized?)

Question 13

How is standing determined to assert 4A rights?

Answer 13

Standing is required for that party to invoke 4A protections for search/seizure/arrest

Standing requires party to have…
REP in that PLACE/THING SEARCHED…
REP is 3 part test
2 prongs under Katz - Harlan concurrence criteria

PLUS consider ToC

**1) existence of subjective REP **

e.g. Lock on assigned locker? Favors EoSREP for person assigned the locker
…But some courts weigh the fact the lockers are SCHOOL property not student

AND

**2) existence of objective REP **

e.g. Broad dragnet? Disfavors EoOREP in that thing/place
e.g. Individualized suspicion, drug dog alerted? Favors EoOREP in that thing/place
e.g. Pattern of arrests, overdoses, finding of contraband etc.? Favors EoOREP in that thing/place

AND
**3) Consider ToC… **

Examples:
ToC: ownership of that thing favors standing
ToC: right to possession of that thingfavors standing
□ Includes own body
□ Includes party controlling/possession rental car even if the party is not listed on rental agreement
ToC: owning that place OR living in that place OR overnight guest in that place favors standing
ToC: not owning that place AND not living in that place AND not overnight guest in that placefavors NO standing
□ e.g. few hours inside someone else’s home, short of overnight guest: favors NO standing
□ e.g. doing business inside someone else’s home, short of overnight guest: favors NO standing
ToC: zenith of privacy expectation exists in HOMES, more so than vehicles
ToC: in UNLAWFULLY stopped car: all occupants - favors standing
ToC: in LAWFULLY stopped car: occupants who do not own car and do not own items in car: favors NO standing
ToC: searches of co-defendant: NO automatic standing
ToC: seizures of evidence from co-defendant: NO automatic standing

Question 14

How to determine if a state action intrustion TRIGGERS 4A protections?

Answer 14

If the state action intrusion IS NOT search, seizure, or arrest
Then 4A protections are NOT triggered, the end

If the state action intrusion IS search, seizure, or arrest
Then 4A protections are triggered –> govt has evidentiary burden to overcome 4A protections

SEARCH occurs
□ Blood test: yes, is a “search”
□ Preventing driver from driving away: yes, is a “search”

SEIZURE occurs
ARREST occurs
□ ToC
□ Reasonable peron would feel NOT free to decline/terminate encounter
□ Physical application by officer
or
□ Submission to officer

Question 15

How to determine if the govt has satisfied evidentiary burden of reasonableness to overcome 4A protection when a warrant HAS BEEN obtained? I.e. what makes a warrant valid?

Answer 15

A valid warrant makes search, seizure, or arrest REASONABLE (the touchstone of 4th Amendment)

Valid Warrant Requirements
Valid Warrant must satisfy Probable Cause from 4 corners of warrant
Many police are not excellent writers i.e. opportunity to go after their writing on warrant
Nashville police get good instruction though (Hudson teaches them!!)
“Drug Courier Profile” alone is probably insufficient (Marconi)

Valid Warrant must be narrow and not overly broad

Valid Warrant and 4A “Particularity Clause” <–especially for Home Searches
® Warrant must be narrow, not overly broad
® Warrant must not be general/roving warrants/writ of assistance

Defective Warrant GFE by police…Warrant is ok as long as… (same as here)
○ Officer reliance on defective warrant was reasonable
○ AND
○ Officer reliance on defective warrant was in objective good faith

Exceptions to Defective Warrant + GFE by police (same as here) - FI WA PU PU
Issuing magistrate used false info and affiant knew or should have known of falsity of info
Or
Issuing magistrate wholly abandoned judicial role
OR
Warrant lacked probable cause so badly to point of unreasonableness
OR
Warrant lacked particularity so badly to point of unreasonableness

Valid Warrant, if based on Informant information - existence of probable cause depends on ToC
Informant veracity/credibility
Note Citizen informant veracity/credibility generally&raquo_space; criminal defendant veracity/credibility because of “currying favor” effect
AND
Informant basis of knowledge (can overcome otherwise LOW veracity)

Question 16

How to determine if the govt has satisfied evidentiary burden of reasonableness to overcome 4A protection when a warrant HAS NOT BEEN obtained?

