BR Criminal Law

Places where a D will have a reasonable expectation of privacy:

1) Places owed by the person 2) Person's home - whether or not person owns or has a right to possess 3) Place in which person is at least an overnight guest 4) The reasonable expectation of privacy in the D's home extends to the home's curtilage. NO reasonable expectation of privacy in things held out to the public (sound of one's voice, smell of one's luggage, etc.)

In a grand jury proceedings, a D has no right to:

1. Counsel 2. Miranda warnings 3. Warnings that witness may be a "potential defendant" 4. Exclude evidence that would be inadmissible at trial 5. Challenge a subpoena for lack of probable cause

Forgery:

Making or altering a writing with apparent legal significance so that it's false with intent to defraud

Exceptions to fruit of the poisonous tree doctrine:

1. The fruits derived from statements obtained in violation of Miranda 2. Evidence obtained from a source independent of the original illegality 3. Evidence for which the connection between unconstitutional police conduct and the evidence is remote (considering whether the misconduct was purposeful or flagrant) or has been interrupted by some intervening circumstance, so that the causal link between the misconduct and the evidence is broken ("attenuation"—ex, D's illegally arrested but is released and later returns to the station to confess; officers technically make an unlawful stop, but there is an arrest warrant out for the detainee) This includes intervening acts of free will by the D. 4. Inevitable discovery— prosecution can show the police would've discovered the evidence whether or not they acted unconstitutionally 5. Violations of the knock and announce rule

The Sixth and Fourteenth Amendments provide the right to public trial. Hearings to determine probable cause are presumably open to public. However, a party may move to have the hearings be suppressed. The suppression hearing itself will be open. There will be suppression if:

1. The party seeking closure has an overriding interest 2. The closure is no broader than necessary 3. Other reasonable alternatives were considered 4. Court makes findings to support closure.

The Fourth Amendment provides us all with a right to be free from unreasonable searches and seizures of our person and property by the government. What constitutes a seizure of the person:

1. Under the totality of circumstances 2. A reasonable person would not feel free to decline officer's requests and terminate the encounter 3. Must be a physical application of force or submission to a show of force

Elements of common law murder:

1. Unlawful 2. Killing of another human; and 3. With malice aforethought. "Malice" means: 1) Intent to kill; 2) Intent to do serious bodily harm; 3) Reckless indifference to unjustifiably high risk to human life (depraved heart murder); or 4) Felony murder One of these four intents plus a lack of justification and no provocation = Common law murder

When determining whether there was an improper search or seizure of property, you must ask these three things:

1. Was there gov conduct - the 4th amendment proscribes only governmental conduct (eg, the police and their agents) 2. Does the D have standing - he can only complain about interferences with their own reasonable expectation of privacy or physical intrusions into own constitutionally protected area. This is determined by looking at a totality of the circumstances. 3. Was the search done pursuant to a warrant

A killing is involuntary manslaughter if it was committed:

1. With criminal negligence (or by recklessness, under the MPC), or 2. In some states, during the commission of an unlawful act (misdemeanor or felony not included in felony murder rule). Foreseeability of death may also be a req. Distinguish involuntary manslaughter from "abandoned and malignant heart" murder: Abandoned and malignant heart murder at common law involves a high risk of death, while involuntary manslaughter based on recklessness requires only a substantial risk.

SCOTUS has held there's no right to trial by jury in delinquency proceedings. Pretrial detention of a juvenile is allowed where it's found the juvenile is a "serious risk" to society, as long as the detention is for a strictly limited time before trial may be held. If the juvenile ct adjudicates a child a delinquent, jeopardy has attached. Double jeopardy prevents the kid from being tried as an adult for the same behavior. The following rights must be given to a child during trial of a delinquency proceeding:

1. Written notice of charges, 2. Assistance of counsel, 3. Opportunity to confront and cross-examine witnesses, 4. The right not to testify, and 5. The right to have "guilt" established by proof beyond reasonable doubt.

Two-step process for determining custody for Miranda purposes:

1.Whether a reasonable person would feel free to terminate the interrogation and leave. 2. Whether environment presents same inherently coercive pressures as station house questioning.

An attempt requires the intent to commit the completed offense and an act beyond mere preparation for the offense. Traditionally, courts used the proximity test, requiring an act that is dangerously close to success. Where charges can be tried in a single trial, but the D consents to having two separate trials, there's no double jeopardy violation.

Regardless of the intent required for the completed offense, a charge for attempting that offense ALWAYS requires specific intent. Thus, attempted murder requires the specific intent to kill another person, even though the mens rea for murder itself doesn't require a specific intent. Felony murder rule can only be applied when the underlying felony is independent of the killing. A felony such as assault or battery that directly causes death wouldn't be considered an independent felony.

C. Right to counsel 1. A D has a right to counsel. Violation of this right at trial, including erroneous disqualification of D's privately retained counsel, requires reversal. a. For nontrial denials, the harmless error test is applied. 2. Remember that the right to counsel is available in misdemeanor cases only if imprisonment is actually imposed. So if an exam question involves a nonfelony and the D asks for counsel, is denied, and is convicted, whether the right to counsel has been violated depends on the sentence: if D receives no imprisonment, their right has not been violated; if they receive prison time, their right has been violated. 3. D has a right to defend themself at trial if, in the judgment of the judge, their waiver is knowing, intelligent and, based on the trial judge's consideration of their emotional and psychological state, D's competent to proceed pro se. a. Note that a D doesn't have a right

5. 6th Amendment right to counsel includes the right to effective counsel. This right extends to the first appeal. Effective assistance of counsel is generally presumed. a. Circumstances Constituting Ineffective Assistance - An ineffective assistance claimant must show: 1) Deficient performance by counsel; and 2) But for the deficiency, the result of the proceeding would have been different (ex, D would not have been convicted or the sentence would have been shorter) b. D must point out specific deficiencies; can't base the claim on inexperience, lack of time to prepare, the gravity of the charges, complexity of defenses, or accessibility of witnesses to counsel. 1) Note: If counsel admits their client's guilt when D's clearly articulated a desire to maintain their innocence during the sentencing phase of trial, this structural error mandates a new trial without any need to first show prejudice. c. An attorney's failure to notify D of a plea offer can constitute deficient performance if the D can show that: (1) had the plea agreement been communicated, D likely would've accepted; and (2) the plea likely would've been entered without the prosecutor canceling it. 1) The fact that D subsequently has a fair trial (after turning down a plea offer) doesn' prevent the ineffective assistance claim. d. It is constitutionally deficient for counsel not to inform a client whether their plea carries a risk of deportation. e. Circumstances not constituting ineffective assistance include trial tactics and the failure to raise a constitutional defense that is later invalidated.

23. Involuntary manslaughter: can be caused by criminal negligence. 24. Misdemeanor manslaughter: if you have a death that was caused in conjunction with an assault or battery, could be misdemeanor manslaughter. 25. Trespass req for larceny: basically means you just took something without consent. 26. Larceny by trick: P consents to D taking their property (no trespass), but the consent is induced by misrepresentation or deceit. 27. Conveyance of cash bc of a lie = false pretenses. Bad check = false pretenses. 28. Overt act req for attempt = maj rule is that it just has to be a substantial step 29. Doctrine of transferred intent does NOT apply to "attempt" crimes. 30. A passenger in a car who is JUST a passenger has no standing to object to a search of the car, but CAN have standing to object to the seizure. 31. Presence of a drug sniffing dog on someone's doorstep will constitute a physical intrusion into a constitu

5. Terry stop: an investigatory detention. Require reasonable suspicion of illegal activity if it's supported by articulable facts. A frisk for weapons is permitted only if the officer has a reason to believe the detainee is armed and dangerous. 6. An automobile stop: permitted with reasonable suspicion. Roadblocks don't require reasonable suspicion, but require neutrality and a basis that is closely related to cars. can't be related to regular law enforcement purposes. 7. First, look to see if there was a seizure. If there was a seizure, determine the type of seizure 8. Evidentiary search and seizure. Ask if there was a physical intrusion into a place where a person has a const protected right of privacy (ex, putting a tracker on your car), or if D just had a reasonable expectation of privacy. 9. Was there a valid warrant? PC, issued by a neutral magistrate. Good faith exception when the warrant isn't valid. 15. Criminal negligence, a form of involuntary manslaughter, is an unintended killing caused by the negligence of another. Criminal negligence requires a greater deviation from the reasonable person standard than is required for civil liability, but less negligence than the reckless disregard for human life required for malice. Certainly a parent's failure to provide medical treatment for a critically ill child is criminal negligence.

Self-defense and deadly/NDF:

A person may use NDF in self-defense if she reasonably believes force is about to be used on her; there's no duty to retreat. A person may use DF if she is: 1) Without fault; 2) Confronted by unlawful force; and 3) Reasonably believes that she is threatened with imminent death or great bodily harm.

Affirmative defense:

A response to a plaintiff's claim that does not deny the plaintiff's facts but attacks the plaintiff's legal right to bring an action. An example is the running of the statute of limitations. Affirmative defense = does not go to an elements of the crime. Includes things like reasonable belief, if intent is required.

Larceny consists of: (i) a taking (ii) and carrying away (iii) of tangible personal property (iv) of another (v) by trespass (vi) with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. The intent to deprive must exist at the time the property is taken.

A school search will be held reasonable if: (i) it offers a moderate chance of finding evidence of wrongdoing; (ii) the measures adopted to carry out the search are reasonably related to the objectives of the search; and (iii) the search is not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

22. A post-charge lineup is a critical stage of the prosecution at which a defendant has the right to counsel. Once the government has initiated adversary judicial criminal proceedings, the presence of counsel is a prerequisite to the conduct of a lineup. This right attaches as soon as the accused is within sight of a potential identification witness. The accused is entitled to have counsel present at all times during the lineup procedure when the accused is visible to the witnesses.

A search without a warrant is unconstitutional unless it falls under one of the warrant exceptions. One exception is search incident to a lawful arrest: if const arrest, police may conduct a contemporaneous search of arrestee's wingspan. If const arrest of someone in a car, can search passenger compartment to car IF 1) arrestee is unsecured and can still get access to the vehicle; 2) police reasonable believe evidence of the arresting offense may be found in the car

Larceny is the taking and carrying away of the personal property of another, by trespass, with the intent to permanently deprive the owner of his interest in the property. The element of carrying away, or asportation, is satisfied as long as there is some movement of the property as a step in carrying it away.

A statement obtained in violation of a D's sixth amendment right to counsel may be used to impeach the D's contrary trial testimony. When one is represented by counsel, a valid waiver of the right to counsel requires the presence of counsel unless the D initiates the contact.

Using a non-testifying co-D's inculpatory statement against the accused at trial presumably violated the accused's Sixth Amendment right to confrontation. In Co-D confession cases, the confrontation clause requires that an og D be given the opportunity to cross-examine a co-D whose confession is being used against the og D.

As a general rule, the police must have an arrest warrant to effect an arrest of an individual in his own home. There is no general "emergency" exception to the warrant requirement. While police officers in hot pursuit of a fleeing felon or trying to prevent the destruction of evidence may sometimes make a warrantless search and seizure, the burden is on the government to show that one of those exceptions applies.

The "malice" requirement for mens rea:

Common law murder and arson are our malice crimes. Malice is the intent that's necessary for these crimes. Malice crimes require a reckless disregard of an obvious or high risk that the particular harmful result will occur. Defenses to specific intent crimes (such as voluntary intoxication) do NOT apply to the two malice crimes.

If a D enters a guilty plea, that guilty plea waives their right to a jury. The D isn't permitted to withdraw this plea if it was an intelligent choice. To take the plea, the judge must determine that the plea was voluntary and intelligent. Judge must address defendant personally on record to ensure defendant knows: 1. Nature of charge and crucial elements 2. Maximum possible charge and mandatory minimum 3. The right not to plead guilty 4. By pleading guilty defendant waives right to trial

Right to Counsel is Available at Sentencing. However, there is no right to confrontation at sentencing. Exceptions to this: 1. Magnified sentence based on new findings of fact 2. Capital sentencing requires more confrontation right If judge imposes greater punishment at trial (after defendant's successful appeal), record must show reasons for harsher sentence. Exceptions: 1) reconviction upon trial de novo; 2) jury trial.

Robbery

Robbery = larceny + force of immediate threat of force. Simulating a deadly weapon elevates robbery to armed robbery. Threats for future harm = not robbery

Once a person has gone beyond preparation, abandonment is not a defense to attempt. A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. The defendant must have the intent to perform an act and obtain a result that, if achieved, would constitute a crime. Also, the defendant must have committed an act beyond mere preparation for the offense. If a defendant has, with the required intent, gone beyond preparation, the general rule is that abandonment is not a defense. Some js do recognize abandonment as a defense, but if so, has to be totally voluntary and complete.

Consent exception to a warrant: To fall within this exception to the warrant requirement, consent must be given by one who appears to have an apparent right to use or occupy the premises and the search cannot go beyond the scope of the consent given. The consent is valid as long as the police reasonably believed that the person who gave the consent had the authority to do so, and the scope of the consent is limited only to areas to which a reasonable person under the circumstances would believe it extends.

Types of involuntary manslaughter: 1) death resulting from criminally negligent behavior. 2) death resulting from a misdemeanor or the commission of an unenumerated felony (ie, not a BARRK felony)

Conspiracy does not EVER merge - can be convicted of it and the substantive crime. ALSO: Withdrawal is usually no defense to conspiracy.

4th amendment only prohibits UNREASONABLE search and seizures The exclusionary rule applies if police have violated a person's 4th, 5th, or 6th amendment rights. START with this rule. Seizure of a person occurs anytime a person would feel that he's not free to leave or terminate the encounter. Arrest: may occur without a warrant unless the arrest is at the D's home. Police need PC for warrantless arrest.

Curtilage: the areas around your home. Includes garage, outhouse, back yard.

The Miranda warnings must be given prior to custodial interrogation by police. The trick is that the D must know that the police are doing the interrogation; Miranda doesn't apply to an informant or probation officer.

Custody—would reasonable person under the circumstances feel free to terminate interrogation and leave; if not, is environment coercive? 1) Test is objective 2) Traffic stop is noncustodial (temporary and brief) Interrogation—any police words or conduct designed to elicit an incriminating response

Defense of a dwelling:

D can use nondeadly force in defense of their dwelling when they reasonably believe it's necessary to prevent another's unlawful entry into or attack upon their dwelling. Deadly force may be used only: 1) To prevent a violent entry when D reasonably believes the use of force is necessary to prevent a personal attack on himself or another in the dwelling, or 2) To prevent an entry to commit a felony in the dwelling.

Defense of others:

D has the right to defend others if they reasonably believe the person has the legal right to use force in their own defense. All that is necessary is the reasonable appearance of the right to use force. There need be no special relationship between D and the person in whose defense they acted.

The privilege against self-incrimination only extends to compelled "testimonial communications;" this means a suspect can be compelled to make a recording of his voice without violating Miranda. While a suspect has no right to counsel at a pre-charge lineup, there is such a right at any post-charge lineup or showup under Sixth Amendment principles. However, at nontrial proceedings (such as a post-indictment lineup), the harmless error rule applies to deprivations of counsel. Proximate cause:

D is a proximate cause if the result is a natural and probable consequence of the D's conduct, even if he doesn't anticipate the precise manner in which the result occurs.

It is not true that the Sixth Amendment applies whenever an informant is placed in the defendant's cell. It applies when an informant is placed in a defendant's cell after adversary judicial proceedings have been initiated. But there is no Sixth Amendment violation just because an informant is placed in the defendant's cell after charges are filed. There is a violation only if the informant does something designed to elicit incriminating remarks.

SCOTUS held, in Roberts v. United States (1980), that a defendant's refusal to cooperate with an investigation of the criminal conspiracy of which he was a member may properly be considered in imposing sentence. This is because the Fifth Amendment right to remain silent does not afford a privilege to refuse to incriminate others.

Solicitation and attempt merge into completed crime. Conspiracy does NOT merge into the completed time. D can be convicted of both conspiracy and the underlying crime. A D can't be convicted of two different inchoate crimes. Felonies = those crimes that are punishable by death or imprisonment for more than one year. Legal duty to act imposed by k: nurse or doc has a legal duty to act only while they're on duty. NO duty to act while they're off duty. If D's action caused the peril, they had a DUTY to act. If they don't act, they're criminally liable. Voluntary intoxication and unreasonable mistake of fact are defenses to specific intent crimes ONLY.

Malice crimes: require a reckless disregard of an obvious or high risk that particular harmful result will occur. These crimes are second degree murder and arson. General intent crimes do NOT have intoxication and unreasonable mistake of facts available as defenses. If statute is in a regulatory, administrative, or morality area, and there are no adjectives telling you about required mental state, it's strict liability.

The inchoate crime of conspiracy:

Modern/unilateral approach to conspiracy: only one party must have a genuine criminal intent. A D can be convicted of conspiracy even if the other person is a police officer. Common law/Traditional/bilateral approach to conspiracy: at least two parties must have criminal intent. Common law didn't require an overt act for conspiracy. But now, it is required by most states. Elements: 1. An agreement between two or more persons 2. An intent to enter into the agreement 3. An intent by at least two persons to achieve the objective of the agreement 4. An overt act - this isn't a high burden, as acts of "mere preparation" suffice.

Defenses to accomplice liability: Withdrawal is an affirmative defense if prior to the crime's commission. This means that if the D encouraged crime, must repudiate encouragement. If he provided material, must neutralize the assistance. OR, he may may notify police or otherwise act to prevent crime. Elements of accomplice liability:

Must be intentionally aiding, counseling, or encouraging the crime—active aiding, etc., required. Mere presence not enough even if by presence defendant seems to be consenting to the crime or even if defendant fails to notify the police If crime is one of recklessness or negligence, accomplice must intend to facilitate commission and act with recklessness or negligence. Liability is for the crime itself and all other foreseeable crimes

When can a person use DF or NDF in defense of others or a dwelling:

NDF—person reasonably believes that NDF is necessary to protect other or dwelling (or to end unlawful entry) DF—only if a person reasonably believes that she is threatened with death or great bodily harm. Deadly force can never be used just in defense of property.

To be convicted as an accomplice under the prevailing rule, a person must have given aid, counsel, or encouragement with the intent to aid or encourage the principal and the intent that the principal commit the substantive offense. Mere knowledge that a crime would result from the aid provided is generally insufficient for accomplice liability.

NOTE: in the case of felony murder and double jeopardy, the underlying felon is a lesser included offense of the felony murder charge. Sixth amendment right to counsel applies regardless of whether the D knows the interrogator is the police. Fifth amendment rights only apply when the D KNOWS it's the police.

