Ch 7 law

What is the "same" offense

- 2 test -1. Same element test (Blockburger) - treats successive criminal prosecutions under 2 different sections of the penal code as brought for the same offense unless each statue violated requires proof of at least one distinct element -2. Same Transaction Test - measures the number of offenses by the underlying conduct; all statutory violations occasioned by the same underlying conduct must be joined for prosecution in a single trial or the power to prosecute will be lost

speedy trial

- 6th amendment guarantee - applies to both federal and state trials - US vs Marion: rights attaches only after the prosecution phase commences - Considerations: -1. length of the delay -2. reasons of the delay -3. whether the defendant made a timely assertion of his right (or sat ildy by) -4. whether the defendant was prejudiced by the delay

Necessity (Choice of Evils)

- Necessity: a defense to criminal prosecution on the grounds that the harm to be avoided outweigh the harm caused by the crime committed - the defense is available for only as long as the threat of danger exists: - ex) a driver wrecks car and walks in snow to find help for family. seeing no one he breaks into homes and calls 911. Necessity defense might be accepted (but civil)

duress or coercion

- a person can be forced to be involved in a crime - threats must put defendant in fear or imminent death or serious bodily harm, which can only be avoided by engaging in the coerced criminal conduct - ex) mother forced to traffic drugs for childs life - threats must be such that a reasonable person is the defendant's circumstances would be unable to resist the threats

alibi

- alibi as criminal defense: defendant is asserting that he/she physically could not have committed crime, they were at another place - because jury cannot convict if reasonable doubt exist, alibis are effective defense. If 2 or 3 jury believe jury is hung - burden is not on the defendant to show that he/she was not at the scene of crime; it is on the state to show beyond reasonable doubt that the defendant was at the scene and committed the crime - because alibi can be easily fabricated it must be carefully investigated. many states have statutes requiring defendants who plan to use an alibi defense to serve notice before trial thus giving prosecution necessary time to investigate credibility

when double jeopardy applies

- an earlier prosecution must progress to the point of jeopardy attachment - in jury trial jeopardy attaches as soon as a jury has been empaneled and sworn - if non-jury trial, jeopardy attaches when the 1st witness is sworn and the judge has been hearing testimony - the subsequent prosecution must involve the same offense - both prosecution must be brought by the same government entity ("same sovereign")

entrapment

- based on official action that induces a person not already predisposed to criminal behavior - predisposed means "ready and willing" to commit the crime when an opportunity arises - the reason the entrapment defense exists is to deter objectionable gov conduct. it does not apply to actions by private persons who persuade another to commit a crime - entrapment not accepted in homicide cases - defense requirement "inducements" by officials that go beyond usual investigation techniques. simple solicitation by officials to commit crimes is not enough must be -1. "repeated or persistent solicitation" -2. "coercive encouragement" -3. "aggressive persuasion"

dual sovereignty

- because multiple jurisdiction (2 or more states or state and federal) may have power to bring criminal charges based on the same transaction double jeopardy does not bar multiple prosecution by "dual sovereigns" - some states by statue agreed to bar prosecution if a defendant was convicted in another state. the federal gov has similar policy

duress or coercion in murder

- common law made no provision for the duress defense for taking the life of an innocent person (murder excluded defense of duress/ coercion) - today state statues generally exempt the duress defense in murder cases - distinction often drawn between duress forcing involvement in felony in which 3rd person is killed -exception example: jim forced by threat of death to drive car in bank robbery. robbers kill teller jim has defense to a felony murder charge

kinds of affirmative defense

- defenses barring prosecution for offense (immunity, double jeopardy, statue of limitation) - defenses that, if proved, cancel or negate an element of the offense (property not stolen "knowing" element of crime) - defense that serves as justification for the acts that make up the offense (reasonable self defense is justified) - defense that excuse the criminal act (insanity, duress or coercion)

criminal defense

- in proving guilt the state must present evidence that a crime was committed (corpus delicti) and that the defendant was involved - prosecution bears the burden of proving every element of crime - most instances the defendant has the burden of proving an acceptable (affirmative) defense by (preponderance of evidence)