Answer 16

• If warrant HAS NOT been obtained: search, seizure, or arrest is presumptively UNREASONABLE
  There are 6 exceptions

SILA -» and Protective Sweep if RBTAAP
Plain View
Consent - but watch if COERCION by police negates the alleged consent
Stop and Frisk
Exigent Circumstances
Public Schools

Question 17

How does the 4A warrant exception for SILA work?

Answer 17

SILA Search Incident to Lawful Arrest: upon lawful arrest of arresttee, a warrantless 4A search of a certain physical area relative to the arrestee is “reasonable”….

General
SILA is intended to protect officer + preserve evidence
But if underlying arrest is unconstitutional arrest, then SILA is unconstitutional SILA

SILA can extend to what physical area?
Wingspan and Protective Sweep Rule i.e. SILA search geographically permitted incident to arrest…

Within but not beyond arrestee’s arm’s reach of arrestee AS arrestee moves…
AND
Within but not beyond arrestee’s arm’s reach of arrestee AS arrestee moves inside own home…
AND
Within AND BEYOND arrestee’s arm’s reach (i.e. protective sweep) only IF police have reasonable belief that armed accomplices are present RBTAAP

e.g. after doing a home arrest, police want to expand SILA to BEYOND arrestee’s arm’s reach, to rest of house? Police must have RBTAAAP

Exception to exception for Cell Phones within SILA (CPW-SILA area)
▪ Cell phones have SO much personal info (Riley)
▪ ∴ presumptively unreasonable to search CPW-SILA area
▪ ∴ warrant generally required to search cell phone, even CPW-SILA area

Question 18

How does the 4A warrant exception for Plain View occur?

Answer 18

Requirements x 3 to make it “reasonable”
1. Police are lawfully on premises
AND
2. Police see item(s) via plain view
AND
3. Those viewed items are: immediately apparent (probable cause std) to be contraband, from police point of view (IACPC-PPOV)

Ex. Police have warrant, but warrant does not specify opaque balloon, but when executing warrant, police see item of opaque balloon, an item generally known to police (maybe not to regular person) to contain narcotics?
Yes this satisfies IACPC-PPOV
Remember IACPC to police is the standard, not IACPC to a regular person. Doesn’t matter if regular person would not know opaque ballons generally contain narcotics

Ex. Police have warrant, but warrant does not specify expensive stereo, but when executing warrant, police see expensive stereo item and then check serial number?
NO does not satisfiy IACPC-PPOV. Expensive stereo in and of itself is not contraband even from police viewpoint

Question 19

How can a Consent by Person 4A search be reasonable despite lack of valid warrant?

Answer 19

ToC
Knowingly by person is required
AND
Voluntarily by person is required
AND
CANNOT be coerced by police upon person

e.g.
Police harsh tone <–favors existence of coercion, not knowingly and voluntarily

e.g.
Police displaying weapon <–favors existence of coercion, not knowingly and voluntarily

e.g. person walks into police station and announces they want to give confession, no unduly coercive police behavior? Consent by Person is satisfied even though psychiatrist later diagnoses person with mental illness affecting rationality

Question 20

How does the stop and frisk approach meet “reasonableness” despite lack of valid warrant?

Answer 20

Stop and Frisk (Terry)

Stop: police must have reasonable suspicion
If police have reasonable suspicion, can also compel person to identify

Frisk: police must have reasonable belief person is armed and dangerous
expanded this to belief person has DRUGS (MN v. Dickerson) – heavily criticized

Question 21

What are 4 types of exigent circumstances which satisfy “reasonableness” despite lack of valid warrant?