Warrant requirements:

1) Issued by neutral and detached magistrate 2) Based on probable cause to believe that seizable evidence will be found in place to be searched 3) Describes with particularity the place to be searched or items to be seized 4) Invalid if based on a material false statement that was intentionally or recklessly included 5) Must generally knock and announce authority - but no knock entry permissible if officer has reasonable suspicion that knocking and announcing would be dangerous or would inhibit investigation (Evidence not excluded based on violation of this rule)

Js differ on whether someone using DF in self-defense is required to retreat:

1) Majority rule—no duty to retreat 2) Minority rule—duty to retreat, except: a) When it cannot be done safely, and b) In one's home

Terry stops:

1) May be made on reasonable suspicion supported by articulable facts 2) Reasonable suspicion determined by totality of circumstances 3) Informer's tips must be accompanied by indicia of reliability 4) Police must act in a diligent and reasonable manner in confirming or dispelling their suspicion (cannot take too long)

False pretenses:

1) Obtaining title (If title isn't obtained, the crime is larceny by trick) 2) To personal property of another 3) By an intentional false statement of a past or existing fact 4) With intent to defraud the other

The "stop and frisk" exception to the warrant requirement for a search:

1) Occurs during valid Terry stop (see above) 2) When police have reasonable belief that detainee is armed and dangerous 3) May pat down outer clothing for weapons 4) May seize anything that by plain feel is weapon or contraband

Core reqs for valid search warrant:

1) Probable cause 2) Particularity - warranty must describe with particularity the place to be searched and the items to be seized.

Receipt of stole property:

1) Receiving possession and control; 2) Of "stolen" personal property; 3) Known to have been obtained in a manner constituting a criminal offense; 4) By another person; 5) With the intent to permanently deprive the owner of his interest in it

What will be insufficient intent for larceny:

1. Belief property is D's OR that they have some right to it 2. Intent to borrow property 3. Intent to keep property as repayment of debt Note - Continuing trespass: D wrongly takes property without intent to permanently deprive and later decides to keep it = larceny.

In Payton v. New York (1980), the United States Supreme Court held that, absent an emergency, a forcible, warrantless entry into a residence for the purpose of making a felony arrest is an unconstitutional violation of the Fourth Amendment as made applicable to the states by the Fourteenth Amendment.

via the 8th amendment, death penalty can't be imposed as a punishment for felony murder on an accomplice who "did not take or attempt or intend to take life, or intend that lethal force be employed."

6th amendment right to counsel is offense specific. Can be questioned about unrelated offenses without violating 6th amendment, even if you've invoked right to counsel for the crime you're being charged with. Waiver of right to counsel must be knowing and voluntary. Waiver doesn't require the present of counsel. Stages when 6th amendment right to counsel doesn't apply:

1. Blood sampling 2. Taking of handwriting or voice exemplars 3. Precharge or investigative lineups 4. Photo ids 5. Preliminary hearings to determine probably cause to detain 6. Brief recesses during D's testimony 7. Discretionary appeals 8. Parole and probate revocation proceedings 9. Post-conviction proceedings (like parole hearings)

Failure to act gives rise to crim liability (aka, satisfies the actus reus requirement of a crime) only if: 1. There's a legal duty to act 2. D has knowledge of the facts giving rise to the duty to act 3. It's reasonably possible to perform the duty A legal duty to act can arise from one of five circumstances:

1. By statute (ex, requirement to file tax return) 2. By k (ex, a lifeguard or nurse has a legal duty to act) 3. The relationship between the parties (ex, a parent/spouse has duty to protect child/spouse) 4. Voluntary assumption of care by the D for the victim 5. The D created the peril for the victim

Second degree murder: act that would've been first degree murder, except there was adequate provocation Adequate provocation means:

1. Defendant was in fact provoked 2. Provocation would arouse sudden and intense passion in mind of ordinary person 3. No sufficient time between provocation and killing for passions of a reasonable person to cool 4. D in fact didn't cool off

Factual impossibility is no defense to an Attempt charge. Factual impossibility occurs when D sets out to do an illegal act, but he can't complete it due to some unknown reason. However, true legal impossibility is always a defense to Attempt. Legal impossibility arises when the D sets out to do a legal act he believes is illegal. Abandonment is generally no defense of Attempt after the substantial steps have begun. HOWEVER, the MPC recognizes abandonment as a defense if it is fully voluntary and complete. Elements of attempt:

1. Specific intent; and 2. Overt act—a substantial step in the direction of the commission of the crime (mere preparation not enough)

Elements of burglary:

1) A breaking; 2) And entry; 3) Of a dwelling; 4) Of another; 5) At nighttime; 6) With the intent to commit a felony in the structure

Robbery:

1) A taking 2) Of personal property of another 3) From the other's person or presence 4) By force or threats of immediate death or physical injury to the victim, a member of his family, or some person in the victim's presence 5) With the intent to permanently deprive him of it

Elements of Rape:

1) Any penetration of the female sex organ by the male sex organ (many states have made gender neutral); 2) Without the victim's effective consent; a) Intercourse accomplished by actual force; b) Intercourse accomplished by threats of great and immediate bodily harm; c) Intercourse where the victim is incapable of consenting due to unconsciousness, intoxication, or mental condition; or d) Intercourse where the victim is fraudulently caused to believe that the act is not intercourse 3) In the absence of a marital relationship between the woman and the man (most states have abolished or modified this element)

Most js treat the following as aggravated batteries and punish them as felonies:

1) Battery with a deadly weapon; 2) battery resulting in serious bodily harm; and 3) battery of a child, woman, or police officer.

In some js, murder is divided into degrees by statute. A murder will be second degree murder (similar to common law murder) unless it comes under the following circumstances, which would make it first degree murder:

1) Deliberate and Premeditated First Degree Murder - If D made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even if only for a very brief period, it is first degree murder. D must've acted with intent or knowledge that their conduct would cause death. 2) First Degree Felony Murder - a killing committed during the commission of an enumerated felony. The felonies most commonly listed are burglary, arson, rape, robbery, and kidnapping, but other felonies are often specifically added. Alternatively, the statute may provide that a killing during any felony is felony murder (but in this instance, the killing will typically be classified as second degree felony murder). 3) Some statutes make killings performed in certain ways (for example, by torture) or with certain victims first degree murder. Many states make the homicide of a police officer first degree murder. The D must know the victim is a law enforcement officer, and the victim must be acting in the line of duty.

The 8th Amendment prohibits punishment that is both cruel and unusual; that is, punishment is grossly disproportionate to offense. It is unconstitutional to make a "status" a crime. It is unconstitutional to sentence a minor to life without possibility of parole for a non-homicide crime. It is unconstitutional to provide for harsher penalties for those demanding a jury trial. It is unconstitutional (violation of equal protection) to imprison an indigent for failure to pay a fine. For there to be a death penalty, there must be a statutory scheme that gives the fact finder reasonable discretion, full information, and guidance in making their decision. This statute must not be vague. Even so, there are situations that differ on whether an application of the death penalty is or is not valid:

1) For murder—valid: 2) For an accomplice to felony murder—valid if accomplice participated in a major way and acted with reckless disregard to the value of human life 3) For rape—disproportionate and invalid 4) If prisoner is insane—invalid 5) If prisoner is intellectually disabled—invalid 6) If prisoner was younger than 18 when crime was committed—invalid

Procedure for an automobile stop to be valid, and not constitute an unconstitutional seizure:

1) Generally must have at least a reasonable suspicion that a law has been violated 2) Exception—special law enforcement needs can justify suspicionless roadblocks a) Cars must be stopped on basis of a neutral, articulable standard b) Must serve purpose closely related to a particular problem pertaining to automobiles and their mobility

Exceptions to the poisonous tree doctrine:

1) Independent source—evidence will be admitted if from a source independent of the unconstitutional conduct 2) Attenuation—intervening act or circumstance 3) Inevitable discovery by police 4) Live witness testimony 5) In-court identification 6) Violations of no-knock entry rule 7) Good faith reliance on a defective search warrant 8) Use of evidence to impeach

Assault:

1) Intent to commit battery; or 2) Intentional creation (other than by mere words) of a reasonable apprehension in the mind of the victim of imminent bodily harm

Exceptions to the warrant requirement to perform a search:

1) Search incident to lawful arrest (contemporaneous requirement) 2) Automobile exception - Need probable cause to believe vehicle contains contraband or fruits, instrumentalities, or evidence of a crime. Police may search anywhere in/on car where item that's subject of search may be found. Contemporaneousness not required 3) Plain view - Police must be legitimately on premises when they discover contraband or fruits, instrumentalities, or evidence of a crime lying out in plain view. 4) Consent (from one with apparent right to use or occupy property) - if the suspect is present, they may overrule the consent. Note that a parent usually has authority to consent to search of child's room if parent has access. 5) Stop and frisk 6) Hot pursuit of a fleeing felon 7) Evanescent evidence (that is, evidence likely to disappear before warrant can be obtained, such as tissues from under a suspect's fingernails) 8) Emergency aid/community caretaker exception (that is, search justified by threats to health or safety) 9) Inventory searches incident to arrest - Valid if pursuant to established police department procedure 10) Public school searches by school officials 11) Mandatory drug testing - has been upheld when it serves a special need beyond the needs of law enforcement. Exs: High school students in extracurriculars; Government employees with access to drugs 12) Border searches - warrantless searches broadly upheld to protect sovereignty

The specific intent crimes and the intent they require (SCALE BRAFFF):

1) Solicitation: intent to have the person solicited commit the crime 2) Conspiracy: intent to have the crime completed 3) Attempt: intent to complete the crime. Note that attempt is always specific intent, even if the underlying crime isn't. Ex, common law murder doesn't require a specific intent to kill, but attempted common law murder requires the specific intent to kill. Ex: D intends to scare V by shooting V's hat. If D's shot kills V, D is guilty of murder; but if V is just wounded, D isn't guilty of attempted murder 4) First degree premeditated murder: premeditated intent to kill 5) Assault: intent to commit a battery 6) Larceny: intent to permanently deprive the other of their interest in the property taken 7) Embezzlement: intent to defraud 8) False pretenses: intent to defraud 9) Robbery: intent to permanently deprive the other of their interest in the property taken 10) Burglary: intent to commit a felony in the dwelling 11) Forgery: intent to defraud

Kidnapping:

1) Some movement or concealment of a victim in a "secret" place. 2) Some courts hold that "kidnapping" is committed when the victim is moved during the commission of another crime to a location that places her in more danger than that necessarily involved in the commission of the other crime.

There is no right to privacy in:

1) Sound of your voice 2) Style of your handwriting 3) Paint on outside of car 4) Account records held by bank 5) Location of car on public street or driveway 6) Anything seen across open fields 7) Anything seen from flying over public airspace 8) Odors from luggage or car 9) Garbage set out on curb for collection (distinguish between garbage just leaning against side of house)

The exclusionary rule doesn't apply when the police arrest someone erroneously but in good faith that they're acting pursuant to a valid arrest warrant, search warrant, or law. There are four exceptions to a good faith reliance on a defective warrant:

1) The affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied on it. 2) The affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it. 3) The officer or prosecutor lied to or misled magistrate when seeking the warrant. 4) The magistrate is biased and therefore has wholly abandoned their neutrality.

Elements of embezzlement:

1) The fraudulent 2) Conversion 3) Of personal property 4) Of another 5) By a person in lawful possession of that property

Elements of Arson:

1) The malicious; 2) Burning; 3) Of the dwelling; 4) Of another

What are some things that are NOT a defense to solicitation:

1) The person solicited is not convicted 2) The offense solicited could not in fact have been successful (factual impossibility). 3) In most jurisdictions, not a defense that the solicitor renounces or withdraws the solicitation.

Battery:

1) Unlawful application of force to another; 2) Resulting in bodily injury or offensive touching

False imprisonment:

1) Unlawful: 2) Confinement of a person without his valid consent

As for accomplice liability - when the substantive offense has recklessness or negligence as its mens rea, most js hold that the intent element is satisfied if the accomplice:

1) intended to facilitate the commission of the crime, and 2) acted with recklessness or negligence (whichever is required)

To est a claim of ineffective assistance of counsel, D must show:

1) that their counsel was deficient, and 2) the deficiency was prejudicial. The "prejudice" part focuses not just on the likelihood of conviction at trial. If the risk posed by a conviction is great, a D can be prejudiced even when a different avenue would've presented only the smallest chance of success.

Defenses for attempt:

1. Abandonment of attempt - Not a defense at common law. Is a defense under the MPC if fully voluntary and complete. 2. Legal impossibility is a defense 3. Factual impossibility is NOT a defense for any of the inchoate crimes

Exceptions to good faith reliance on a defective warrant:

1. Affidavit so lacking in probable cause no reasonable officer would rely on it 2. Affidavit is so lacking in particularity no reasonable officer would rely on it 3. Officer or prosecutor lied to or misled magistrate 4. Magistrate is biased and wholly abandoned neutrality

Rule for deadly force - Person may use deadly force in self-defense if they:

1. Are without fault 2. Are confronted with unlawful force 3. Reasonably believes they are threatened with imminent death or great bodily harm

Specific instances that constitute a "seizure of a person:"

1. Arrest 2. Investigatory detentions (Terry stops) 3. Automobile stops 3. Use of deadly force NOTE: A subpoena to appear before a grand jury is not within Fourth Amendment protection

At any time prior to or during a custodial interrogation, the accused may invoke a Miranda (Fifth Amendment) right to counsel. If the accused invokes this right, all questioning must cease until the accused is provided with an attorney or initiates further questioning himself. After receiving Miranda warnings, if an accused invokes the right to remain silent, the police cannot badger the accused. However, courts have ruled that if the police scrupulously honor the request, they can rewarn the accused and later resume questioning, at least about a different crime. Here, however, the accused did not simply invoke the right to remain silent, but rather requested an attorney. After such a request, as indicated above, all questioning must cease.

1. For confessions to be admissible, the Due Process Clause of the Fourteenth Amendment requires that they be voluntary. While voluntariness is a fact question that is assessed by looking at the totality of the circumstances, the duration and manner of the police interrogation here indicate that the confession probably was the result of actual coercion. If the confession is found to be involuntary, the former student can invoke the exclusionary rule to exclude the cocaine as "fruit of the poisonous tree." In contrast to an involuntary confession, a confession obtained without Miranda warnings, as long as the failure to warn was not purposeful, may not be sufficient to justify excluding the nontestimonial "fruits" of the confession.

Prosecutorial Disclosure Duties:

1. Government must disclose exculpatory evidence 2. Failure = due process violation if there's a reasonable probability that the trial result would have been different if the undisclosed evidence had been presented

Proceedings that are outside the scope of the poisonous tree doctrine:

1. Grand juries 2. Civil proceedings 3. Violations of state law 4. Violations of internal agency rules 5. Proceedings to revoke parole

The Fifth Amendment guards against Double Jeopardy. It is applicable to the states via the 14th Amendment. Once jeopardy attaches, D can't be retried for the same offense. Note that two crimes are not the same offense if each crime requires proof of an element the other does not require. Note also that only repetitive criminal prosecutions (not civil actions) are prohibited. Charges by separate sovereigns (e.g., state and federal governments) are not prohibited. The Double Jeopardy Clause does not bar successive prosecutions of distinct offenses arising from the same conduct, even if a single sovereign prosecutes them. Exceptions permitting retrial:

1. Hung jury 2. Mistrial for manifest necessity to abort original trial 3. Retrial after successful appeal - Cannot be for more serious crime than crime convicted of in first trial

One will have a defense to a crime if a required element of that crime hasn't been met, or if they don't possess the required mental state. Other traditional defenses:

1. Insanity 2. Intoxication 3. Infancy 4. Self-defense 5. Duress or necessity 6. Mistake of fact 7. Consent (rare); and 8. Entrapment (rare)

When does jeopardy attach:

1. Jury trial—when jury empaneled and sworn 2. Bench trial—when first witness sworn 3. Juvenile proceedings—at commencement of proceeding

Defenses to common law murder:

1. Justification (self-defense); and 2. Provocation (reduces the crime to voluntary manslaughter)

Shorthand form of the insanity tests:

1. M'Naghten: doesn't know right from wrong or understand nature of actions 2. Irresistible impulse test: unable to control actions or conform conduct to the law 3. Durham - but for the mental illness, D wouldn't have committed the act 4. MPC - combo of M'Naghten and irresistible impulse 5. Voluntary intoxication is a defense to specific intent crimes. Treat involuntary intoxication like insanity.

Aside from a withdrawal defense, there are two instances in which someone can successfully argue against them being subject to accomplice liability:

1. Members of the class protected by a statute are excluded from accomplice liability. Ex: a woman transported across state lines can't be an accomplice to the crime of transporting women across state lines for trafficking. 2. A party necessary to the commission of a crime, by statutory definition, who's not provided for in the statute is excluded from accomplice liability. Ex: If a statute makes the sale of heroin illegal, but doesn't provide for punishment of the purchaser, the purchaser can't be found guilty under the statute as an accomplice to the seller. The purchaser is a party necessary to the commission of the crime bc the seller can't sell heroin without a buyer.

Bases for a D's Collateral Attack on their prior Guilty Plea:

1. Plea involuntary—errors in plea-taking procedure 2. Court lacked jurisdiction to take plea 3. Ineffective assistance of counsel 4. Failure of prosecutor to keep plea bargain

Stages when 6th amendment right to counsel applies:

1. Post - indictment interrogation 2. Preliminary hearings to determine probable cause to prosecute 3. Arraignment 4. Post - charge lineups 5. Guilty plea and sentencing 6. Felony trials 7. Misdemeanor trials when imprisonment actually imposed 8. Overnight recesses during trials 9. Appeals as a matter of right 10. Appeals of guilty pleas

The MPC Mindsets:

1. Purposely—conscious object to engage in an act or cause a certain result 2. Knowingly—as to nature of conduct: aware of the nature of conduct or that certain circumstances exist. As to result: knows that conduct will necessarily or very likely cause result 3. Recklessly—conscious disregard of a substantial and unjustifiable risk that circumstances exist or a prohibited result will follow, and this disregard is a gross deviation from a "reasonable person" standard of care 4. Negligently—failure to be aware of a substantial and unjustifiable risk that circumstances exist or a prohibited result will follow, and this disregard is a gross deviation from a "reasonable person" standard of care

What are the Miranda warnings:

1. Right to remain silent 2. Anything that is said may be used in court 3. Right to an attorney 4. If cannot afford attorney, one will be appointed

The mindset of "specific intent:"

1. Specific intent a. Requires doing an act with a specific intent or objective b. Cannot infer specific intent from doing the act c. Major specific intent crimes are solicitation, attempt, conspiracy, assault, larceny, robbery, burglary, forgery, false pretenses, embezzlement, and first degree premeditated murder

11. Excuse of duress 1. Defense to crimes other than intentional homicide - D reasonably believed another person would imminently inflict death or great bodily harm upon them or a member of their family if D didn't commit the crime. Threats to harm a third person may also suffice to establish the defense of duress. 12. Threats to Property a. Traditionally, threats to property were not sufficient; however, a number of states, consistent with the M.P.C., do allow for threats to property to give rise to a duress defense, assuming that the value of the property outweighs the harm done to society by commission of the crime. 13. Necessity a. Person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime. The test is objective; a good faith belief is not sufficient. Under the traditional common law view, the pressure producing the choi

14. Mistake or ignorance of fact a. Mistake or ignorance of fact is only relevant to criminal liability if it shows the D lacked the state of mind required; thus, it is irrelevant if there's strict liability. b. Reasonableness 1) If mistake is offered to "disprove" a specific intent, the mistake need not be reasonable; however, if it's offered to disprove any other state of mind, it must have been a reasonable mistake or ignorance. c. Don't confuse the defense of mistake of fact with the issue of factual impossibility. Mistake is raised as a defense to a crime that's completed; mistake of fact may negate the intent required for the crime. Impossibility arises only when D has failed to complete the crime bc of their mistaken belief about the facts, and is being charged with an attempt; factual impossibility is not a defense to attempt.