Involuntary Intoxication

- involuntary intoxication or drugged condition can be a defense to a criminal charge if: -1. the jury or judge believes the defendants story about intoxication being involuntary -2. defense is supported by credible evidence that the defendant did not voluntarily take the drug or intoxication and instead was tricked or forced into taking the substance -3. defendant became so intoxicated or drugged that he/she was not able to mentally form the specific intent necessary for the charged but was physically able to commit the crime

double jeopardy

- means that a person who has been acquitted or convicted by a judge/jury cannot be tried again for same crime - in case of mistrial double jeopardy clause does not bar another prosecution because there has been no final decision - retrial after "hung" jury is not double jeopardy in a single- count prosecution - double jeopardy does not bar successive prosecution of a defendant convicted of one offensive if the subsequent prosecution involves a different or separate offense - double jeopardy clause of the 5th amendment: - prohibits government from trying the same person twice for the same offense - prevents gov from imposing multiple punishment for same offense - is not violated is 2 separate sovereign gov brings charges

Necessity and Homicide

- necessity is typically not a defense in homicide cases, although exceptions may exist - most state statutues that define exclude murder from the crimes for which the defense is available - generally speaking the threat of death to A does not justify A killing of B - A is not justified by necessity to push B out of lifeboat that holds 1 person - But if A already established a place on boat necessity may justify blocking B from getting on boat - defense may be available when taking one life saves many - model penal code ex commonly used: breaking down a dyke to flood a farm to avoid the dam bursting and flooding an entire town

statues of limitations

- place a limit on how long after a crime has been committed a prosecution may be commenced - purpose is both to eliminate anxiety about possibility of prosecution and help ensure that evidence is fresh and not obstructed by the passage of time - not of constitutional dimensions so state and federal gov are free to set limitations periods as deemed appropriate - many crimes such as murder or rape do not have a limitation period

witness immunity

- prosecutors have the power to subpoena witnesses to give testimony however under the 5th amendment a witness cannot be compelled to testify against himself - to resolve federal and state passed various statues - Transactional Immunity: if granted, witness cannot be prosecuted for any offense related to subject matter of his testimony - congress concerned that total immunity hampered efforts to combat crime amended protection, implemented Use immunity - Use Immunity: allows that statements by the witness may not be used in subsequent prosecution, but the witness can be prosecuted for the crimes about which they testified if other evidence is used to convict them

legislative immunity

- sometimes granted to representatives, senators, and state legislators to a limited degree of temporary immunity while their legislative body are in session - speech and debate clause - charges, however, could be held until the legislative body adjourns. also state legislative enjoy no immunity from prosecution for federal crime

Intoxication and mens rea

- voluntary intoxication or drugged condition as a defense to the commission of criminal acts is frequently raised, but typically unsuccessfully - crimes that require only a general intent (should have known better) do not permit an intoxication defense - while some states have abolished intoxication as a defense in any case (Montana) some state statues allow charges to be reduced if defendant can prove intoxication level eliminated ability to have specific intent -ex) intoxication can negate the required specific intent to kill for a 1st degree murder correction but not a conviction for manslaughter or in some states, 2nd degree murder

ignorance or mistake of laws

- while exceptions exist typically not knowing the law (ignorance) is not an excuse for breaking the law: however mistake of fact might be - ex) ignorance of statue making failure to place infants or children in car seat - Mistake of fact would be if a man mistakes his coat for somebody else's and takes it - Mistake of fact is not a defense for strict liability -ex) having sex with underage child requires no knowledge so no defense

Affirmative Defense

-commonly used to refer to either kind of defense or (excuse of justification) - it exists when defendant generally admits to the crime but demonstrates an acceptable defense such as: -1. Immunity -2. Duress and consent (he/she was forced) -3. Alibi -4. violation of double jeopardy protection -5. entrapment -6. violation of speedy trial protection

Immunity defense

3 main types: - diplomatic - legislative witness - witness immunity

diplomatic immunuty

internal agreement regarding government officials stationed in a foreign country, however, diplomatic immunity may be waved by the diplomats home country and in the case of serious crime, US gov frequently request waivers