Answer 21

Exigent Circumstances when immediate police action needed

4 Types: HP IT TE PE
Exigent Circumstances:Police are in Hot Pursuit
Exigent Circumstance:**Police face Immediate Threat **

Exigent Circumstances:Police must Thwart Escape

Exigent Circumstances:Police must Preserve Vital Evidence
◊ e.g. suspect destroying evidence when police at door
◊ e.g. evanescent evidence (alcohol could dissipate from blood, tissue could be washed from fingernails)

Question 22

How do warrantless searches at public schools meet the “reasonableness” standard despite lack of valid warrant?

Answer 22

SEARCHES in Public Schools

Search must be justified at Inception of search (N.J. v. TLO)
e.g. Students subject of rank rumors do not weigh as heavily as credible evidence for Search

e.g Students with gang membership/gang connection is NOT alone sufficient for individualized suspicion necessary for Search (slide 102)
AND
Search must be reasonable in scope
AND
and not overly intrusive of student given age/sex/nature of alleged infraction (N.J. v. TLO)

Search of any student via strip search: disfavored, because of privacy concerns, degradation to human dignity (Safford v. Redding) but not per se

Generally need a warrant to search cell phone (Reilly case)
Roberts: cell phone has so much info

But does Reilly apply with full force in public school settings?
Generally: courts are split
6th circuit: need a warrant: Student’s depressive tendencies + drug abuse are NOT alone sufficient to search cell phone (6th circuit)

MN held this violated 4A and 1A

But don’t overlook CONSENT exception as long as truly voluntary
ORDERING favors nonconsensual

Drug Test in Public Schools
Drug Test Policy Ok for a subgroup (i.e. student athletes NOT entire body)
IF there is evidence the subgroup (e.g. student athletes) are part of the drug problem
(Acton - student athletes)
(Lindsay Earls - extended to band members and any student in any student org! )

Look out for state constitutions giving HIGHER privacy protections (e.g. TN has Art 1 § 7 adding to 4A)

Question 23

How are vehicle searches special under 4A?

Answer 23

If initial stop before subsequent search of vehicle was INVALID…
e.g. no supporting traffic code violation, mere pretext: INVALID initial stop
Then subsequent search of auto is unreasonable ∴ defendant wins

If initial stop before subsequent search of vehicle was VALID…
e.g. traffic code violation: weaving/failure to yield/failure to stop/failure to signal: VALID initial stop
Then ask if probable cause existed for subsequent search of vehicle
if valid initial stop AND police have WARRANT…
PC existed in warrant, –> full vehicle subsequent search is reasonable
OR
If valid initial stop AND police do NOT HAVE warrant…
But PC exists despite lack of warrant –> full vehicle subsequent search is reasonable

Nuance:
DOES include search of vehicle 3 days after police towed vehicle to police station
DOES NOT include search of vehicle parked in curtilage of home (Collins v. Virginia)
Key: vehicle search exception does NOT extend past vehicle into HOME (remember zenith of REP exists in home EXCEEDS REP in vehicle itself)

Justification:
Cars are mobile and can physically move quickly with evidence
Cars have reduced REP as compared to homes (which are zenith of privacy)
Cars are pervasively regulated by govt

Question 24

How are home arrests and home searches special under 4A?

Answer 24

Warrantless nonemergency home arrest? Unconstitutional

Warrantless home search? Presumed unreasonable

Warrant search of home? maybe reasonable- keep eye on sufficient particularity of underlying warrant
e.g. wrong address for bomb tip but they find obscene books - Don King placed the call Mapp v. Ohio

Question 25

What are the legal standards required for various police encounters with civilians?

Answer 25

Arrest: requires probable cause by police
Stop and frisk: requires reasonable suspicion by police
Attempted consensual encounters: requires no standard by police

Question 26

What happens with evidence when the government fails reasonability i.e. fails evidentiary burden in violation of 4A, 5A, 6A, 8A?