15. Mistake or ignorance of law a. Generally, it's not a defense that D believed their activity wouldn't be a crime, even if that belief was reasonable and based on the advice of an attorney. 1) However, if the reliance on the attorney negates a necessary mental state element, then reliance can demonstrate the government hasn't proved its case beyond a reasonable doubt. b. Exceptions - D has a defense if: (1) the statute proscribing their conduct wasn't published or made reasonably available prior to the conduct; (2) there was reasonable reliance on a statute or judicial decision; or (3) in some js, there was reasonable reliance on official interpretation or advice. c. Mistake or Ignorance of Law May Negate Intent 1) If D's mistake or ignorance as to a collateral legal matter proves D lacked the state of mind required, they are entitled to acquittal. The ignorance or mistake must involve the elements of the crime, n

16. Entrapment a. Entrapment occurs if the intent to commit the crime originated not with the D but with law enforcement officers. Entrapment exists only if: 1) The criminal design originated with law enforcement officers, and 2) D wasn't predisposed to commit the crime prior to contact by the government. b. Merely providing the opportunity for a predisposed person to commit a crime isn't entrapment. c. D can't be entrapped by a private citizen. Under fed law, an entrapment defense can't be based solely on the fact that a gov agent provided an ingredient for commission of the crime (ex, ingredients for drugs), even if the material provided was contraband.

A defendant is the proximate cause of a death if:

1the death was the natural and probable consequence of his conduct, even if he didn't anticipate the precise manner in which it'd occur. An intervening act can shield the D from liability if the act is a mere coincidence or is outside the foreseeable sphere of risk created by the D's act

III. Fourth amendment - evidentiary search and seizure A. Evidentiary searches and seizures must be reasonable to be valid under the 4th Amendment. Here, reasonableness requires a warrant except in six circumstances. B. Governmental conduct 1. 4th Amendment protects only against gov conduct (police officers, other gov agents, or private individuals acting at the direction of the public police). Doesn't protect against searches by privately paid police unless they're deputized as officers of the public police. a. Exs of privately paid police: store security guards, subdivision police, campus police. C. Reasonable expectation of privacy 1. There's two ways in which searches and seizures can implicate 4th Amendment rights: a. Search or seizure by a gov agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy; or b. Physical intrusion by the gov into a constitutionall

2. Standing a. One must have standing to object to a gov search. To have a 4th Amendment right, one must have their own reasonable expectation of privacy with respect to the place searched or the item seized. This determination is fact specific, but one has a reasonable expectation of privacy any time: 1) The person owned or had a right to possession of the place searched 2) The place searched was their home, whether or not they owned or had a right to possession of it (ex, a grandchild living at a grandparent's home); or 3) The person was an overnight guest of the owner of the place searched b. An important "sometimes" category of standing: The person owns the property seized. If a person owns the property seized, they have standing only if they have a reasonable expectation of privacy in the item or area searched. c. One doesn't have a reasonable expectation of privacy in objects held out to the public. This includes info held by third parties (like bank account records). NOTE: police saying that they have a warrant negates consent. Can never be proper consent if they say they have a warrant. d. One does have a reasonable expectation of privacy in their cell-site location info that's stored in the hands of third parties. e. These are things held out to the public in which one has no right to privacy: 1) The sound of your voice 2) The style of your handwriting 3) The paint on the outside of your car 4) Account records held by a bank 5) The location of your car on a public street or in a driveway 6) Anything that can be seen across the open fields 7) Anything that can be seen from flying over public airspace 8) The odors emanating from your luggage or car; and 9) Garbage set out on the curb for collection f. Note: Use of sense-enhancing technology that is not in general public use (ex, a thermal imager) to get info fr

VIII. Trial A. Basic right to a fair trial 1. Trial begins with the opening argument of the prosecution followed by the D's opening argument. Closing arguments proceed in the following order: (1) the government argues, (2) the defense argues, and (3) the government rebuts. 2. 6th and 14th Amendments guarantee the right to a public trial, but the right varies with the stage of the proceeding involved. a. Pretrial Proceedings - Preliminary PC hearings are presumptively open to the public and press, as are pretrial suppression hearings 1) Pretrial suppression hearings may be closed under some circumstances. Ex, the party seeking closure has an overriding interest likely to be prejudiced by disclosure and there's no reasonable alterna¬tive besides closure 2) A ct must make "every reasonable effort" to accommodate public attendance at jury voir dire proceedings. f. Trial - The press and public have a 1st Amendment righ

3. Due process is violated if the judge is shown to have actual malice against the D or to have had a financial interest in having the trial result in a guilty verdict. a. Impermissible bias also is present when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case. 4. A D in a minor misdemeanor prosecution has no right to have the trial judge be a lawyer if upon conviction the D has a right to trial de novo in a court with a lawyer-judge. BUT for serious crimes, the judge probably must be law-trained. 5. Other due process rights - DP is violated if: a. The trial is conducted in a manner making it unlikely that the jury gave the evidence reasonable consideration b. The state compels the D to stand trial in prison clothing c. The state compels D to stand trial or appear at penalty phase proceedings visibly shackled, unless the ct finds the shackling justified by concerns about courtroom security or escape; or d. The jury is exposed to influence favorable to the prosecution e. Due process does not require the police to preserve all items that might be used as exculpatory evidence at trial, but does prohibit bad faith destruction.

c. 8th Amendment prohibits executing a prisoner who is insane at the time of execution, even if he was sane at the time the crime was committed. d. It's cruel and unusual punishment to impose the death penalty on an intellectually disabled person e. 8th Amendment doesn't forbid the execution of a person with a mental disorder that leaves them without any memory of committing the crime, if they can still form a rational understanding of the reason for the death sentence. f. Execution of persons who were under 18 years old at the time they committed their offense (including murder) violates the Eighth Amendment. g. The mere possibility that the lethal injection protocol used by many states might be administered improperly and cause the condemned unnecessary pain doesn't make the procedure cruel and unusual punishment. It'd be cruel and unusual only if the condemned can prove there's a serious risk of inflicting unn

3. Status Crimes a. A statute that makes it a crime to have a given "status" violates the 8th Amendment bc it punishes a mere propensity to engage in dangerous behavior. However, it's ok to make criminal specific activity related to a certain status (ex, DUI). 4. 8th Amendment forbids the sentence of life imprisonment without parole for a minor who committed a non-homicide crime. Minors who have committed homicide can be sentenced to life imprisonment without the possibility of parole, but the 8th Amendment prohibits the use of a sentencing scheme that imposes mandatory life without parole. 5. In determining the sentence, the trial judge may take into account a belief that the defendant committed perjury while testifying at trial on their own behalf. 6. Where aggregate imprisonment bc of involuntary nonpayment of a fine or ct costs exceeds the maximum period fixed by statute, there's a violation of the Equal Protection Clause.

IV. The inchoate offenses: inchoate means incomplete. There are three inchoate offenses - conspiracy, attempt, solicitation A. Conspiracy 1) The object of the conspiracy must be criminal or the achievement of a lawful object by criminal means 2) Unlike the common law, a majority of states still require an over act, but an act of mere preparation will suffice. 2. The agreement requirement a. The parties' agreement need not be express; can be inferred from joint activity b. Critical issue: whether the j follows the unilateral or common law approach to the two-party requirement for conspiracy 1) Unilateral approach - this is the MPC's approach. Requires that only one party have genuine criminal intent. A D can be convicted of conspiracy if they conspire with one person that's an undercover officer. 2) Bilateral approach - this is the common law approach. Requires at least two people who are actually committed to the

4) If members of a conspiracy agree to commit a crime designed to protect persons within a given class, persons within that class can't be guilty of the crime itself or of conspiracy to commit that crime. Likewise, the nonprotected person cannot be guilty of conspiracy if the agreement was with the protected person only. 5) Effect of Acquittal of Some Conspirators a) Under the traditional view, the acquittal of all the D's conspirators precludes conviction of the remaining D. In some js following the traditional view, a conviction for conspiracy against one D is allowed to stand when the alleged co-conspirator is acquitted in a separate trial b) Acquittal is the key here. If the D and others allegedly conspired and only the D is charged and tried (ex, the other parties aren't apprehended or not prosecuted), the D can be convicted. But if the D is charged and tried and all the others have been acquitted, D can't be convicted. (The acquittals show that there was no one with whom the defendant could conspire.)

j. After receiving Miranda warnings, detainee has several options: do nothing, waive their Miranda rights, assert the right to remain silent, or assert the right to consult with an attorney. 1) Do Nothing - If detainee doesn't respond at all to Miranda warnings, ct won't presume a waiver, but neither will Ct presume the detainee has asserted a right to remain silent or to consult with an attorney. Police may continue to question 2) Waive rights - D may waive their rights under Miranda. To be valid, gov must show by a preponderance of the evidencethe waiver was knowing and voluntary. Ct will look to the totality of the circumstances to decide if this standard was met. But it appears the gov can show the detainee received Miranda warnings and then chose to answer questions, that's probably sufficient 3) Invocation of Right to Remain Silent - detainee's indication they wish to remain silent must be explicit, unambiguous

4) Invocation of Right to Counsel - If detainee unambiguously indicates they wish to speak to counsel, all questioning must cease until counsel has been provided unless the detainee: a) Then waives their right to counsel (ex, by reinitiating questioning) or b) Is released from the custodial interrogation back to their normal life and 14 days have passed since release. c) Note that a request for counsel must be specific (ex, indicate that detainee desires assistance in dealing with interrogation). d) Allowing detainee to consult with counsel and then resuming interrogation after counsel has left generally doesn't satisfy the right to counsel—counsel must be present during the interrogation unless detainee waives the right. e) Note the difference here depending on what the detainee asks: If the detainee indicates they wish to remain silent, police probably may requestion them about a different crime after a break if fresh warnings are administered. If detainee requests counsel, police may not resume interrogating until counsel is provided or detainee initiates the questioning.

D. Searches conducted pursuant to a warrant A. Generally, officers must have a warrant to conduct a search unless it falls within one of the six exceptions to warrant requirement. 1. There's two core reqs for a facially valid search warrant: probable cause, particularity B. Showing of Probable Cause 1. Warrant is issued only if there is probable cause to believe evidence will be found on the person or premises at the time the warrant is executed. Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause 2. An affidavit based on an informer's tip must meet the "totality of the circumstances" test. The informant's reliability and credibility or their basis for knowledge are relevant factors in making this determination. Note that informer's identity generally need not be revealed. 3. A search warrant issued on the basis of an affidav

4. Evidence obtained in reasonable reliance on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant wasn't supported by probable cause. a. This good faith exception applies only if the police obtained a warrant and it's invalid. The exception doesn' apply if the police failed to obtain a warrant. 5. Warrant Must Be Precise on Its Face - must describe with particularity the place to be searched and items to be seized. If it does not, it's unconstitutional, even if the underlying affidavit gives such detail. 6. A Warrant May Be Anticipatory - can predict when illegal items may be in a suspect's home or office. Items need not be on the premises when warrant is issued. 7. A warrant may be obtained to search premises belonging to nonsuspects if there's probable cause to believe that evidence will be found there. 8. Magistrate who issues the warrant must be neutral and detached (state AG isn't neutral)

5. Terminating a conspiracy a. When a conspiracy terminates is important bc acts and statements of co-conspirators are admissible against a conspirator only if they were done or made in furtherance of the conspiracy. b. Conspiracy usually terminates upon completion of the wrongful objective. Unless agreed to in advance, acts of concealment are not part of the conspiracy. Note also that the gov's defeat of the conspiracy's objective doesn't automatically terminate the conspiracy 6. A conspirator may be held liable for crimes committed by other conspirators if the crimes: a. Were committed in furtherance of the conspiracy's objectives, and b. Were foreseeable

7. Defenses to conspiracy a. Factual impossibility - NOT a defense b. Withdrawal - generally not a defense to the conspiracy, bc the conspiracy is complete as soon as the agreement is made and an act in furtherance is done. 1) May be a defense to crimes, though, that were committed in furtherance of the conspiracy a) Means the D can withdraw from liability for the other conspirators' subsequent crimes, but not the conspiracy itself 2) To withdraw, a conspirator must perform an affirmative act that notifies all members of the conspiracy of their withdrawal. a) Notice must be given in time for the members to abandon their plans. If the conspirator has also provided assistance as an accomplice, they must try to neutralize the assistance. b) Remember a conspiracy is complete upon the agreement with the requisite intent and an overt act. Since the overt act can be a preparatory act, the conspiracy is usually complete very soon after the agreement. If the crime's complete, D's guilty of conspiracy—even if they had second thoughts, told their co-conspirators that they were backing out, warned the police, hid the weapons, etc. These actions come too late; the D's guilty of conspiracy. (This may relieve D of criminal liability for their co-conspirators' acts after this withdrawal, but they have no effect on the crime of conspiracy.)

VIII. Defenses A. Insanity 2. M'Naghten Rule a. D is entitled to acquittal if: (1) a disease of the mind; (2) caused a defect of reason; (3) such that D lacked the ability at the time of their actions to either know the wrongfulness of their actions or understand the nature and quality of their actions. b. Delusions, belief that one's actions are morally right, or loss of control because of mental illness are not defenses unless this test is met. 3. Irresistible Impulse Test a. D is entitled to acquittal only if, bc of a mental illness, they were unable to control their actions or conform their conduct to the law. 4. Durham test a. D is entitled to acquittal if the crime was the product of their mental illness (that is, the crime would not have been committed but for the disease). The Durham test is broader than either the M'Naghten test or the irresistible impulse test. b. Is followed only in New Hampshire. 5. A.L

7. Procedural Issues a. All Ds are presumed sane; D must raise the insanity issue. In most states, once the issue is raised, D must prove their insanity, generally by a preponderance of the evidence. Other states (and the MPC) require the prosecution to prove the defendant was sane beyond a reasonable doubt. b. Federal courts require D to prove insanity by clear and convincing evidence. c. Although the insanity defense may be raised at the arraignment when the plea is taken, D need not raise it then. A simple "not guilty" at that time does not waive the right to raise the defense at some future time. d. If D doesn't raise the insanity issue, they may refuse a court-ordered psychiatric exam to determine their competency to stand trial. If D raises the insanity issue, they can't refuse to be examined by a psychiatrist appointed to aid the court in the resolution of his insanity plea. e. In most js, a D acquitted by reason of insanity may be committed to a mental institution until cured. Confinement may exceed the maximum period of incarceration for the offense charged. f. Under the Due Process Clause. D may not be tried, convicted, or sentenced if, as a result of a mental disease or defect, they are unable (1) to understand the nature of the proceedings being brought against them; or (2) to assist their lawyer in the preparation of their defense. D may not be executed if they are incapable of understanding the nature and purpose of the punishment. g. Some states recognize the defense of "diminished capacity" under which the D may assert that as a result of a mental defect short of insanity, they didn' have the mental state required for the crime charged. Most states allowing the diminished capacity defense limit it to specific intent crimes, but a few states allow it for general intent crimes as well.

B. Right to trial by jury trial 1. There's no const right to jury trial for petty offenses, but only for serious offenses. a. An offense is serious if imprisonment for more than six months is authorized. 2. There's also no right to jury trial in juvenile delinquency proceedings. 3. For civil contempt proceedings, there is no jury trial right. 4. For criminal contempt proceedings, cumulative penalties totaling more than six months can't be imposed without affording the D the right to a jury trial. If a judge summarily imposes punishment for contempt during trial, penalties may aggregate more than six months without a jury trial. 5. A judge may place a contemnor on probation for up to 5 years without affording them the right to a jury trial, as long as revocation of probation wouldn't result in imprisonment for more than 6 months. 6. There is no constitutional right to a jury of 12, but there must be at least six

7. Right to Venire Selected from Representative Cross-Section of Community a. D has a right to have the jury selected from a representative cross-section of the community. D need only show the underrepresentation of a distinct and numerically significant group in the venire to show their jury trial right was violated. Note that a D doesn't have the right to proportional representation of all groups on their particular jury. b. Although generally a prosecutor may exercise peremptory challenges for any reason, the Equal Protection Clause forbids the use of peremptory challenges to exclude potential jurors solely on account of their race or gender. 1) An equal protection-based attack on peremptory strikes involves three steps: a) D must show facts or circumstances that raise an inference that the exclusion was based on race or gender. b) Upon such a showing, the prosecutor must come forward with a race-neutral explanation for the strike (even an unreasonable explanation is sufficient, as long as it is race-neutral). c) Judge then determines if prosecutor's explanation was the genuine reason for striking the juror, or merely a pretext for purposeful discrimination. If judge believes prosecutor was sincere, the strike may be upheld.

6th Amendment is offense specific. Thus, even though a D's 6th Amendment rights have attached regarding the charge for which they are being held, D may be questioned regarding unrelated, uncharged offenses without violating his right to counsel (although the interrogation might violate his 5th Amendment right to counsel under Miranda). Two offenses will be considered different if each requires proof of an additional element that the other crime does not require. 6th Amendment right to counsel may be waived. The waiver must be knowing and voluntary. However, the waiver doesn't necessarily require the presence of counsel, at least if counsel has not actually been requested by D but rather was appointed

8. At nontrial proceedings (such as post-indictment interrogations), the harmless error rule applies to deprivations of counsel. But if the D was entitled to a lawyer at trial, the failure to provide counsel results in automatic reversal of the conviction, even without a showing of specific unfairness in the proceedings. Similarly, erroneous disqualification of privately retained counsel at trial results in automatic reversal. 9. A statement obtained in violation of a D's 6th Amendment right to counsel, while not admissible in the prosecution's case-in-chief, may be used to impeach the defendant's contrary trial testimony. This rule is similar to the rule that applies to Miranda violations.

4. An aggressor can use force in defense of themself only if: a. They effectively withdraw from the confrontation and communicate to the other person their desire to do so, or b. The victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw 7. Defense of Other Property a. Defending Possession 1) Deadly force may never be used in defense of property. 2) Reasonable, nondeadly force may be used to defend one's property from what they reasonably believe is an imminent, unlawful interference. 3) Force can't be used if a request to stop or not do the activity would suffice. b. Regaining Possession 1) A person 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

8. Crime Prevention a. Nondeadly force may be used to the extent that it reasonably appears necessary to prevent a felony or serious breach of the peace. b. Deadly force may be used only if it appears reasonably necessary to terminate or prevent a dangerous felony involving risk to human life. 10. Resisting Arrest a. Under the majority rule, nondeadly force may be used to resist an improper arrest even if a known officer is making that arrest. (A minority of courts and MPC don't allow one to resist a known police officer.) b. Deadly force may be used only if the person doesn't know that the person arresting them is a police officer.

The D has a right to confront witnesses against him. This right is not absolute (e.g., disruptive defendant). Instances that violate this right:

A co-defendant's confession that implicates the D is not admissible into evidence unless: 1) The references to the D can be excised, or 2) The confessing defendant takes the stand and subjects himself to cross-examination A prior testimonial statement of witness inadmissible unless: 1. The witness is unavailable and 2. Defendant had an opportunity to cross-examine witness when statement was made "Testimonial" includes testimony from preliminary hearings, grand jury hearings, former trial, and police interrogation. 1) Police interrogation—nontestimonial if purpose of questioning was to respond to an ongoing emergency 2) Results of forensic testing testimonial if offered to prove truth of testing 3) May forfeit by wrongdoing intended to keep witness from testifying

Per Fourth Amendment jurisprudence, motel rooms are treated like residences, and overnight guests have a reasonable expectation of privacy in their rooms. Therefore, officers need a warrant to search a motel room or an exception to the warrant requirement must apply.

A defendant may, by virtue of her participation in a conspiracy, be liable for the crimes of all other conspirators if the crimes were committed in furtherance of the objectives of the conspiracy and were a natural and probable consequence of the conspiracy (i.e., were foreseeable).

If, after being given his Miranda warnings, the suspect invokes his right to counsel, all interrogation must stop until counsel is present. "Interrogation" includes any words or actions by the police that the police should know are likely to produce an incriminating response. However, the suspect may volunteer information to the police at any time.

A defense to the underlying felony precludes a conviction for felony murder. Voluntary intoxication is a defense to specific intent crimes, such as burglary, if it prevents the defendant from formulating the requisite intent. So if D is charged with first degree murder for a killing that happened during the commission of the felony of burglary, might not be convicted if he can argue he didn't have the intent to commit a burglary bc he was voluntarily intoxicated.

Accessory after the fact (is not an accomplice): Often as simple as helping someone escape. D isn't liable for the crime itself; this is a separate, lesser charge.

A jury can infer the required general intent merely from the doing of the act. It is not necessary that evidence specifically proving the general intent be offered by the prosecution. However, a jury cannot infer that the defendant acted with specific intent by the doing of the act. (That said, the manner in which an act is done may provide circumstantial evidence that the defendant acted with specific intent.)

The Sixth Amendment guarantees a right to jury for serious offenses. Serious offenses are offenses that are punishable by imprisonment for more than six months. There is no right to a jury trial in civil contempt cases. A jury trial must have at least jurors. Jury verdicts must be unanimous in a criminal case.

A jury should comprise a representative cross-section. The defendant need not be one of the excluded group to complain a jury isn't representative. A party's peremptory challenges cannot be used in discriminatory manner. If defendant shows facts or circumstances raising an inference of prejudice, then the Prosecutor must give race- or sex-neutral explanation, and the Judge must then determine prosecutor's sincerity

A killing committed under adequate provocation is voluntary manslaughter. Committing a felony that results in death is murder. The intent to commit a felony satisfies the malice requirement to classify a killing as murder.

A killing committed without express malice may be murder if malice is implied. "Malice aforethought" for common law murder can be satisfied by (i) the intent to kill; (ii) the intent to inflict great bodily injury; (iii) a reckless indifference to an unjustifiably high risk to human life; or (iv) the intent to commit a felony. The intent to kill is deemed to be "express malice," whereas, in the latter three, malice is implied. Although "implied," the latter three states of mind also satisfy the malice requirement for common law murder.

One who actually commits a physical act that has been made illegal by law with the accompanying state of mind may be charged with and convicted of a crime. If either the act or intent is lacking, the defendant is not guilty of that crime. The essential elements of a crime: voluntary physical act and mental state

A mental state can require: 1. Specific Intent 2. Malice 3. General intent 4. One of the MPC mindsets

A person is privileged to use deadly force to prevent a crime only if it is an inherently dangerous felony.

A person can be arrested at the home of a third party, but the police generally cannot enter the third party's home without consent unless they have a search warrant for the home.

There are two standards that diff js apply in regards to the mens rea for criminal negligence:

A person has a mens rea for criminal negligence when he: 1. 1) fails to be aware of a substantial and unjustifiable risk, and 2) this failure constitutes a substantial deviation from the standard of care that a reasonable person would have exercised in the same situation 2. Some states use a recklessness standard for involuntary manslaughter and require that the person consciously disregard a substantial and unjustifiable risk

XII. Offenses involving judicial procedure A. Perjury 1. Perjury is the intentional taking of a false oath (lying) regarding a material matter (one that might affect the outcome of the proceeding) in a judicial proceeding. 2. Subornation of perjury consists of procuring or inducing another to commit perjury. B. Bribery 1. Bribery at common law was the corrupt payment or receipt of anything of value for official action. Under modern statutes, it may be extended to nonpublic officials, and either the offering of a bribe or the taking of a bribe may constitute the crime. C. Compounding a crime 1. Compounding consists of agreeing, for valuable consideration, not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon. Under modern statutes, the definition refers to any crime. D. Misprision of a felony 1. At common law, misprision of a felony consisted of the failure to dis

A. Constitutional requirements binding on states 1. The first 8 amendments of the const apply to the fed gov. Most of these rights are applicable to the states through the Due Process Clause of the 14th Amendment. 2. The following rights are binding on the states (as well as the fed gov): a. 4th Amendment prohibition against unreasonable searches and seizures, and the exclusionary rule b. 5th Amendment privilege against compulsory self-incrimination c. 5th Amendment prohibition against double jeopardy d. 6th Amendment right to speedy trial e. 6th Amendment right to a public trial f. 6th Amendment right to trial by jury g. 6th Amendment right to confront witnesses h. 6th Amendment right to compulsory process for obtaining witnesses i. 6th Amendment right to assistance of counsel in felony cases and in misdemeanor cases in which imprisonment is imposed j. 8th Amendment prohibition against cruel and unusual punishment; and k. 8th Amendment prohibition against excessive fines 3. Note: Const gives the floor of protection for criminal Ds. States can grant greater protection B. Constitutional rights not binding on states 1. The right to indictment by a grand jury for capital and infamous crimes = not binding 2. Not yet been determined whether 8th Amendment prohibition against excessive bail creates a right to bail, but most state constitutions create a right to bail and prohibit excessive bail.

The exclusionary rule: This is a just made rule that says evidence obtained in violation of defendant's Fourth, Fifth, or Sixth Amendment rights will be excluded to deter government violation of constitutional rights.

All "fruit of the poisonous tree" (evidence obtained from exploitation of the unconstitutionally obtained evidence) must also be excluded unless the costs of excluding the evidence outweigh the effect the exclusion'd have on police misconduct. It is difficult to have live witness testimony excluded on exclusionary rule grounds. D can't exclude a witness's in-court id by arguing it's fruit of an unlawful detention. Out-of-Court Identifications: Unduly suggestive out-of-court ids creating a substantial likelihood of misidentification can violate the 14th Amendment's DPC. Whether an id procedure is unduly suggestive is judged on a case-by-case basis under the totality of the circumstances. BUT: ct won't consider applying the exclusionary rule unless the unnecessarily suggestive circumstances were arranged by the police.

What is the fruit of the poisonous tree doctrine?

All evidence derived from excluded evidence (as a result of a violation of a D's 4th, 5th, or 6th amendment rights) will also be excluded. This involves a balancing test - there will be no exclusion if the deterrent effect on police misconduct is outweighed by the costs of excluding probative evidence. The Harmless Error Test applies to violations of this doctrine

Automobile exception: if police have PC that a car contains contraband, they can search the whole vehicle, including containers

An accessory after the fact is one who receives, relieves, comforts, or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. Unlike an accomplice, an accessory after the fact has committed a separate crime with a punishment unrelated to the felony committed.

Where two persons are tried together and one has given a confession implicating the other, the general rule is that the Sixth Amendment right to confront adverse witnesses prohibits the use of such a statement. This problem arises because of the inability of the nonconfessing defendant to compel the confessing co-defendant to take the stand for cross-examination at their joint trial. As exceptions to the general rule, the statement may be admitted if: (i) all portions of the statement referring to the other defendant can be eliminated (so that there is no indication of that defendant's involvement); (ii) the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; or (iii) the confession of the nontestifying co-defendant is being used to rebut the defendant's claim that his confession was obtained coercively, in which case the j

An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. The crime committed by the principal must have been completed at the time aid is rendered.

An identification procedure can be attacked as violating due process if it is unnecessarily suggestive and produces a substantial likelihood of irreparable misidentification.

An in-court identification will also be suppressed as a fruit of the poisonous tree unless it has an independent source. The court weighs several factors in determining whether an independent source exists, such as the opportunity of the witness to observe the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.

Although a waiver of the right to counsel will be carefully scrutinized to ensure that the defendant has a rational and factual understanding of the proceeding against him, a defendant has a right to waive counsel and represent himself as long as the waiver is knowing and voluntary and he is competent to proceed pro se. Where the state provides counsel in cases of indigence, it may then seek reimbursement from a convicted defendant who subsequently becomes able to pay. Here, the judge thought that the defendant was competent to represent himself. Therefore, his waiver of counsel should have been honored. Violation of the defendant's right to represent himself will result in a reversal of his conviction. Although, as stated above, the state may recoup costs of appointed counsel from indigents who become able to pay, the state cannot recover from the defendant because the attorney was appointed against the defendant's

Assault is either: (i) an attempt to commit a battery; or (ii) the intentional creation (other than by mere words) of a reasonable apprehension in the mind of the victim of imminent bodily harm. Here, the wife has committed both types of assault: She attempted to commit a battery against the secretary and intentionally placed her in fear of imminent bodily harm. Although she could not be convicted of the first type of assault if she were also convicted of attempted murder or attempted manslaughter (because that type of assault is a lesser-included offense that merges into the greater offense), she could be convicted of the second type of assault (it does not merge because it contains elements not encompassed by attempted murder or attempted manslaughter).

A conspirator can be convicted of a crime committed by another conspirator if the crimes were committed in furtherance of the objectives of the conspiracy AND the crimes were foreseeable Conspirator may limit his liability for subsequent acts of the other members of the conspiracy if he withdraws from the conspiracy by performing an affirmative act that notifies all members of the conspiracy in time for them to have the opportunity to abandon their plans.

At common law, conspiracy consists of (i) an agreement between two or more persons, (ii) an intent to enter into an agreement, and (iii) an intent to achieve the objective of the agreement. The object of the agreement must be something unlawful.

The United States Supreme Court has held that a person does not have a reasonable expectation of privacy in any land or field not a part of the curtilage. Neither has the Court found such places to be constitutionally protected. Thus, there is no Fourth Amendment protection in such areas. Therefore, the police did not violate the Fourth Amendment when they took pictures or when they cut through the fence and entered the field.

At common law, each person who took part in the planning of a crime was criminally liable for the crime of conspiracy and for each offense committed in furtherance of the conspiracy. However, if one of the conspirators "withdrew" from the criminal effort before the substantive crimes occurred, he was not liable for the subsequent crimes. To successfully withdraw, the actor must notify all members of the conspiracy that he has withdrawn; this must be done in time for them to have an opportunity to abandon the planned crimes.

The infancy defense:

At common law, there was no liability for an act committed by a child under 7. For acts committed by a kid between 7 to 14, there was a rebuttable presumption the kid couldn't understand the wrongfulness of their acts. Kids age 14 or older were treated as adults. Modern statutes often modify this and provide that no child can be convicted of a crime until a stated age is reached, usually 13 or 14. However, children can be found to be delinquent in special juvenile or family courts.

Steps for analyzing search and seizure: 1. Is there governmental conduct? Governmental conduct = police officers, government agents, private individuals acting at direction of police 2. Is there standing? Standing to object = reasonable expectation of privacy in respect to place searched or item seized 3. Is there a valid warrant

Automobile stops: Popo may stop car if they have a reasonable suspicion to believe a law was violated. Hidden agenda doesn't matter, so long as there was a valid reason to pull over the car. The police are allowed to perform roadblocks if they stop cars on some neutral, articulable standard. Roadblocks must be designed to serve a purpose closely related to a problem pertaining to cars and their mobility.

The Sixth Amendment provides that in all criminal prosecutions a defendant has a right to the assistance of counsel at all critical stages after formal proceedings have begun. For Sixth Amendment purposes, a criminal prosecution begins when adversary judicial proceedings have commenced, such as the filing of formal charges in this case. Because custodial interrogation is a critical stage of prosecution, the Sixth Amendment is violated by post-charge interrogation unless the defendant has waived his right to counsel. Interrogation includes not only direct questioning, but also any other conduct by the police intended to elicit a response.

Double jeopardy does not prohibit the imposition of cumulative sentences for two or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even though constituting the "same" crime under the Blockburger test (i.e., each offense does not require proof of some additional fact that the other does not) when the punishments are imposed at a single trial. Absent a clear intention, it is presumed that multiple punishments are not intended for offenses constituting the same crime under Blockburger.

Waiver of Fifth Amendment right against self-incrimination - this right must be explicitly revoked, and the waiver must be knowing and voluntary. This is judged under a totality of the circumstances test. If warnings given and defendant talked, valid waiver generally found . If a D claims this right, their request must be scrupulously honored (cannot ask more about the crime).

If D invokes their 5th Amendment right to counsel, all questioning must cease. However, the D may voluntarily reinitiate the questioning. Once he has invoked it, the police have to wait 14 days to question the D again, after D returns to normal life. D's invocation of that 5th Amendment right to counsel must be ambiguous.

Larceny can be committed with lost or mislaid property or property that has been delivered by mistake, but NOT with abandoned property. "Continuing Trespass" Situation with larceny: If D wrongfully takes property without the intent to permanently deprive (ex, without permission borrows an umbrella), and later decides to keep the property, D is guilty of larceny when they decide to keep it. However, if the og taking wasn't wrongful (Ex, D took the umbrella thinking it was theirs) and later decides to keep it, it's not larceny.

B. Embezzlement 1. Embezzlement is: a. The fraudulent b. Conversion (aka dealing with the property in a manner inconsistent with the arrangement by which D has possession) c. Of the personal property d. Of another e. By a person in lawful possession of that property 2. Embezzlement differs from larceny bc in embezzlement, D misappropriates property while it's in their rightful possession. In larceny, D misappropriates property not in their possession 3. The D must intend to defraud a. If D intends to restore the exact property taken, it's not embezzlement. However, if D intends to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money—of identical value— that they intended to return. b. As in larceny, embezzlement isn't committed if the conversion is pursuant to a claim of right to the property. Whether D took the property openly is an important factor. 4. A person does not have to carry away to be an embezzler—just the possession of the property is required. Also, the embezzler does not have to get the benefit

VI. Other offenses against the person A. Assault and battery 1. Battery a. Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. A battery can be, but need not be, intentional, and the force need not be applied directly (ex, causing a dog to attack the victim is a battery). b. Battery is a general intent crime. Some jss recognize consent as a defense to simple battery and/or certain specified batteries. c. Aggravated Battery 2. Assault a. Assault is either: 1) An attempt to commit a battery or 2) The intentional creation—other than by mere words—of a reasonable apprehension in the mind of the victim of imminent bodily harm. b. If there has been actual touching of the victim, the crime is battery, not assault. c. Aggravated Assault 1) Aggravated assault is an assault plus one of the following: (1) the use of a deadly or dangerous weapon, or (

B. False imprisonment 1. False imprisonment is the unlawful confinement of a person without their valid consent. 2. MPC requires the confinement must "interfere substantially" with the victim's liberty. It's not confinement to simply prevent a person from going where they desire to go, as long as alternative routes are available to them. 3. Note that consent is invalidated by coercion, threats, deception, or incapacity due to mental illness, substantial cognitive impairment, or youth. C. Kidnapping 4. Kidnapping = unlawful confinement of a person that involves either (1) some movement of the victim, or (2) concealment of the victim in a "secret" place. 5. Aggravated Kidnapping 1. Aggravated kidnapping includes kidnapping for ransom, for the purpose of committing other crimes, for offensive purposes, and child stealing (child's consent to their detention or movement not applicable bc a kid can't give valid consent).

A suspect may then waive his Miranda rights by answering an interrogator's questions as long as the waiver was knowing and voluntary. The suspect need not be informed of all potential subjects of an interrogation to effect a valid waiver. If the suspect has waived his rights, there is generally no need to repeat the warnings because of a break in the interrogation unless the time lapse has been so long that a failure to do so would seem like an attempt to take advantage of the suspect's ignorance of his rights.

If a person tries to rob someone, and the person isn't afraid and give over their money bc they feel sorry for the robber, then the robber is just guilty of attempted robbery. In robbery, the taking of the property must be as a result of violence or intimidation.

B. Solicitation 1. Elements - solicitation consists of: a. Asking, inciting, counselling, advising, urging, or commanding another to commit a crime b. With the intent that the person solicited commit the crime. c. NOTE: it's NOT necessary the person solicited agree to commit the crime 2. Defenses 1) The M.P.C. recognizes renunciation as a defense if the defendant prevents the commission of the crime, such as by persuading the person solicited not to commit the crime. 2) The solicitor could not be found guilty of the completed crime bc of a legislative intent to exempt them (ex, a minor female cannot be guilty of solicitation of statutory rape by urging an adult male to have intercourse with her, bc she couldn't be guilty of the completed crime). 3. Merger - If the person solicited commits the crime solicited, both they and the solicitor can be held liable for that crime. If the person solicited commits acts suffi

C. Attempt 1. Elements - attempt requires: a. Specific intent to commit the crime attempted, plus b. An overt act in furtherance of the crime 2. Intent requirement - attempt is always a specific intent crime, even if the underlying crime is not. a. Ex: to be guilty of attempted murder, D must've had the specific intent to kill another person, even though murder itself doesn't necessarily require a specific intent to kill 3. Note: Attempt to commit a crime defined as the negligent production of a result (such as negligent homicide) is logically impossible bec a person can't intend to be negligent. Thus, there can be no attempted negligent homicide, etc. The same holds true for crimes that require recklessness. 4. Overt act requirement a. Act must be more than mere preparation for the offense. Traditionally, most cts followed the "proximity" test, which requires the act be "dangerously close" to successful completion of the crime (ex, pointing a loaded gun at an intended victim and pulling the trigger, only to have the gun not fire is sufficient). However, today most state criminal codes and the MPC require the act constitute a "substantial step in a course of conduct planned to culminate in the commission of the crime" that strongly corroborates the actor's criminal purpose. b. Note that the overt act required for attempt is much more substantial than the overt act required for conspiracy. Mere preparation is sufficient for conspiracy, but more is required for attempt.