Answer 26

Exclusionary Rule
General: if that evidence was obtained in violation of 4A, 5A, 6A, 8A…thenprosecution cannot use THAT evidence as part of their case-in-chief (case in chief = portion of trial when the party with the burden of proof is presenting their case….as opposed to the portion of the trial when party without the burden of proof is presenting their rebuttal to case in chief)….

Purpose of Exclusionary Rule:
to prevent DRAGNET stuff
to prevent lack of individualized suspicion stuff
usually arises in 4A

But see 15 exceptions!

Question 27

What are 1-5 of the 15 exclusionary rule exceptions?

GJ CP PR A K

Answer 27

1. GJ: In grand jury proceedings: evidence obtained in violation CAN be used. Lots of people think GJ altogether should be abolished: “a grand jury would indict a ham sandwich”
2. In civil proceedings: evidence obtained in violation CAN be used
   □ e.g. IRS proceedings
   □ e.g. immigration proceedings (although immigration punishments in reality rise to CRIMINAL punishment)
3. In parole revocation proceedings: evidence obtained in violation CAN be used
   rationale: parolees have lower rights
4. When agency internal policies were violated: evidence obtained in violation of agency internal policy be used
5. When knock and announce was violated: evidence obtained in violation CAN be used
   rationale: too attenuated

Question 28

What are 6-10 of the exclusionary rule exceptions?

HIIIA

Answer 28

6) When violation was no more than harmless error: evidence obtained in violation CAN be used
7) When evidence is used for Impeachment purposes: evidence obtained in violation CAN be used
□ exception: if evidence was TRULY INVOLUNTARY confession: cannot be used even for any purpose, impeachment otherwise

8) Breaking link of causation: independent Source
□ e.g. intervening act of defendant free will
9) Breaking link of causation: Inevitable Discovery
□ e.g. prosecution can show evidence would have been discovered whether or not unconstitutional act occurred
e.g. searching car before arrest is ok since arrest would’ve allowed subsequent SILA search of car anyway
10) Breaking link of causation: Attenuation Doctrine <–Hudson: this is dangerous. Strieff case
Consider…
Temporal proximity of official misconduct
Purpose of official misconduct
Flagrancy of official misconduct

Question 29

What are 11-15 of the exclusionary rule exceptions?

GFEs: DW BP BS C RIM

Answer 29

11) Exclusionary Rule GFE: defective warrant: evidence obtained using Defective Warrant CAN be used (same as here)
□ Exception to Exclusionary Rule GFE DW: defective warrant x 4: evidence canNOT be used (same as here)

12) Exclusionary Rule GFE: police relied in good faith on binding precedent from appellate court later overturned by SCOTUS: evidence obtained in violation CAN be used

13) Exclusionary Rule GFE: police relied in good faith on binding statute or ordinance later declared unconstitutional: evidence obtained in violation CAN be used

14) Exclusionary Rule GFE: police relied in good faith on info with clerical errors: evidence obtained in violation CAN be used
e.g. an arrest warrant that had been withdrawn but remained on the computer system due to an error by court
15) Exclusionary Rule GFE: police made reasonable interpretive mistake in interpreting law: evidence obtained in violation CAN be used
□ e.g. police misinterpreted law as requiring 2 working headlights but reality is only 1 required

Question 30

What is 4A and why?

Answer 30

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”

4A is one of the “of the people” amendments
4A touchstone is INDIVIDUALIZED suspicion
Not just lists/dragnets/generalized suspicion [unless supported by valid warrant]
The Defective Warrant GFE operates as one of the Exclusionary Rule GFEs
Probable Cause has several definitions
PC lowest standard: “that seizable evidence will be found on place/person to be searched” (Carroll v. US)

Question 31

What are the 3 pieces of 8A?

Answer 31

No excessive bail
No excessive fines
No C&U punishment

Question 32

What are the standards for excessive bail and excessive fines under 8A jurisprudence?

Answer 32

No Excessive Bail: no “unusually high amount”
“need for bail in an unusually high amount is an arbitrary act” Stack v. Boyle 1951

No Excessive Fines: no “gross disproportion to gravity of crime”
(Bajakajian 1998)
Forfeiture of entire $357,144 of cash transported in violation of federal reporting law applicable to transporting cash amounts >$10,000 = EXCESSIVE FINES
Punitive forfeiture CANNOT be “grossly disproportional” to gravity of defendant’s crime (J. Thomas)

Question 33

How does the standard for C&U punishment play out?

Answer 33

No Cruel and Unusual Punishment <—often tested, esp. in context of
death penalty
method of death penalty
disproportionate sentences
○ “Death is different”
○ “The evolving standards of decency that mark the progress of a maturing society”
○ Death by firing squad is not cruel and unusual (Wilkerson)
○ Death penalty still const’l in 28 or 29 states
○ No death penalty for mentally retarded IQ less than 70 (Atkins v. VA)
○ No death penalty for murder defendants who committed the murder at age 17 or younger
○ No death penalty for insane defendant
Rape is not capital crime unless the rape victim dies

Question 34

What is 5A generally?

Answer 34

criminal defendant rights presented negatively i.e. LIMITS on government…NOR + passive voice

“NO person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury …; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation”

5A has lots of freedoms- more detail in other slides!
Don’t mix up test of govt failure to timely disclose exculpatory evidence under 5A and ineffective counsel under 6A
Don’t forget exclusionary rule for 4A, 5A, 6A, 8A

Question 35

What is 6A and why?

Answer 35

General: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtained witnesses in his favor, and to have the assistance of counsel for his defence.”

6A has more freedoms than any other Bill of Rights Amendment!

Don’t forget exclusionary rule for 4A, 5A, 6A, 8A

Question 36

What is 8A and why?

Answer 36

8th Amendment
General:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

Don’t forget exclusionary rule for 4A, 5A, 6A, 8A

Question 37

What are the elements of Common Law Criminal Homicide-Murder , and how can the STATE OF MIND element of CLCH- Murder be satisfied?

Answer 37

(There are 3 types of CLCH! CLCH: Common Law Murder, CLCH: Manslaughter, CLCH: Felony Murder)

Look at CLCH: Common Law Murder - 2 elements

1. Unlawful Killing of Another Human
AND
2. State of Mind of Malice Aforethought SOMOMA (express or implied)

[and but-for causation and proximate causation, right?]

SOMOMA is satisfied 4 ways….
Express or Implied Malice aka Intent to Kill ITK
ITK toward victim before killing
AND
ITK toward victim while killing

Deadly weapon intentionally used allows “Intent to Kill” permissive inference
e.g. Speedboat IS DEADLY WEAPON
e.g. Boxer’s fist IS DEADLY WEAPON in some jurisdictions

OR
Express or Implied Malice: Intent to inflict serious bodily injury
ITIBI toward victim while injuring
AND
Injuries result in victim death

e.g. defendant knowingly hits victim with pipe or baseball bat

OR
Express or Implied Malice: Reckless Indifference to unjustifiably high risk to human life aka abandoned and malignant heart <–good answer choice if lost

e.g. shooting gun in crowded room

OR
Express or Implied Malice: Intent to Commit a Felony aka Felony Murder
1. Killing of another
AND
2. During course of BARRK Felonies
Burglary
Arson
Robbery
Rape
Kidnapping

AND
3. including specific intent to commit the BARRK(s))
AND
4. Underlying felony is independent of killing - i.e. arson then death…not assault that results in death
AND
5. Death was foreseeable result of felony

Question 38

How is Common Law Criminal Homicide usually modified in statutes - 5 tiers?