6. "Technological Searches" a. In assessing the validity of a search incident to arrest involving things that didn't exist when 4th amendment was adopted (ex phones, blood alcohol tests), we balance the degree to which the search intrudes upon a person's privacy against the degree to which the search is needed to promote legitimate governmental interests. b. Contemporaneous with an arrest for intoxicated driving, police may give a warrantless breath test to determine arrestee's alcohol levels, but may not administer a warrantless blood test. 1) Rationale: breath test is not very intrusive and leaves no lasting sample, while a blood test requires piercing the skin and leaves the gov with a genetic sample. 2) Violation of an implied consent law (a law providing that by driving on the roads a driver impliedly consents to a blood test if stopped for intoxicated driving) can be punished civilly (ex, suspension of license

C. Exception 2 - automobile exception 1. If police have probable cause that a car contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search. 2. If a warrantless car search is valid, police may tow it to the station and search it later. a. However, if the vehicle is parked within the curtilage (ex, the driveway) of a suspect's home, police may not search the vehicle without a warrant. b. Note: If the police have probable cause to believe that a car itself is contraband, they may seize it from a public place without a warrant. 3. Note that police have fairly broad authority to search a car depending on what they're looking for. If there is probable cause to search it, can search the entire car and anything in it that might contain the evidence. a. So if they are looking for evidence of illegal drugs, can look in almost anything in the car, but if they are looking for undocumented aliens, can't look in a small box b. Search may extend to packages belonging to a passenger; it's not limited to the driver's belongings. c. Containers Placed in Vehicle - If police have probable cause only to search a container in a vehicle (ex, luggage recently placed in the trunk), they may search only the container, not other parts of the vehicle. 4. The probable cause necessary to justify the warrantless search of an auto under this exception can arise after the car is stopped, but it must arise before anything or anybody is searched.

If a j divides murder into degrees, second degree murder is usually classified as a depraved heart killing (done with a reckless indifference to an unjustifiably high risk to human life) or any murder that isn't classified as a first degree murder

C. Felony murder 1. Any death 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 2. At common law, there are only a handful of felonies (burglary, arson, rape). Statutes today have created many more felonies 3. Limitations on this rule: a. D must've committed or attempt to commit the underlying felony; a defense that negates an element of the underlying offense will also be a defense to felony murder b. The felony must be distinct from the killing itself (ex, commission of aggravated battery that causes a victim's death doesn't qualify as an underlying felony for felony murder liability). c. Death must've been a foreseeable result of the felony (a minority of cts require only that the felony be malum in se). d. The death must've been caused before D's "immediate flight" from the felony ended; once the felon has reached a place of "temporary safety," subsequent deaths are not felony murder. e. In most js, D isn't liable for felony murder when a co-felon is killed as a result of resistance from the felony victim or the police.

Rights during punishment - revocation of probation:

If revocation of probation also involves the imposition of a new sentence, D is entitled to representation by counsel in all cases in which they are entitled to counsel at trial. If, after probation revocation, an already imposed sentence of imprisonment springs into application, or if the case involves parole revocation, the right to counsel is available only if representation is necessary to a fair hearing (ex, D denies commission of alleged acts)

II. Fourth amendment - arrests and other detentions A. Seizure 1. Fourth Amendment provides that people should be free from unreasonable searches and seizures. Any exercise of control by a gov agent over a person or thing is a seizure. 2. Governmental seizures of persons, including arrests, are seizures within the scope of the Fourth Amendment and so must be reasonable. B. Probable cause and arrests 1. What Constitutes a Seizure? a. A seizure occurs when a reasonable person would feel that they were not free to decline the officer's requests or otherwise terminate the encounter. 2. Arrests a. An arrest occurs when police take a person into custody against their will for purposes of criminal prosecution or interrogation. b. Probable Cause Requirement 1) An arrest must be based on probable cause—that is, trustworthy facts or knowledge sufficient for a reasonable person to believe the suspect has committed or is commit

C. Investigatory detentions - Terry stops 1. Police can briefly detain a person even if they lack probable cause to arrest. 2. If the police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts (that is, not merely a hunch), they may detain a person for investigative purposes. 3. If police also have reasonable suspicion the detainee is armed and dangerous, they may frisk the detainee for weapons. 4. Reasonable suspicion is more than just vague suspicion but is less than probable cause. Whether the police have reasonable suspicion depends on totality of the circumstances. a. When reasonable suspicion is based on an informant's tip, there must be an indicia of reliability (including predictive info) to be sufficient. b. Investigatory stops aren't subject to a specific time limit. Police must act reasonably and diligently. Police may ask the detained person to identify themself and generally may arrest the detainee for failure to comply with such a request. c. Detention will turn into an arrest if during detention, probable cause for arrest arises 5. Brief property seizures are similarly valid if based on reasonable suspicion.

XVII. Forfeiture actions A. Actions for forfeiture are brought directly against property and are generally regarded as quasi-criminal in nature. Certain const rights may exist for people whose interest in property would be lost by forfeiture. B. Right to pre-seizure notice and hearing 1. The owner of personal property isn't constitutionally entitled to notice and a hearing before the property is seized for a forfeiture proceeding. A hearing is, however, required before final forfeiture of the property. 2. Where real property is seized, notice and an opportunity to be heard is required before seizure, unless the gov can show that exigent circumstances justify immediate seizure

C. May be subject to 8th Amendment 1. General rule - SCOTUS has held that the Excessive Fines Clause of the 8th Amendment applies only to fines imposed as punishment; it doesn't apply to civil fines. Thus, penal forfeitures are subject to the Clause, but civil forfeitures are not. 2. Penal Forfeitures - If a forfeiture is penal and the Clause applies, the forfeiture won't be "excessive" unless grossly disproportionate to the gravity of the offense (ex, forfeiture of $300k was disproportionate to the crime of failing to report that that money was being transported out of the country). 3. Civil in rem forfeitures generally aren't subject to the Excessive Fines Clause. However, forfeitures made under the federal drug forfeiture statute are penal and therefore are subject to the Clause. 4. Monetary forfeitures (ex, forfeiture of twice the value of illegally imported goods) brought in civil actions generally are not subject to the Eighth Amendment. D. Protection for "innocent owner" not required 1. DPC doesn't require forfeiture statutes to provide an "innocent owner" defense (ex, a defense that the owner took all reasonable steps to avoid having the property used by another for illegal purposes), at least where the innocent owner voluntarily entrusted the property to the wrongdoer.

IX. Guilty Pleas and Bargaining A. Taking the plea 1. Judge must determine that the plea is voluntary and intelligent. They do this by addressing the D personally in open court on the record. Specifically, the judge must be sure that the defendant knows and understands things such as: a. The nature of the charge to which the plea is offered and the crucial elements of the crime charged b. The maximum possible penalty and any mandatory minimum; and c. That D has a right not to plead guilty and that if they do plead guilty, they waive the right to trial 2. Attorney May Inform D - judge need not personally explain the elements of each charge to the D on the record; it is sufficient that the record reflects that the nature of the charge and the elements of the crime were explained to the D by their own counsel. 3. The remedy for a failure to meet the standards for taking a plea is withdrawal of the plea and pleading

C. Plea bargaining 1. A plea bargain will be enforced against the prosecutor and the D, but not against the judge, who does not have to accept the plea. A guilty plea is not involuntary merely because it was entered in response to the prosecution's threat to charge the D with a more serious crime if they don't plead guilty. There is no prosecutorial vindictiveness in charging a more serious offense when D demands a jury trial. D. Collateral effects of guilty pleas 1. A guilty plea conviction may be used as a conviction in other proceedings when relevant (ex, as the basis for sentence enhancement). 2. However, a guilty plea neither admits the legality of incriminating evidence nor waives Fourth Amendment claims in a subsequent civil damages action.

B. Exceptions permitting retrial 1. Certain exceptions permit retrial of a defendant even if jeopardy has attached: a. A state may retry a defendant whose first trial ends in a hung jury. b. A trial may be discontinued and the D re-prosecuted for the same offense when there is manifest necessity to abort the original trial or when termination occurs at D's behest on any ground not constituting acquittal on the merits. c. A state may retry a D who's successfully appealed a conviction unless the ground for reversal was insufficient evidence to support a guilty verdict. 1) Retrial is permitted when reversal is based on the evidence's weight (rather than sufficiency) 2) However, on retrial, a D can't be tried for a greater offense than that for which they were convicted. A harsher sentence may be imposed in trial two, but if the jury found that the death penalty wasn't appropriate in trial one, a death sentence can't

C. Same offense 1. General Rule—When Two Crimes Not the Same Offense a. Two crimes are the same offense unless one requires proof of an additional element the other doesn't, even though some of the same facts may be necessary to prove both of them 2. Cumulative Punishments for Offenses Constituting the Same Crime a. Even if two crimes constitute the same offense under this test, multiple punishments are permissible if there was a legislative intent to have the cumulative punishments (ex, D can be sentenced both for robbery and using a weapon during the commission of a crime if statutes so provide). 3. Lesser Included Offenses a. Attachment of jeopardy for a greater offense bars retrial for lesser included offenses. Attachment of jeopardy for a lesser included offense bars retrial for a greater offense. b. Ex, robbery includes the two lesser crimes of larceny and assault. If a D is tried for robbery, he can't be retried for the lesser included offense of larceny. Similarly, if D is first put in jeopardy for larceny, he can't later be tried for robbery 1) An exception to the double jeopardy bar exists if unlawful conduct that's subsequently used to prove the greater offense (1) hasn't occurred at the time of prosecution for the lesser offense or (2) hasn't been discovered despite due diligence. Similarly, a retrial for murder is permitted if the victim dies after attachment of jeopardy for battery. 2) Effect of Plea on Related Offense - A state may continue to prosecute a charged offense despite D's guilty plea to a lesser included or "allied" offense stemming from the same incident. 4. Double Jeopardy Clause is not violated when a person is indicted for a conduct that was already used to enhance his sentence for another crime. 5. Subsequent Civil Actions a. Double Jeopardy Clause prohibits only repetitive crimin

X. Constitutional rights in relation to sentencing and punishment A. Procedural rights in sentencing 2. A D has a right to counsel during sentencing. The usual sentence may be based on hearsay and uncross-examined reports (ex, D has no right to confrontation or cross-examination). However, where a magnified sentence is based on a statute that requires new findings of fact to be made (ex, D is mentally ill), those facts must be found in a context that grants a right to confrontation and cross-examination. 3. A D in a death penalty case must have more opportunity for confrontation than is given to a D in other sentencing proceedings. B. Resentencing after successful appeal and reconviction 1. If a greater punishment is imposed on a D who's been reconvicted after a successful appeal, the judge must set forth in the record the reasons for the harsher sentence. a. This ensures the D isn't vindictively penalized for exe

C. Substantive rights regarding punishment 1. 8th Amendment prohibits cruel and unusual punishment. A penalty that's grossly disproportionate to the seriousness of the offense committed is cruel and unusual. State appellate courts don't have to compare the death sentence imposed in a case under appeal with other penalties imposed in similar cases.

Necessity defense:

Choice of evils - harm to society is exceeded by harm of criminal act. This is an objective test. It's not available if the D is at fault for creating situation requiring choice. Traditionally, choice had to arise from natural forces; modern cases don't have this req.

One of the implications of the common law requirement that there be at least two guilty parties in a conspiracy arises when the crime involves members of a class protected by the statute. If members of a conspiracy agree to commit an act that violates a statute designed to protect persons within a given class, a person within that class not only cannot be guilty of the crime itself, as discussed above, but also cannot be guilty of a conspiracy to commit the crime.

D's voluntary intoxication would not be a defense to a murder charge that was based on reckless indifference to an unjustifiably high risk to human life. Voluntary intoxication caused by alcohol or drugs is a defense to a crime that requires purpose (intent) or knowledge as long as the intoxication prevents the defendant from formulating the purpose or obtaining the knowledge. It is no defense to crimes involving recklessness or negligence, however. Even though recklessness requires a conscious disregard of the risk, and the defendant's intoxication may make him unaware of the risk, courts hold him liable for recklessness offenses because his initial act of becoming voluntarily intoxicated is deemed reckless under the circumstances. Thus, for murder based on a reckless indifference to an unjustifiably high risk to human life, voluntary intoxication would not be a defense.

6. Joint representation is not per se invalid. However, if an attorney advises the trial ct of a resulting conflict of interest at or before trial, and the ct refuses to appoint separate counsel, D can get an automatic reversal. 7. A D's conflict of interest with their attorney is rarely a ground for relief. 8. D has no right to be jointly represented with their co-Ds if the gov can show a potential conflict of interest. 9. Where a D's made a preliminary showing that they're likely to be able to use the insanity defense, the state must provide a psychiatrist for the preparation of the defense. 10. Right to counsel doesn't forbid the seizure of drug money and property obtained with drug money, even where D was going to use such money or property to pay an attorney. 11. D has no right to consult with their attorney while testifying and may be sequestered from their attorney during short breaks (ex, 15 minutes as op

D. Right to confront witnesses 1. 6th Amendment gives a criminal D the right to confront adverse witnesses. The right is not absolute: Face-to-face confrontation isn't required when preventing confrontation serves an important public purpose (ex, protecting kid witnesses). Also, a judge may remove a disruptive D, and D may voluntarily leave the court¬room during trial. 2. If two persons are tried together and one has given a confession implicating the other, the right of confrontation prohibits use of that statement, even where the confession interlocks with the D's own confession, which is admitted. However, such a statement may be admitted if: a. All portions referring to the other defendant can be eliminated b. The confessing D takes the stand and subjects themself to cross-examination with respect to the truth or falsity of what the statement asserts; or c. The confession of the nontestifying co-defendant is being used to rebut the defendant's claim that their confession was obtained coercively

C. False pretenses 1. False pretenses is: a. Obtaining title b. To personal property of another c. By an intentional false statement of a past or existing fact d. With intent to defraud the other 2. Misrepresentation Required a. The victim must actually be deceived by, or act in reliance on, the misrepresentation, and this must be a major factor of the victim passing title to D b. Under MPC and the modern prevailing view, any false representation suffices, including a false promise to perform in the future. 3. Intent to Defraud a. Depending on the statute, D must've either known the statement to be false or have intended the victim rely on the misrepresentation. Most states will find D "knew" of the falsity of any statements when, after being put on notice of the high probability of the statement's falsity, they deliberately avoided learning the truth.

D. Robbery 1. Robbery consists of: a. A taking b. Of personal property of another c. From the other's person or presence (including anywhere in their vicinity) d. By force or threats of immediate death or physical injury to the victim, a family member, or some person in the victim's presence e. With the intent to permanently deprive them of it 2. For D to be guilty of robbery, the victim must give up their property bc they feel threatened. If they give up their property for another reason (ex, they feel sorry for D, or they want D to go away), D won't be guilty of robbery. D may, however, be guilty of attempted robbery. 3. Robbery differs from larceny bc robbery requires that D use force or threats to obtain or retain the victim's property. Thus, pickpocketing generally would be larceny, but if the victim notices the attempt and resists, the taking would be robbery. 4. The presence requirement is very broadly drawn and would even cover a farmer tied up in his barn while the robber took things from his house. 5. The threat must be a threat of imminent harm.

B. Intoxication 1. Intoxication may be caused by any substance (drugs, alcohol, medicine). It may be raised whenever intoxication negates one of the elements of the crime. Distinguish between voluntary and involuntary intoxication. 2. Voluntary Intoxication a. Intoxication is voluntary if it is the result of the intentional taking without duress of a substance known to be intoxicating. b. Defense to Specific Intent Crimes 1) Evidence of "voluntary" intoxication may be offered only if the crime requires purpose (intent) or knowledge, and the intoxication prevented D from formulating the purpose or obtaining the knowledge. So it may be a good defense to specific intent crimes, but not general intent, malice, or strict liability crime 2) NOTE: For crimes that require recklessness, a person who would've been aware of the risk had he not been intoxicated acts recklessly with regard to the risk. Additionally, the defense

D. Self-defense and other justification defenses 1. The justification defenses arise when society has deemed that although D committed a proscribed act, they shouldn't be punished bc the circumstances justify the action. 2. The right to justification defenses depends on the immediacy of the threat; a threat of future harm is not sufficient. Thus, if someone threatens D by saying, "Tomorrow I'm going to kill you," D isn't justified in killing the person to protect themself. 3. Nondeadly and deadly force a. As a rule of thumb, nondeadly force is justified where it appears necessary to avoid imminent injury or to retain property; deadly force is justified only to prevent death or serious bodily injury. b. Nondeadly Force - A person without fault may use such force as the person reasonably believes is necessary to protect themself from the imminent use of unlawful force upon themself. There is no duty to retreat. c. Deadly Force - A person may use deadly force in self-defense if the person (1) is without fault; (2) is confronted with "unlawful force"; and (3) reasonably believes that they are threatened with imminent death or great bodily harm. 1) If D kills in self-defense but not all three of reqs for the use of deadly force are met, some states would find D guilty of manslaughter rather than murder under the "imperfect self-defense" doctrine. 2) Generally, there's no duty to retreat before using deadly force. The minority view requires retreat before using deadly force if victim can safely do so, unless: a) The attack occurs in the victim's own home b) The attack occurs while the victim is making a lawful arrest; or c) The assailant is in the process of robbing the victim

C. Grand juries 1. The 5th Amendment right to indictment by grand jury hasn't been incorporated into 14th amendment, but some state constitutions require grand jury indictment. a. Most states east of the MS and the fed system use the grand jury in charging process. Western states generally charge by filing an information—a written accusation of the crime prepared and presented by the prosecutor. 2. Grand Jury Proceedings a. Grand jury proceedings are conducted in secret. D has no right to notice that the grand jury is considering an indictment against them, to be present and confront witnesses at the proceeding, or to introduce evidence before the grand jury. b. A witness subpoenaed to testify before the grand jury doesn't have the right to receive Miranda warnings, nor right to a warning he's a "potential D" when called to testify before the grand jury. Witnesses have no right to have an attorney present. c. Gr

D. Speedy Trial 1. A determination of whether D's 6th Amendment right to a speedy trial has been violated is made by an evaluation of the totality of the circumstances. Factors considered are the length of delay, reason for delay, whether D asserted their right, and prejudice to D. The remedy for a violation of the right to a speedy trial is dismissal with prejudice. 2. Right to speedy trial doesn't attach til D's been arrested or charged. If D's charged and incarcerated in another j, reasonable efforts must be used to obtain D's presence. a. It's a violation of the right to a speedy trial to permit the prosecution to indefinitely suspend charges. b. Note: The defendant does not need to know of the charges for the speedy trial rights to attach. c. NOTE: When a speedy trial issue is raised in a question, first check the timing—has the defendant been arrested or charged? If not, there is no right to a speedy trial.