Answer 38

CLCH - Typical Modifications via statute <–in MBE questions, fake statute will be provided

Think of 5 tiers. 1, 2, and 3 are like subtypes of Common Law Murder, breaking up SOMOMA?

1) First Degree Deliberate and Premeditated Murder
Think of it as stalking, planning, reflection (kind of encompassing SOMOMA 1 and 2)

2) Second Degree aka Depraved Heart Murder <–2DM is common correct answer on MBE!
Think of it as super reckless, incredibly i.e. Russian Roulette (kind of encompassing SOMOMA 3)

3) Felony Murder BARRK (kind of encompassing SOMOMA 4)
1DFM, 2DFM

4) Voluntary Manslaughter - heat of passion, provocation, spouse reaction – not just mad at firing 1 day later
[note that manslaughter has no “i” b/c no “intent”]

5) Involuntary Manslaughter aka Criminally negligent: throws football at neck, weird unusual impact angle
[note that manslaughter has no “i” b/c no “intent”]

Often question will ask “what is most severe form of homicide the defendant can be convicted of?”

Question 38

What does Manslaughter usually look like?

Answer 38

“unintentional killing of another”

CLCH: Voluntary Manslaughter
[note that manslaughter has no “i” b/c no “intent”]

1. Actual provocation
   e.g. bar fight
   e.g. being subject to serious battery or threat of deadly force
   e.g. discovering spouse in bed with another
2. No time to cool off
3. No actual cooling off occurred <——-KEY: if defendant factually cooled off, cannot claim manslaughter

CLCH: Involuntary Manslaughter i.e. Criminal Negligence i.e. Recklessness
[note that manslaughter has no “i” b/c no “intent”]

Other: Common Law Unlawful Act Manslaughter
[note that manslaughter has no “i” b/c no “intent”]

Misdemeanor Manslaughter

Non-BARRK Felony Murder

Often question will ask “what is most severe form of homicide the defendant can be convicted of?”

Question 38

How is causation satisfied in CLCH?

Answer 38

Causation in Homicide (remember Homicide includes Manslaughter) <–is there a causation element assumed in all homicides, or should we look only for where it is expressly an element?

Requires defendant action be but-for causation to VICTIM DEATH i.e. but-for defendant’s actions, VICTIM DEATH WOULD NOT HAVE OCCURRED
and
Requires defendant action be proximate causation to VICTIM DEATH of similar to Polsgraf, Cardozo Zone of Interests

But watch Chain of Causation!

General:
Look out for breaking chain of causation - causation requirement broken by goofy fact pattern – be SURE causation element is the fact pattern
Old common law year + day rule – largely abolished by SCOTUS in Rogers v. Tennessee (maybe that’s the name of the case)

Natural and probable? Proximate causation remains intact, assuming no intervening/shielding acts

Hastening inevitable result? Proximate causation remains intact, assuming no intervening/shielding acts

Simultaneous acts by two or more potential defendants? Proximate cause remains intact for each potential defendant, remains sufficient for each potential defendant assuming no intervening/shielding acts

Preexisting condition making victim more susceptible to death? Proximate causation remains intact assuming no intervening/shielding acts

Act of victim i.e. defendant harms victim intending to kill victim but victim for religious reasons refuses medical treatment? Proximate causation remains intact (most jurisdictions)

Act of third party: Doctor negligent on bullet wound? Proximate causation still intact for original shooter assuming no intervening/shielding acts

Act of third party: Doctor grossly negligent on bullet wound? Proximate causation is BROKEN b/c of intervening/shielding act by third party

Act of nature i.e. lightning hits victim as victim swerves off road to avoid defendant’s car? Proximate causation is BROKEN b/c of intervening/shielding act of nature

Question 38

What about when a pregnant victim dies? How to deal with baby’s death?

Answer 38

Say you have pregnant victim of homicide - does the death of baby/fetus count as a second victim of homicide?