4. Under the "proximate cause" theory, felons are liable for the deaths of innocent victims caused by someone other than a co-felon. Under the alternative "agency" theory of felony murder, the killing must be committed by a felon or their "agent" (that is, an accomplice) with limited exceptions in cases in which the victim was used as a shield or otherwise forced by the felon to occupy a dangerous place. a. Ex: If a bystander is accidentally killed by a police officer during a shootout at the crime scene, the felons will be guilty of felony murder under the proximate cause theory, because they put into operation a series of events that caused the death of the innocent party. However, there'd be no felony murder liability under the agency theory bc a police officer caused the bystander's death.

D. Voluntary manslaughter 1. Voluntary manslaughter is a killing that'd be murder, but for the existence of adequate provocation. 2. Provocation is adequate only if: a. It was a provocation that would arouse sudden and intense passion in the mind of an ordinary person, causing them to lose control (ex, exposure to a threat of deadly force, finding your spouse in bed with another, being a victim of a serious battery) 1) Passion must be reasonable under the circumstances - can't have been something that wouldn't bother most people b. D was in fact provoked c. There was not sufficient time between provocation and the killing for passions of a reasonable person to cool; and d. D didn't in fact cool off between the provocation and the killing 3. Remember that "heat of passion" is not a defense to a killing, although it may reduce the killing from murder to manslaughter. 4. Imperfect self-defense: a. Some states recognize an "imperfect self-defense" doctrine under which murder may be reduced to manslaughter even though: 1) D was at fault in starting the altercation; or 2) D unreasonably but honestly believed in the necessity of responding with deadly forcing (aka, D's actions don't quality for self-defense

Unique situations when DF can be used in self defense:

DF in self-defense may be used by original aggressor only if he tries to withdraw (e.g., run for door) and communicates that withdrawal to the original victim, or if sudden escalation of violence by original victim. Use of DF to arrest—officer must reasonably believe suspect armed or presents a danger to the public. If fact-finder determines absence of right to self-defense, defendant may be guilty of voluntary manslaughter under "imperfect self-defense" theory.

Felony murder: If defendant has a substantive defense to the underlying felony, he usually has a defense to felony murder; "procedural" defenses (e.g., statute of limitations) generally no defense For a D to be convicted of felony murder, the killing must be foreseeable

Deaths caused while fleeing from a felony are felony murder, but deaths that arise after defendant has found some point of temporary safety are not Note a majority rule—defendant is not liable for felony murder for the death of a co-felon as a result of resistance by the victim or the police

3. Under the Confrontation Clause, prior testimonial evidence may not be admitted unless: a. The declarant is unavailable, and b. D had an opportunity to cross-examine the declar¬ant when the statement was made c. What Is Testimonial? 1) Includes statements from a preliminary hearing, a grand jury hearing, a former trial, or police interrogation conducted to establish or prove past acts. 2) Statements made to aid in an ongoing emergency—such as answering a 911 operator's question—aren't testimonial. 3) Statements to individuals who aren't principally charged with uncovering and prosecuting crimes are subject to the Confrontation Clause, but they are significantly less likely to be testi¬monial than statements given to police officers. 4) If results of forensic lab tests are offered for proof of the matter asserted, they're testimo¬nial in nature and inadmissible unless the person who did the testing is made av

E. Burden of proof, sufficiency of evidence, and jury instructions A. DPC requires in all criminal cases that the state prove guilt beyond a reasonable doubt. The presumption of innocence is a basic component of a fair trial. However, the state may generally impose the burden of proof upon the D regarding an affirmative defense, such as insanity or self-defense. 1. A mandatory presumption or a presumption that shifts the burden of proof to the D violates the 14th Amendment's requirement that the state prove every element of the crime beyond a reasonable doubt. B. A judge is to give a jury instruction requested by the D or the prosecution if the instruction is correct, has not already been given, and is supported by some evidence

D. Exception 3 - plain view 1. Police may make a warrantless seizure when they: a. Are legitimately on the premises b. Discover evidence, fruits or instrumentalities of crime, or contraband c. See such evidence in plain view; and d. Have probable cause to believe (aka, must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime 2. For this exception, be sure the police is legitimately on the premises, such as on a public sidewalk or in a home executing a warrant. If the officer is, anything he sees (or smells, hears, etc.) in plain view is admissible. Thus, if while executing a search warrant for a handgun, the officer opens a small drawer where the gun could be and sees heroin, the heroin is admissible since it was in plain view of an officer who had a right to look there.

E. Exception 4 - Consent 3. A warrantless search is valid if the police have a voluntary consent. 4. Knowledge of the right to withhold consent isn't a prerequisite to establish a voluntary consent. The scope of the search may be limited by the scope of the consent, but generally extends to all areas to which a reasonable person would believe it extends. 5. Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants. a. However, an occupant can't give valid consent to a search when a co-occupant is present, objects to the search, and the search is directed against the co-occupant. b. If a co-occupant has objected to a search and is removed for a reason unrelated to the refusal (ex, a lawful arrest), police may act on consent of the remaining occupant, even if the removed co-occupant had refused consent. c. For exam, see whether the person has reasonably apparent authority to consent. 1) Ex, a homeowner parent can consent to a search of the kitchen, and probably to a search of their son's room unless the facts strongly indicate the parent does not have a right to go in the room (ex, always locked, only D has key, etc.). 2) Note: SCOTUS hasn't yet said if a parent may consent over their kid's objection

D. Automobile stops 1. Officers can stop a car if they have reasonable suspicion that a law has been violated. 2. During routine traffic stops, a dog sniff is not a search, so long as police don't extend the stop beyond the time needed to issue a ticket or conduct normal inquiries. 3. SCOTUS says that during such a traffic stop, a dog "alert" to the presence of drugs can form the basis for probable cause for a search. 4. But note: SCOTUS also held the police (without probable cause) can't use a drug sniffing dog outside of the home of a suspected drug dealer. 5. An officer's mistake of law (ex mistakenly believing a vehicle must have two working brake lights) does not invalidate a seizure as long as the mistake was reasonable. 6. Automobile stop is a seizure not only of the driver, but also any passengers. Passengers have standing to exclude evidence found during the stop. 7. If the police set up a roadblock for pur

E. Other detentions 1. If police have probable cause to believe a suspect has hidden drugs in their home, they may, for a reasonable time, prevent suspect from going into the home unaccompanied so suspect can't destroy the drugs while they obtain a search warrant. 2. A valid warrant to search for contraband allows police to detain premises' occupants during a proper search. 3. Seizure of a person (by subpoena) for a grand jury appearance isn't in 4th Amendment's protection. 4. There's a 4th Amendment "seizure" when an officer uses deadly force to apprehend a suspect. Officer may not use deadly force unless it is reasonable to do so under the circumstances (ex, where suspect poses a danger to their own life or the lives of others).

g. Generally, evidence obtained in violation of the Miranda rules is inadmissible at trial under the exclusionary rule. 1) Statements obtained in violation of the Miranda rules may be used to impeach the D's trial testimony, but may not be used as evidence of guilt. 2) If the police obtain a confession from a detainee without giving them Miranda warnings and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the "question first, warn later" nature of the questioning was intentional (that is, facts make it seem like the police used this as a scheme to get around the Miranda requirements). a) However, a subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent. 3) If the police fail to give Miranda warnings and during interrogation a detainee gi

E. Pretrial identification 1. Sixth Amendment Right to Counsel a. A suspect has a right to the presence of an attorney at any post-charge lineup or showup. Doesn't have a right to counsel at photo ids or when police take physical evidence, such as handwriting exemplars or fingerprints. b. Recall that the right to counsel before trial is v limited and doesn't cover procedures where the D isn't personally confronted by the witness against them (as in photo id). 2. A D can attack an id as denying due process if the id is unnecessarily suggestive and there is a substantial likelihood of misidentification. 3. Because a lineup does not involve compulsion to give "testimonial" evidence, a suspect's Fifth Amendment right against compelled self-incrimination does not apply. Thus, D may not refuse to participate in a lineup on this basis. 4. The remedy for unconstitutional ids is exclusion of the in-court id. 5. A witness may make an in-court id despite the existence of an unconstitutional pretrial id if the in-court id has an independent source. The most common independent source is opportunity to observe at the time of the crime (ex, the witness viewed the D close up for several minutes during commission of the crime). 6. Admissibility of id evidence should be determined at a suppression hearing in the absence of the jury, but exclusion of the jury is not constitutionally required. The government bears the burden of proving that: (1) counsel was present; (2) the accused waived counsel; or (3) there is an independent source for the in-court identification. The defendant must prove an alleged due process violation.

Withdrawal is a defense for someone accused of accomplice liability. A person who effectively withdraws from a crime before it's committed can't be held guilty as an accomplice. Withdrawal must occur before the crime becomes unstoppable

If the person encouraged the crime, the person must repudiate the encouragement. If the person aided by providing assistance to the principal (such as giving materials), the person must do everything possible to attempt to neutralize the assistance (such as attempting to retrieve the materials). Notifying the police or taking other action to prevent the crime is also sufficient. A mere withdrawal from involvement without taking any additional action isn't sufficient.

D. The scope of protection 1. Testimonial but Not Physical Evidence a. 5th Amendment privilege protects only testimonial or communicative evidence and not real or physical evidence. For a suspect's communication to be considered testimonial, it must relate a factual assertion or disclose info. b. Exs of non-testimonial evidence that the prosecution can compel a person to produce include samples of a person's blood, handwriting, voice, and hair. c. A note on DNA collection: The Supreme Court held that it is constitutionally valid to take a DNA cheek swab after an arrest for a serious crime. 2. Compulsory Production of Documents a. A person served with a subpoena requiring production of documents tending to incriminate them generally has no basis in the privilege to refuse to comply, bc the act of producing the documents does not involve testimonial self-incrimination. 3. Seizure of Incriminating Documents a. 5th

E. Prohibition against burdens on assertion of privilege 1. Comments on Defendant's Silence a. A prosecutor can't comment on a D's silence after being arrested and receiving Miranda warnings. Also can't comment on D's failure to testify at trial. b. D, on a timely motion, is entitled to have the judge instruct the jury that they may not draw an adverse inference from D's failure to testify. Moreover, the judge may offer this instruction sua sponte, even over the defendant's objection. 1) Exception: A prosecutor can comment on D's failure to take the stand when the comment is in response to defense counsel's assertion that the D wasn't allowed to explain their side of the story. c. Silence Before Miranda Warnings 1) Note that if a suspect chooses to remain silent before police read them their Miranda rights, that silence can be used against the suspect in court. d. Harmless Error Test Applies: When a prosecutor impermissibly comments on a D's silence, the harmless error test applies. 2. Penalties for Failure to Testify a. The state can't "chill" a D's exercise of their privilege against compelled self-incrimination by imposing penalties for failure to testify.

Two important Pretrial procedures: 1. Preliminary (Gerstein) Hearing. This is a hearing to determine probable cause. It isn't required if probable cause has already been found (e.g., by grand jury or under arrest warrant). These hearings must be within a reasonable time (48 hours). 2. Initial Appearance - Soon after arrest. D is told of charges, bail set, appointment of counsel if needed.

E. Speedy Trial 1. Under totality of circumstances, court will consider: length of delay, reason for delay, whether defendant asserted his rights, and prejudice to defendant 2. Remedy—dismissal with prejudice 3. Right attaches on arrest or charging

There are two types of manslaughter - voluntary and involuntary

Elements of voluntary manslaughter: 1) Adequate provocation; 2) Gave rise to heat of passion; and 3) No adequate cooling-off period Note that a failed self-defense claim is voluntary manslaughter Two types of involuntary manslaughter: 1. A killing resulting from criminal negligence (note: a killing committed during the commission of an unlawful act not amounting to a felony is involuntary manslaughter); or 2. Misdemeanor manslaughter

Conspiracy:

Elements: 1. An agreement 2. An intent to agree 3. An intent to achieve the objective of the agreement; and 4. An overt act (most js) Each conspirator is liable for all crimes of other conspirators if foreseeable and in furtherance of the conspiracy. Withdrawal is not a defense for conspiracy. The MPC's exception to this: recognizes voluntary withdrawal as defense if the defendant thwarts conspiracy (e.g., informs police) Factual impossibility is also no defense. Conspiracy does not merge - a D can be convicted of both conspiracy and substantive offense

Solicitation:

Elements: 1. Asking someone to commit a crime 2. With the intent that the crime be committed. The refusal or the legal incapacity of the solicitee is no defense. If legislative intent is to exempt solicitor, that's a defense

Entrapment defense:

Elements: 1. Criminal design originated with authorities; and 2. Defendant was not predisposed to commit crime

Different types of potential breaking and entry, when looking at robbery:

Entry = any part of the body crosses into the dwelling Breaking: walking through an open window or door is NOT a breaking. But pushing open a door inside the house IS breaking. Constructive breaking: breaking by fraud or threat Fraud: using a key to a house for any reason other than the reason you were given the key For burglary, intent to commit a felony must exist AT THE TIME of breaking and entering

At time of trial, a D is not competent to stand trial if he 1) lacks rational and factual understanding of the charges and proceedings; or 2) lacks the ability to reasonably to consult with his lawyer. The trial judge has a duty to raise this issue if nobody else does. The burden to prove incompetency may be placed on the D. D may be detained in mental facility for only short time unless commitment proceedings are brought.

Excessive pretrial publicity may necessitate a change in venue.

Limits to the exclusionary rule:

Exclusionary rule is inapplicable to: 1. Grand Juries (unless evidence was obtained in violation of the fed wiretapping statute) 2. Civil Proceedings, 3. Violations of State Law, 4. Internal Agency Rules, and 5. Parole Revocation Proceedings Some illegally obtained evidence may still be used to impeach D's credibility if they take the stand at trial. 1. Ex: An otherwise voluntary confession that violated the Miranda requirements is admissible for impeachment purposes. 2. Ex: evidence obtained from an illegal search may be used by the prosecution to impeach the D's, but not others', statements 3. Exclusion is not an available remedy for violations of the knock and announce rule.

The right to counsel under the Sixth Amendment gives the defendant the right to be represented by privately retained counsel or to have counsel appointed for her by the state if she is indigent. However, the right to counsel applies to misdemeanor trials only when a sentence of imprisonment is actually imposed (including a suspended sentence). Thus, even though the misdemeanor statute permits a potential jail term, its alternative penalty of a fine may constitutionally be imposed on the defendant despite the refusal to provide her with counsel.

Exigent circumstances doctrine doesn't allow police to dispense with the requirement of probable cause. Attempt does not merge with the larger offense, if the larger offense is committed, if we're dealing with a situation of transferred intent. Bc the attempt and the actual crime were separate acts, and so can be punished individually. No death penalty for mentally disabled person

Distinguish false pretenses from larceny by trick:

If the victim is tricked—by a misrepresentation of fact—into giving up mere custody or possession of property, the crime is larceny by trick. If the victim is tricked into giving up title to property, the crime is false pretenses. When choosing between false pretenses and larceny by trick on the exam, focus on what the victim intended to convey. If victim intended to give D ownership of the property, the crime is false pretenses. If they intended to give D possession or custody of the property (ex, D tricked victim into letting them borrow the victim's car), the crime is larceny by trick.

E. Prosecutorial duty to disclose exculpatory info and notice of defenses 1. Gov has a duty to disclose material, exculpatory evidence to the D. Failure to disclose, violates the Due Process Clause and is grounds for reversing a conviction if the D can prove that: (1) the evidence is favorable to D bc it either impeaches or is exculpatory; and (2) prejudice has resulted (that is, there's reasonable probability the result of the case would've been different if the undisclosed evidence had been presented at trial). 2. If D is going to use an alibi or insanity defense, he must notify the prosecution. a. If an alibi is to be used, D must give the prosecution a list of their witnesses. Prosecution must give D a list of the witnesses it will use to rebut the defense. b. Prosecutor may not comment at trial on D's failure to produce a witness named as supporting the alibi or on failure to present the alibi itself.

F. Competency to stand trial 1. Distinguish competency from insanity: a. Insanity is a defense to a criminal charge based on the D's mental condition at the time they committed the crime. A D acquitted by reason of insanity may not be retried and convicted, although they may be hospitalized under some circumstances. b. Incompetency to stand trial isn't a defense to the charge, but rather is a bar to trial. It's based on the D's mental condition at the time of trial. If D later regains competency, they can then be tried and convicted. c. D is incompetent to stand trial if they either: 1) Lack a rational and factual understanding of the charges and proceedings, or 2) Lack sufficient present ability to consult with their lawyer with a reasonable degree of understanding. d. The state may place the burden of proving incompetency by a preponderance of evidence on the D, but requiring D to show incompetency by "clear and convincing" evidence is unconstitutional. e. A D who successfully asserted an insanity defense may be confined to a mental hospital for a term longer than the maximum period of incarceration for the offense. However, D can't be indefinitely committed after regaining sanity merely bc he can't prove he's not a danger to others G. Excessive pretrial publicity prejudicial to the D may require change of venue or retrial

Only the police, not private citizens, can execute a warrant. Furthermore, no third parties can accompany the police when they execute a warrant unless they are there to help id stolen property. Police are supposed to knock and announce when executing a warrant. However, violations of this rule won't result in a suppression of evidence.

Fifth and Sixth amendment rights to counsel: Fifth A: is before formal charges have been filed against you. Sixth amendment is specific - after formal charges, you get your attorney for the burglary/rape/larceny case. can ask you about other types of cases unrelated to that charge - have to re-Mirandize you.

Absent exigent circumstances, the police executing an arrest warrant may not search for the subject of the warrant in the home of a third party without first obtaining a separate search warrant for the home. If the police do execute an arrest warrant at the home of a third party without obtaining a search warrant for the home, the arrest is still valid but evidence of any crime found in the home cannot be used against the owner of the home because it is the fruit of an unconstitutional search.

For purposes of the Fourth Amendment, a seizure occurs when a reasonable person would believe that he is not free to leave. The courts consider the totality of the circumstances in making this determination. A seizure requires a physical application of force (e.g., handcuffing or otherwise subduing a person) or submission to an officer's show of force.

Prison regulations impinge on due process rights only if the regulations impose "atypical and significant hardship" in relation to the ordinary incidents of prison life. No Fourth Amendment Protection in Cells - Prisoners have no reasonable expectation of privacy in their cells and so have no 4th Amendment protection with respect to searches of their cells. Prisoners must be given reasonable access to the courts. A felon may be unable to vote in state elections, and this disability can constitutionally continue beyond the term of their sentence.

Prisoners' 1st Amendment rights of freedom of speech, association, and religion may be burdened by regulations reasonably related to penological interests (ex, running a secure prison). Note that incoming mail can be broadly regulated, but outgoing mail generally can't. Note also that a fed statute prohibits states from interfering with a prisoner's religious practices absent a compelling interest. Prisoners have a right to adequate medical care under the 8th Amendment prohibition against cruel and unusual punishment.

F. Exception 5 - Stop and frisk 1. A Terry stop is a brief detention for the purpose of investigating suspicious conduct. A Terry frisk is a pat down of the outer clothing and body to check for weapons. 2. Officer may stop a person without probable cause for arrest if they have an articulable and reasonable suspicion of criminal activity. 3. Officer may require the detainee to state their name, and if he also reasonably believes the person may be armed and presently dangerous, he may conduct a protective frisk. 4. Remember that a stop is not an arrest, and thus an officer need not have probable cause. However, officer must have a reason to believe that criminal activity is afoot. a. Thus, seeing a person pace in front of a jewelry store might justify a stop. A frisk will be justified only if the officer reasonably thinks that the suspect has a weapon. 5. The scope of the frisk is generally limited to a patdown of ou

G. Exception 6 - hot pursuit, evanescent evidence, and emergency aid 1. Evanescent Evidence a. Evanescent evidence = evidence that might disappear quickly if police took the time to get a warrant. Ex, an officer can scrape under a suspect's fingernails without getting a warrant bc if he took the time to get a warrant, D might wash their hands. b. But note: officers need to get a warrant before taking a blood sample for a DUI arrest (if it is practical to do so). 2. Hot Pursuit a. Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling. b. However, if the fleeing person is suspected of a misdemeanor, their flight doesn't always justify a warrantless entry into a home. Officer must consider all the circumstances to determine whether there's a law enforcement emergency that justifies a warrantless entry. c. Rule of thumb: If police are not within 15 minutes behind the fleeing felon, it's not a hot pursuit that falls under the exception. d. Note: If the police are truly in hot pursuit of a felon, they can enter anyone's home without a warrant, and any evidence they see in plain view will be admissible. 3. Emergency Aid/Community Caretaker Exception a. An officer may enter premises without a warrant if he faces an emergency that threatens the health or safety of an individual or the public. However, this exception doesn't permit an officer to conduct a warrantless search of a person's home.

E. Extortion 1. Common law extortion = the corrupt collection of an unlawful fee by an officer under color of office. 2. Under modern statutes, extortion (blackmail) often consists of obtaining property by means of threats to do harm or to expose info. Under some statutes, the crime is complete when threats are made with the intent to obtain property; meaning, the property need not be obtained. 3. Extortion differs from robbery bc in extortion the threats may be of future harm and the taking does not have to be in the presence of the victim. F. Receipt of stole property 1. Receipt of stolen property consists of: a. Receiving possession and control b. Of "stolen" personal property c. Known to have been obtained in a manner constituting a criminal offense d. By another person e. With the intent to permanently deprive the owner of their interest in it 2. Manual possession is not necessary. D possesses the property when

G. Theft 1. Under many modern statutes and the MPC, some or all of the above property offenses are combined and defined as the crime of "theft." H. Forgery 1. Forgery is the making or altering of a false writing with intent to defraud. More specifically, forgery consists of the following: a. Making or altering (by drafting, adding, or deleting) b. A writing with apparent legal significance (ex, a k, but not a painting) c. So that it's false; that is, representing that it's something that it isn't, not merely containing a misrepresentation (ex, a fake warehouse receipt, but not an inaccurate real warehouse receipt) d. With intent to defraud (although no one need actually have been defrauded) 2. If D fraudulently causes a third person to sign a document that he does not realize he's signing, forgery has been committed. But if the third person realizes they are signing the document, forgery hasn't been committed even if the third person was induced by fraud to sign it. 3. Uttering a Forged Instrument a. Uttering a forged instrument consists of: (1) offering as genuine; (2) an instrument that may be the subject of forgery and is false; (3) with intent to defraud.

When considering murder and whether a specific D's actions led to a death, we must consider the issue of causation. To be convicted of homicide, the defendant must have actually and proximately caused the death of the victim. An intervening act that presents a foreseeable risk will generally not break the chain of causation. However, an unforeseeable risk, such as an injury due to hospital construction, will most likely break the chain of causation.

General rule—defendant is liable for all natural and probable consequences of his conduct unless the chain of causation is broken by the intervention of some superseding factor. Superseding factors: 1) Acts of nature; 2) Coincidence; or 3) Negligent medical care not a superseding factor unless gross negligence or intentional malpractice Two commonly encountered rules: 1) Hastening an inevitable result; and 2) Simultaneous acts by two or more parties

The Fifth Amendment right to be free of double jeopardy provides that once jeopardy attaches for an offense, the defendant may not be retried for the same offense. Under the Blockburger test, two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require. Under this test, a lesser included offense and the greater offense would be considered the "same offense," because the lesser included offense consists entirely of some, but not all, elements of the greater crime. Hence, under double jeopardy rules, attachment of jeopardy for the greater offense bars retrial for lesser included offenses, and attachment of jeopardy for a lesser included offense generally bars retrial for the greater offense. An exception to this latter rule exists if all of the elements for the greater offense had not occurred at the time of prosecution for the lesser offense,

Generally a state has j over a crime if: 1. Any act constituting an element of the offense was committed in the state 2. An action outside the state caused a result in the state 3. The crime involved the neglect of a duty imposed by the law of the state 4. There was an attempt or conspiracy outside the state, plus an act inside the state, or 5. There was an attempt or conspiracy inside the state to commit an offense outside the state

Bail is not required of states, but many state constitutions due require that it be provided. Bail is considered a right under the DPC in cases of federal prosecutions. Excessive bail, when bail rights exist, constitutes an 8th amendment violation. When a bail right exists, unfair procedures regarding bail violate due process.

Grand Juries Grand juries aren't required of states. Upon a finding of probable cause, the grand jury issues a "true bill." The proceedings of a grand jury are secret. The grand jury has broad subpoena power. They're quashed only if the opposing party can prove no reasonable possibility that the material sought is relevant to the grand jury investigation

If you agree to testify against a co-D as part of a plea, that means you have to testify at ever later trial. Not doing that means you broke plea deal For Double Jeopardy purposes, two crimes are the same offense unless each crime requires proof of an additional element that the other doesn't. Note that attachment of jeopardy for greater offense bars retrial for a lesser included offense. Attachment of jeopardy for lesser included offense bars retrial for greater offense.

Privilege against self-incrimination can be asserted by any person in any type of case when answer to question might tend to incriminate them. Being required to give your name after Terry stop doesn't violate 5th amendment. Use and derivative use immunity guarantees that witness's testimony and evidence located bc of testimony won't be used against witness

4. Administrative inspections and searches a. Inspectors must have a warrant for searches of private residences and commercial buildings, but the probable cause required to obtain a warrant is more lenient than for other searches: A showing of a general and neutral enforcement plan will justify issuance of a warrant. b. Exceptions - The following warrantless searches have been upheld: 1) Administrative searches to seize spoiled or contaminated food 2) Administrative searches of a business within a highly regulated industry 3) Inventory searches of arrestees or their vehicles pursuant to established department procedure 4) Searches—including suspicion-less strip searches—of prisoners before being admitted into the general prison population, even arrestees of minor crimes 5) Searches of airline passengers prior to boarding 6) Searches of parolees and their homes—even without reasonable grounds for the search, at least

H. Exception 7 - searches in foreign countries and at the border 1. 4th Amendment doesn't apply to searches and seizures by US officials in foreign countries and involving an alien, at least where the alien doesn't have a substantial connection to the US. For ex, 4th Amendment was held not to bar the use of evidence obtained in a warrantless search of an alien's home in Mexico. 2. Searches at the Border or Its Equivalent a. Neither a warrant, probable cause, nor reasonable suspicion is needed to conduct a search at the U.S. border, due to national sovereignty interests. Roving patrols inside the U.S. border may stop a vehicle for questioning of occupants if officer reasonably suspects it contains undocumented aliens. b. Border officials may stop a car at a fixed checkpoint inside the border for questioning of occupants and may disassemble the vehicle, even without reasonable suspicion. 3. Permissible border searches include opening of international mail when postal authorities have reasonable cause to suspect that the mail contains contraband. 4. Immigration Services Division may do a "factory survey" of the work force in a factory to determine citizenship of each employee. Moreover, even illegally obtained evidence (evidence obtained in violation of 4th Amendment) may be used in a civil deportation hearing. 5. Officials with "reasonable suspicion" that a traveler is smuggling contraband in their stomach may detain the traveler.

There is no federal right to appeal. IF state law gives a D a right to appeal, then the D's right to counsel applies only at their first appeal. The D has no right of self-representation on appeal. New rules announced on direct appeal must be applied to all other cases on direct appeal.

Habeas Corpus is a civil action challenging the lawfulness of a detention. The petitioner has the burden to show unlawful detention by preponderance of evidence. The petitioner must be "in custody" (includes on bail, probation, or parole)

To hold a person liable as an accomplice to a crime, the state must show that his assistance or encouragement was given with the intent to assist the principal and the intent that the principal commit the crime.

Homicide hierarchy: murder, voluntary manslaughter, involuntary manslaughter, battery

7. Liability of corps and associations a. At common law, a corp doesn't have the capacity to commit crimes. But now, under modern statues, corps can be held liable for an act performed by an agent of the corp acting in the scope of their office or employment; or a corp agent high enough in the hierarchy to presume their acts reflect corp police. 8. Transferred intent a. Applies to homicide, battery, arson - does NOT apply to attempt b. D can be liable under this doctrine when they intend the harm that's actually caused, but only intended to harm a different person or object. c. Person guilty of a crime on the basis of transferred intent is usually guilty of two crimes: the completed crime against the actual victim, and the attempt against the intended victim d. Thus, if D intends to shoot and kill X, but instead shoots and kills V, D can be guilty of the murder of V (under the transferred intent doctrine) and X's a

III. Accomplice liability A. Parties to a crime 2. Modern statutes a. Most js have have abolished the common law distinctions between principals in the first degree and principals in the second degree or accessories before the fact. All "parties to the crime" can be found guilty of the principal offense. b. Principal = one who, with the requisite mental state, actually engages in the act or omission that causes the criminal result. c. Accomplice = one who aids, advises, or encourages the principal in the commission of the crime charged. Liable for the principal crime if they intended to aid or encourage crime. d. NOTE: an accessory after the fact (one who assists another, knowing that they have committed a felony to help them escape) is still treated separately. Punishment for this crime usually bears no relationship to the principal offense.

9. Execution of Warrant a. Only police, not private citizens, may execute a warrant, and it must be executed without unreasonable delay. b. Police must knock, announce their purpose, and wait a reasonable time for admittance (unless there's reasonable suspicion that announcing would be dangerous, futile, or would inhibit the investigation). d. The scope of the search is limited to what is reasonably necessary to discover the items described in the warrant. But police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant. e. Violations of knock and announce rule won't cause suppression of evidence if it was otherwise properly obtained— exclusionary rule does not apply here. f. A warrant to search for contraband authorizes the police to detain occupants of the premises during a search, but a search warrant does not authorize the police to search

IV. Fourth amendment - exceptions to the warrant requirement A. All warrantless searches are unconstitutional unless they fit into one of six recognized exceptions to the warrant requirement. B. Exception 1 - search incident to a constitutional arrest 1. Incident to a constitutional arrest (aka, based on probable cause to believe a law has been violated and that meets other const requirements), police may search the person and areas into which they might reach to obtain weapons or destroy evidence. 2. Can also do a protective sweep of the area if they believe accomplices may be present. 3. The search must be contemporaneous in time and place with the arrest, but, at least with respect to searches of cars, the term "contemporaneous" doesn't necessarily mean "simultaneous." 1) Ex, police may search a car's interior after securing a recent occupant of the car in a squad car if they have reason to believe the car holds evidence of the crime for which the recent occupant was arrested. 2) If an arrest is unconstitutional, any search incident to that arrest is also unconstitutional. 4. Scope - What can be searched? The person and the areas within the person's wingspan. 5. Automobiles a. Police may conduct a search of a car's passenger compartment incident to arrest only if at the time of the search: 1) Arrestee is unsecured and still may gain access to the interior of the vehicle; or 2) Police reasonably believe that evidence of the offense for which the person was arrested may be found in the car.

The Sixth Amendment right to counsel applies at any post-charge lineup or showup. There is no 6th Amendment right to counsel for photo identifications. However, there may be a due process issue - namely, unnecessarily suggestive identification procedures give rise to a likelihood of misidentification violate due process:

Improper identifications will be excluded from trial. However, if an out-of-court identification is excluded, an in-court id is allowed if it's from a source independent of the excluded identification. Aka, the witness heard the D's voice for a long time during the robbery and recognized him from that, not from the lineup they did.

The warnings required under Miranda do not include that the detainee has a right to be informed of the charges against him. Also, it is not true that the warnings must include that the detainee has the right to an impartial decisionmaker. While such a right exists under the Due Process Clause, Miranda does not require that detainees be informed of that right.

In terms of robbery: The force or threats may be used either to gain possession of the property or to retain possession immediately after such possession has been accomplished. The property must be taken from the victim's person or presence. "Presence" means some location reasonably close to the victim, but it need not be taken from the victim's person. Property in other rooms of the house in which the victim is located is in her "presence." If force is used, it must be sufficient to overcome the victim's resistance. If threats of immediate death or serious physical injury are used, they must be threats to the victim, a member of her family, a relative, or a person in her presence at the time. A threat to do damage to property will not suffice-with the exception of a threat to destroy the victim's dwelling house.

The Supreme Court has held that, under the Eighth Amendment, the death penalty may not be imposed for felony murder where the defendant, as an accomplice, did not take or attempt or intend to take life, or intend that lethal force be employed. Voluntary intoxication is not a defense to first degree murder that is committed due to a reckless disregard for an unjustifiably high risk to human life.

In the case of a confession by a co-D that implicates the D: Supreme Court has held that instructing the jury to consider the confession only as going to the guilt of the confessing defendant is inadequate to avoid Confrontation Clause problems; the risk that the jury will not follow the limiting instructions is too great in this context.

The use of a thermal imager to take photos of the interior of a home most likely constitutes a search. SCOTUS has held that there's a strong expectation of privacy in one's home, so obtaining info about the interior of a home through sense-enhancing tech that couldn't otherwise have been obtained without a physical intrusion constitutes a violation of the 4th Amendment, absent a warrant. In contrast, SCOTUS has held that one doesn't have an expectation of privacy in the smell of one's auto. Thus, a dog sniff of a car during a traffic stop does not constitute a search or implicate the Fourth Amendment, as long as the police lawfully stopped the car and the stop does not extend beyond the time necessary to issue a ticket and conduct ordinary inquiries. A warrantless search of a garbage can placed on a curb for collection also does not constitute a violation of the Fourth Amendment. Under the Supreme Court's "open field

Instances where SCOTUS has said a warrantless drug test is valid: 1. The Supreme Court has found a special interest justifying warrantless drug testing of public school students participating in extracurricular activities-the need being to assure the safety of students. 2. The Court has also found a special interest for warrantless drug testing of railroad employees involved in accidents-the strong interest of assuring public safety. 3. Finally, the Court has found a special interest justifying the warrantless drug testing of drug interdiction agents-their ready access to drugs.

D's conduct must be both the cause in fact and the proximate cause of victim's death. Cause in fact: D isn't the cause in fact if the result wouldn't have occurred but for their conduct. Proximate causation - D is the proximate cause if the result is a natural and probable consequence of the conduct, even if D didn't anticipate the precise manner in which the result occurred. Superseding factors can break the chain of proximate causation An act that hastens an inevitable result is still the legal cause of that result. Also, simultaneous acts of two or more persons may be independently sufficient causes of a single result. A victim's preexisting weakness or fragility, even if unforeseeable, doesn't break the chain of causation

Limitations regarding causation: Year and a day rule - traditionally, for D to be liable for homicide, the death must occur within one year and a day from the infliction of the harm. Most states have abolished this rule. Intervening acts - generally, an intervening act shields D from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by D. note that a third party's negligent medical care and the victim's refusal of med treatment for religious reasons are both foreseeable, so D would be liable.

In deciding whether to give a jury instruction, judge's job is NOT to weigh the evidence - his job is only to determine whether there is evidence that can reasonably support a particular jury finding on the issue. Prosecution has a constitutional obligation to turn over material exculpatory evidence, which includes evidence only used to impeach a critical government witness. Fifth amendment privilege against self-incrimination only protects testimonial or communicative evidence, not real or physical evidence.

Involuntary intoxication, if established, means that the D is treated as though they were insane. To not be guilty, will have to meet the reqs of the j's insanity statute/test. If a victim intends to convey only possession of the property to the defendant, the offense is larceny by trick. However, if the victim intends to convey title, the offense is false pretenses. Here, the banker intended to convey possession of the money to the roommate so that he could give the money to the student/beneficiary. The banker did not intend to convey title to the roommate. Because the roommate did not obtain title by means of his misrepresentation but simply obtained possession, the offense of false pretenses was not committed.

I. Burglary 1. Common law burglary consists of: a. A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation; if D had the resident's consent to enter, the entry is not a breaking) b. And entry (placing any portion of the body or any instrument used to commit the crime into the structure) c. Of a dwelling (a structure used with regularity for sleeping purposes, even if used for other purposes such as conducting a business) d. Of another (ownership is irrelevant; occupancy by someone other than D is all that is required) e. At nighttime f. With the intent to commit a felony in the structure (felony need not be carried out to constitute burglary) 2. Modern statutes often eliminate many of the "technicalities" of common law burglary, including the requirements of a breaking, that the structure be a dwelling, that the act occur at nighttime, and that the intent be to commit a felony (

J. Arson 1. Arson at common law consists of: a. The malicious (intentional or with reckless disregard of an obvious risk) b. Burning (requiring some damage to the structure caused by fire) c. Of the dwelling d. Of another 2. MPC, and most states, have expanded the definition of arson to include damage caused by explosion, and expanded the types of property that may be destroyed to include commercial structures, cars, trains, etc. 3. Although common law arson requires a burning of a dwelling, MBE questions often assume, without specifically stating, that arson extends to other structures. 4. No specific intent is required. Acting with a reckless disregard of an obvious risk that the structure would burn will suffice for arson culpability. 5. Destruction of the structure, or even significant damage, isn't required to complete the arson. Mere blackening by smoke or discoloration by heat (scorching) is not sufficient, but mere charring is sufficient. 6. Related Offense—Houseburning a. At common law, the building had to be the house of another; one couldn't commit arson on one's own house. The common law misdemeanor of houseburning consisted of: (1) a malicious; (2) burning; (3) of one's own dwelling; (4) if the structure is situated either in a city or town, or so near to other houses as to create a danger to them.