“born alive”definition = baby/fetus was completely expelled from mother with independent signs of vitality,those independent signs of vitality occurring WITHOUT mother

Traditional Born Alive rule
If baby/fetus Born Alive, then dies –> yes baby/fetus is second victim of homicide

If baby/fetus is NOT Born Alive –> No, baby/fetus is NOT second victim of homicide - mom is only victim of homicide

Minority Rule: - harsher on defendant:

If baby/fetus Born Alive, then dies –> yes second victim of homicide

If baby/fetus is NOT Born Alive –> still yes second victim of homicide

Question 38

What if the defendant killed under duress?

Answer 38

Duress does not absolve but can reduce culpability for defendant

Question 39

What is the general definition of theft and what is some context?

(larceny, robbery, false pretense, embezzlement not on final)

Answer 39

General: Theft is a crime.
Common thread: “intentional taking of someone’s property”
Common question:
fact pattern plus “which of these 4 crimes are most appropriate”
remember conversion is a TORT not crime ∴ if you see “conversion” hereas an option for “crime”, don’t pick!

But note “converting” is an ELEMENT of embezzlement crime

fact pattern plus “which is the most serious offense”
Could be tort or crime!

Descending seriousness of theft crimes
Burglary most serious
Robbery
Larceny least serious

Trespassory = with physical intrusion [tres=across, pass=pass]

Non-trespassory = without physical intrusion [tres=across, pass=pass]

Question 40

What is standard Larceny?

(larceny, robbery, false pretense, embezzlement not on final)

Answer 40

Larceny Standard

1/4Trespassory taking
[even for only a few seconds]
2/4And carrying away

3/4Of another’s tangible personal property
TPP must have some value
TPP does NOT include realty unsevered
TPP does include realty severed

4/4 With the “intent to permanently deprive that person of property at time of taking”
[specific intent - does not include borrowing]
[specific intent - does not include accidental taking]
[often tested: the intent element e.g. picking something up thinking it really was yours - not larceny]

Continuing trespass exception - no intent at time of taking…but later develops intent.
Still larceny. Similar to continuing tort doctrine applied to Statute of Limitations

Larceny and return – yes intent at time of taking, but later loses intent quickly and returns?
Still larceny. (but of course in real world would be mitigating)

Question 41

What are Larceny by Trick and False Pretenses?

(larceny, robbery, false pretense, embezzlement not on final)

Answer 41

Larceny by Trick (similar to False Pretenses) - see page 85 barbri for difference
(FP is more of an action i.e. customer alters the price tag…LBT is more of an affirmative expression i.e. seller verbally lies about date of origin of product - Hudson 3/14/24)
Trespassory taking

by making material misrep to victim

…of custody of property

from victim

False Pretenses (similar to Larceny by Trick) - see page 85 barbri for difference
(FP is more of an action i.e. customer alters the price tag…LBT is more of an affirmative expression i.e. seller verbally lies about date of origin of product - Hudson 3/14/24)

Trespassory taking

by making material misrep to victim

…of title to property

from victim

Question 42

What is Embezzlement?

(larceny, robbery, false pretense, embezzlement not on final)

Answer 42

Embezzlement Is a CRIME.

Non-trespassory, lawful taking <–key: taking is lawful
[no trickery, no fraud, in taking]

of property

from victim

then converting it <–key: converting occurs

e.g. bank teller or bookkeeper receiving cash (the taking!) non-illegally from victim, then siphons it: act of siphoning (interfering) is conversion

e.g. creditor has debtor item as collateral for loan, but then sells collateral to 3P BEFORE loan defaults: act of selling (interfering) is conversion

fact pattern plus “which of these 4 crimes are most appropriate”

remember conversion is a TORT not crime ∴ if you see “conversion” under a “which crime” question, don’t pick!
…though “converting” is an element of embezzlement crime, as you see here

Question 43

What is Robbery and how is it different from Larceny?

(larceny, robbery, false pretense, embezzlement not on final)

Answer 43

Robbery

General:
like an “aggravated larceny”

Like larceny plus FACE TO FACE plus INTIMIDATION
Larceny and Robbery are mutually exclusive
Larceny + Assault –> merges into Robbery and Attepmted Robbery

Robbery Elements (x6)
4 larceny elements plus 2 more

1/6 Trespassory taking
[even for only a few seconds]

2/6 And carrying away

3/6 Of another’s tangible personal property
[TPP must have some value]
[TPP does NOT include realty unsevered]
[TPP does include realty severed]

4/6 With the “intent to permanently deprive that person of property at time of taking”
[specific intent - does not include borrowing]
[specific intent - does not include accidental taking]
[often tested: the intent element e.g. picking something up thinking it really was yours - not larceny]

5/6 from the victim or in presence of victim
AND
6/6 by force, intimidation, threat or violence <–sorta like difference between battery and assault

e.g. using gun, even if fake gun, to steal someone else’s stuff = rank intimidation
e.g. any type of struggle between victim and defendant = = rank intimidation
e.g. rank intimidation has to be SUBJECTIVELY, ACTUALLY satisfied i.e. 6’-8” clerk laughs at 5’-2” person with gun…that would NOT satisfy rank intimidation

e.g. Person walks into store, cashier is walking back to back room, person grabs cash from register while cashier is in back room?
LARCENY not robbery

Question 44

What are Common Law Burglary and Modern Burglary?

Answer 44

General:
Key to knowing burglary == are you in CL burglary jurisdiction, or modern burglary jurisdiction? Fact pattern will just tell you expressly

Does not require loud/destructive entry…e.g. sliding open unlocked window is sufficient, moving ANYTHING is sufficient

Common Law Burglary
Breaking and entering of someone else’s residence
i.e. 2pm breakin into home is NOT burglary
Walking in without pushing/touching anything? NOT B&E
Walking in with slightly pushing/touching anything? YES B&E
® no literal “breaking” needed
® “open for business” is not relevant

At night

i.e. nighttime breakin into business is NOT burglary

With the intent to commit a felony in the dwelling AT THE TIME of breaking in
[note it is not intent of taking…but broader…it is intent of felony…burglary is NOT necessarily robber-ish like it is on TV e.g. Hamburglar stealing burgers]

Modern Burglary
Breaking and entering of someone else’s residential or commercial
Walking in without pushing/touching anything? NOT B&E <–BUT SOME JURISDICIONS SAY MERE ENTRY IS SUFFICIENT
Walking in with slightly pushing/touching anything? YES B&E
® no literal “breaking” needed
® “open for business” is not relevant

At anytime

With the intent to commit a felony in the residential or commercial AT THE TIME of breaking in
[note it is not intent of taking…but broader…it is intent of felony…burglary is NOT necessarily robber-ish like it is on TV e.g. Hamburglar stealing burgers]

Question 45

What is required for a valid individual vehicle stop AND what is required for a valid mass vehicle checkpoint?

Answer 45

Vehicle Stop Validity
General Rule: Individual Vehicle Stop
Requires that police…
have Reasonable Suspicion that individual vehicle violated a law

Exception for Checkpoints: Mass Vehicle Stops as Checkpoint
Requires that Police…
designed checkpoint to use Neutral, Articulable Standard
E.g. every 1st car, every 3rd car: valid standard
AND
designed checkpoint to serve Purposes Closely Related to Vehicle Mobility

E.g. checking to see if drunk driving checkpoint: Valid Checkpoint b/c of gravity of drunk driving

E.g. checking to see if transporting undocumented immigrants checkpoint near borders: Valid Checkpoint

E.g. checking to see if drivers have hit & run info at checkpoint near hit & run: Valid Checkpoint

E.g. checking to see if drivers have any incriminating information about themselves: Invalid Checkpoint