Robbery is basically an aggravated form of larceny in which the taking is accomplished by force or threats of force. The force must be used either to gain possession of the property or to retain possession immediately after such possession has been accomplished, but the defendant need not have intended to use force to complete the crime

Jury selection is a critical stage of trial at which the defendant is entitled to be present.

Extortion:

Larceny + threat of future harm

If the defendant intended to restore the exact property taken, it is NOT embezzlement. But if he intended to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money-of identical value-that he intended to return. In embezzlement, the misappropriation of the property occurs while the defendant has lawful, NOT wrongful, possession of it. On the other hand, in larceny, it occurs generally at the time the defendant obtains wrongful possession of the property. In embezzlement, since the defendant is already in possession of the property, there is NO need that he take and carry away the property. Rather, embezzlement requires a fraudulent conversion of the property. The conversion need NOT result in direct personal gain to the defendant. The conversion required by embezzlement requires only that the defendant deal with the property in a manner in

Larceny is the taking and carrying away of the tangible personal property of another by trespass with the intent to permanently (or for an unreasonable time) deprive the owner (or person in possession) of his interest in the property. Importantly, this intent generally must exist at the time of taking (save for the continuing trespass doctrine). The taking must be without the consent of the person in possession of the property. If such consent is induced by a misrepresentation of a past or existing fact, the consent is not valid. The resulting larceny is called larceny by trick.

Felony murder rule: any death caused in the commission of, or in an attempt to commit, a felony is murder. Under common law, what felonies will give rise to felony murder: BARRK: burglary, arson, rape, robbery, kidnapping Proximate cause theory: felon liable for deaths of innocent victims caused by someone other than the co-felon. Agency theory: felon liable only if killing committed by felon or agent

Limits on felony murder liability: 1. D must've committed or attempted to commit underlying felony 2. Felony must be distinct from killing itself 3. Death must've been foreseeable 4. Death must've been caused before immediate flight from felony ended

If the D's 5th Amendment right to counsel has been violated, that evidence is inadmissible at trial. However, the D's statements may still be used to impeach his testimony at trial. The prosecutor cannot mention the D's silence after receiving his 5th Amendment warnings. The Harmless error test applies.

Public safety exception—there's no violation of D's 5th Amendment rights if the police were questioning the D, without giving him his Miranda warnings, if their questioning was reasonably prompted by a concern for public safety

If a detainee invokes his Miranda right to counsel, the police may NOT question him about an unrelated crime. This is different from the rule for when the detainee merely invokes his right to remain silent, in which instance the police may question about a different crime if they scrupulously honor the request. It is not true that all doubts about a request for counsel are construed in favor of the detainee. A request for counsel must be unambiguous and specific. Neither is it true that a detainee cannot waive the right to counsel in the absence of counsel. A waiver will be valid if it was knowing, voluntary, and intelligent.

Note that Miranda warnings do not need to be given verbatim, as long as the substance of the warning is there.

When can police officers and private individuals use DF/NDF when attempting to make an arrest?

Police Officers 1) Can use nondeadly force if reasonably necessary to effectuate an arrest. 2) Deadly force is reasonable only if necessary to prevent a felon's escape and the officer reasonably believes the felon threatens death or serious bodily harm. 3) A bystander summoned by an officer to assist them in making an arrest has the same authority to use force as the officer, and bystander's good faith assistance is justified even if it turns out the officer was exceeding their authority. Private Persons - A private person has the same right to arrest as a police officer with the following exceptions: 1) Private person can use nondeadly force to make an arrest if a crime was in fact committed and the private person has reasonable grounds to believe the person arrested has in fact committed the crime. 2) A private person may use deadly force only if the person harmed was actually guilty of the offense for which the arrest was made.

Obtaining money by lying would be false pretenses. Merely being a passenger in someone else's car does not create a reasonable expectation of privacy with regard to a search of the car. Something more is needed to have standing to challenge the search, such as if the roommate owned the car (not indicated by the facts).

Police have the authority to briefly detain a person for investigative purposes even if they lack probable cause to arrest. To make such a stop, police must have a reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime. When the source of suspicion of criminal activity is an informant's tip, the tip must be accompanied by indicia of reliability sufficient to make the officer's stop reasonable.

To be convicted as an accomplice, person must have: a. Intent to assist the principal in the commission of a crime b. The intent that the principal commit the substantive offense. If the substantive offense has recklessness or negligence as its mens rea, most js would hold that the "intent" element is satisfied if the accomplice: 1) Intended to facilitate the commission of the crime, and 2) Acted with recklessness or negligence In the absence of a statute, most cts would hold that mere knowledge a crime will result isn't enough for accomplice liability, at lease where the aid given is in the form of the sale or ordinary goods at ordinary prices (ex, gas station isn't liable for knowingly selling gas to an arsonist). However, procuring an illegal item or selling at a higher price bc of the buyer's purpose may constitute a sufficient "stake in the venture" to constitute intent (ex, charging an arsonist $300 for a gall

Scope of liability for accomplice: An accomplice is responsible for crimes they did or counseled, AND any crimes committed in the course of committing the crime contemplated, to the same extent as the principal, so long as the other crimes were probable or foreseeable

Seizure vs arrest:

Seizure: reasonable person would not feel free to decline officer's requests or terminate encounter. Arrest: police take person into custody against their will for prosecution or interrogation. Any arrest must be based on probable cause. Probable cause is based on the totality of circumstances. If there's an arrest that's unlawful, but later on they do get probable cause, that bad arrest won't have any effect on the validity of later evidence

Specific situations regarding causation:

Stabbing and killing someone with terminal cancer is likely to be considered homicide. A defendant may be guilty of killing a victim who was going to die anyhow. Actual and proximate causation isn't broken if the D ends the victim's life prematurely, even by a short time. If a D stabs a victim while another person shoots the victim, the D is likely to be found guilty of homicide. Simultaneous acts by multiple persons may be considered independent, sufficient causes of a single result. Thus, multiple persons may be convicted of homicide even though there was only one death. A defendant who stabs a victim with hemophilia who bleeds to death is likely to be found guilty of homicide. Any preexisting conditions that make a person more susceptible to death are essentially disregarded. The defendant "takes the victim as he finds him."

It is possible to commit larceny of your own property if another person, such as a bailee, has a superior right to possession of the property at that time.

Terry stops: police can briefly detain person for investigatory purposes if reasonable suspicion of criminal activity that's supported by articulable facts. Police must act in a diligent and reasonable manner in confirming or dispelling suspicions.

If it appears to the judge that the defendant might be incompetent, the judge has a constitutional obligation to conduct further inquiry and determine whether in fact the defendant is incompetent. If the defendant is tried and convicted but it later appears that he was incompetent to stand trial, the judge's failure to raise the issue or to request a determination of competency does not constitute a waiver of the competency issue.

The Double Jeopardy Clause prohibits retrying a defendant whose conviction has been reversed on appeal for any offense more serious than that for which she was convicted at the first trial. This right is violated by retrial for a more serious offense, even if at the second trial the defendant is only convicted of an offense no more serious than that for which she was convicted at the first trial.

A defense counsel's decisions can only be defended as strategic when they're based on a reasonably complete investigation.

The Sixth Amendment guarantees the right to a jury trial. When a defendant elects a jury trial, he has a right to have the jury determine all the facts. If the substantive law provides that a sentence may be enhanced beyond the statutory maximum only upon a finding of certain facts (other than prior convictions), those facts must be found to exist by the jury. A determination of their existence by a judge is a denial of the Sixth Amendment right to a jury trial.

Burglary:

The breaking and entering of the dwelling house of another at night with the intent to commit a felony therein.

The D has a 6th Amendment right to counsel. A denial of this right at trial requires reversal. A denial of this right at nontrial proceedings requires reversal unless harmless. If the D waives this right, the waiver is valid if it was knowing, intelligent, and the D was competent. The waiver is deemed "voluntary and intelligent" if the D has a rational and factual understanding of the proceeding.

The burden of proof in a criminal case is beyond a reasonable doubt. Any mandatory presumption that shifts this burden of proof to the defendant violates Fourteenth Amendment due process.

Larceny:

The carrying and taking away of the property of another by trespass with the intent to permanently deprive the owner of the property 1) Taking; 2) And carrying away; 3) Of tangible personal property 4) Of another with possession 5) By trespass; 6) With intent to permanently deprive that person of her interest in the property

Possession as an "act:" Statutes that penalize the possession of contraband generally require only the D have control of the item for a long enough period to have an opportunity to terminate the possession. Possession doesn't need to be exclusive to one person, and possession also may be "constructive," meaning that actual physical control doesn't need to be proven when the contraband is located in an area within D's "dominion and control." Absent a state of mind requirement in the statute, D must be aware of their possession of the contraband, but they need not be aware of its illegality. However, many statutes add a state of mind element (ex, "knowingly") to possession crimes. Under such statutes, D ordinarily must know the id or nature of the item. But D may not consciously avoid learning the true nature of the item possessed; knowledge may be inferred from a combination of suspicion and indifference to the tru

The different types of mental states that may constitute the mens rea requirement: specific intent, malice, general intent, strict liability. Specific intent: Specific intent crimes require a D commits an act with a specific intent or objective. Specific intent can't be imputed from the mere doing of the act, but the manner in which crime was done may give circumstantial evidence eof intent.

Embezzlement:

The fraudulent conversion of property by a party in rightful possession

Arson:

The malicious burning of dwelling of another (under common law). No specific intent is required, bc this is a malice crime. Have to act with reckless regard or indifference. No available for defense of voluntary intoxication or unreasonable mistake of fact. Damage required for arson: Scorching (blackening by smoke or discoloration by heat) isn't sufficient. Charring is sufficient

The remedy for a violation of the constitutional right to a speedy trial is dismissal with prejudice. A defendant is NOT entitled to speedy trial relief for the period between the dismissal of charges and later refiling.

The right to be free of double jeopardy derives from the Fifth Amendment and has been incorporated into the Fourteenth Amendment. Under this right, once jeopardy attaches, the defendant may not be retried for the same offense.

Automobile exception to warrants: applies only when the police have probable cause to believe they'll find contraband or evidence of a crime. Police can search anywhere in the car where they might find the thing they have probable cause to search for.

There are six main warrant exceptions: automobile search, incident to a lawful arrest, plain view, consent, stop and frisk, hot pursuit and fleeting evidence and emergency aid. Involuntary confession (torture) violates 5th amendment right to no self-incrimination and 14th DPC.

Double jeopardy prohibits trials or convictions of a lesser included offense if the person has been put in jeopardy for the greater offense. Ex: a D convicted of felony murder based on an armed robbery can't be convicted later of the armed robbery, bc it's a lesser included offense of the felony murder. However, ct can impose multiple punishments at a single trial where the punishments are for two or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even though the offenses arise from the same transaction and constitute the same crime D.

There are two essential elements of a crime - these elements must be concurrent: 1) physical act, 2) a requisite mental state A physical act is a bodily movements. To have the actus reus component, the D must have either performed a voluntary physical act or have failed to act when they had a legal duty to do so. Bodily movements that don't qualify for criminal liability: 1. Conduct that's not of a person's own volition 2. A reflexive or convulsive act 3. An act performed while unconscious or asleep (Exception: a person knew they were likely to become unconscious and do the act)

Mandatory school search exception to the warrant requirement:

These are valid if they are reasonable, and: 1) If offers a moderate chance of finding evidence of wrongdoing 2) It is implemented through means reasonably related to objectives of the search 3) The search is not excessively intrusive

Strict liability offenses:

These offenses don't require awareness of all the factors constituting the crime - D can be found guilty just by committing the act. Common strict liability offenses: selling alcohol to minors, statutory rape. Defenses that negate state of mind, like mistake of fact, aren't available. If the crime is in the administrative, regulatory, or morality area and there are no adverbs in the statute such as knowingly, willfully, or intentionally, the statute is meant to be a no intent crime of strict liability. In some js, bigamy is also a strict liability crime.

General Intent crimes:

This is our Catch-all category. All crimes that aren't malice or specific intent are general intent crimes unless they qualify for strict liability. General intent = D is aware that they are acting in the proscribed way and that there's a high likelihood that the required circumstances exist. Jury can infer the required general intent merely from the doing of the act

Theft:

This isn't a traditional common law offense, but many modern statutes and the M.P.C. consolidate larceny, embezzlement, false pretenses, and receipt of stolen goods under the single heading of "theft"

The Sixth Amendment right to counsel:

This right applies at all critical stages of the prosecution. It attaches when adversary judicial proceedings are begun. This right is offense specific - that is, it pertains to only one charge and defendant must ask again if later charged with separate, unrelated crime. This right is waivable, but the waiver must be knowing and voluntary. If D was denied his right at trial, automatic reversal (harmless error rule applies as to nontrial proceedings). Note, though, that statement made in violation of Sixth Amendment may not be used to prove guilt but may still be used for impeachment

When executing a warrant, the police do not need to always knock and announce their presence before entering a home. Usually, the police must knock and announce their authority and purpose and await admittance for a reasonable time or be refused admittance before using force to enter. However, no announcement needs to be made if the police reasonably suspect that knocking and announcing would be dangerous or futile or inhibit the investigation. It is not true that any items seized must be specified in the warrant. When executing a warrant, the police may seize any contraband or fruits or instrumentalities of a crime that they discover, regardless of whether they are specified in the warrant.

To be reasonable under the Fourth Amendment, most searches must be pursuant to a warrant. The warrant must describe with reasonable precision the place to be searched and the items to be seized. A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant. In Ybarra v. Illinois (1979), SCOTUS held that "each patron of the tavern had an individual right to be free of unreasonable searches, and presence at a location subject to search does not negate the requirement of probable cause to search the person present." If a search is unconstitutional, it does not matter that it was authorized by statute. To the extent that the statute authorizes a search in violation of the Fourth Amendment, it is unconstitutional.

During voir dire, parties may question potential jurors about racial prejudice if race is inextricably bound up in the case. Likewise, can question them about their opposition to the death penalty if death penalty is at stake, and the juror may be excluded if their view would prevent or substantially impair a performance of their duty.

To convict a defendant of felony murder, the prosecution must prove, beyond a reasonable doubt, that the defendant committed or attempted to commit a felony (i.e., he is factually guilty of the felony). However, the defendant need not actually be convicted of the underlying felony if the statute of limitations for the felony has expired. The killing must take place while the felony is being committed. When the defendant reaches "a place of temporary safety," the felony is deemed terminated. The felony must be independent of the killing (e.g., the felony of manslaughter cannot be the underlying felony for felony murder). Finally, most states require that the death must be a foreseeable result of the commission of the felony.

Due process of law requires a state to prove each element of the charged crime beyond a reasonable doubt. However, as to affirmative defenses to the criminal charge, the state CAN place the burden of proof on the D by either preponderance of the evidence or by clearn and convincing evidence.

To have a successful withdrawal defense, the defendant must have informed all of his co-conspirators that he was withdrawing.

Doctrine of transferred intent:

Transferred intent: For D to be convicted, D must've intended harm to a different victim or object. Doctrine of transferred intent applies to battery, homicide, and arson. Note that in this instance with transferred intent, you can be charged with both the underlying crime, and the attempt, BECAUSE there are two victims.

The general rule is that one may use deadly force in self-defense even if the use of force could be avoided by retreating safely. This rule, however, does not apply to one who is the initial aggressor.

Under the Blockburger rule, two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes. Here, however, the illegal drug sale charge is a lesser included offense of the sale to juveniles offense, and attachment of jeopardy for a lesser included offense generally bars retrial for the greater offense.

Merger Under the common law, if a person engaged in conduct constituting both a felony and a misdemeanor, they could be convicted only of the felony - that is, the misdemeanor merged into the felony. However, this has changed under modern law.

Under the modern law, generally there's no merger in US law. However, a person who solicits another to commit a crime may not be convicted of both the solicitation and the completed crime (if the person solicited does complete it). Similarly, a person who completes a crime after attempting may not be convicted of both the attempt and the completed crime. However, conspiracy does NOT merge with the completed offense. So, for ex, a person can be convicted of both robbery and conspiracy to commit robbery. Importantly, under the MPC, a D may not be convicted of more than one inchoate crime (attempt, conspiracy, solicitation) when their conduct was designed to culminate in the commission of the same offense. Ex, a D who conspired to commit burglary, and then actually attempted burglary, can't be convicted of both conspiracy and attempt.

Prior to custodial interrogation, the person being questioned must be informed that he has the right to remain silent, that anything he says can be used against him in court, that he has the right to the presence of an attorney, and that, if he cannot afford an attorney, one will be appointed for him if he so desires. The interrogation must take place in a custodial setting. The test to determine whether a person is in custody is an objective test; the subjective beliefs of the interrogator or the accused are not determinative. Essentially, if a reasonable person under the circumstances would feel that he was free to terminate the interrogation and leave, he is not in custody. A confession obtained in violation of Miranda, but otherwise voluntary, can be used for the limited purpose of impeaching a defendant who testifies at trial. In contrast, an involuntary confession cannot be used to impeach.

Use of a deadly weapon in the commission of a battery elevates the crime to aggravated battery. Whether a defendant asserted his right is one factor in determining whether the defendant's right to a speedy trial was violated. The determination is made by an evaluation of the totality of the circumstances, and the following factors should be considered: (i) length of the delay, (ii) reason for the delay, (iii) whether the defendant asserted his right, and (iv) prejudice to the defendant. Delays caused by counsel assigned by the court to the D should ordinarily be attributed to the defendant and NOT to the state.

I. Wiretapping and eavesdropping 1. Wiretapping (and other forms of electronic surveillance violating a reasonable expectation of privacy) constitutes a search under the 4th amendment. 2. A valid warrant authorizing a wiretap may be issued if: a. there is showing of probable cause, b. the suspects involved in the conversations to be overheard are named, c. the warrant describes with particularity the conversations to be overheard, d. the wiretap is limited to a short period of time, e. The wiretap is terminated when the desired info has been obtained, and f. Return is made to the court, showing what conversations have been intercepted. 3. Exceptions - a speaker assumes the risk that the person to whom they are talking either consents to the gov monitoring the conversation or is a wired informer. A speaker has no 4th Amendment claim if they make no attempt to keep a conversation private. 4. Pen Registers = devic

V. Confessions A. The admissibility of a D's confession involves analysis under the 4th, 5th, 6th, and 14th Amendments B. 14th amendment - voluntariness 1. For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances. 2. A statement will be involuntary only if there is some official compulsion (ex, a confession is not involuntary merely because it is a product of mental illness). 3. If an involuntary confession is admitted into evidence, the harmless error test applies; this means the conviction need not be overturned if there's other overwhelming evidence of guilt. C. Sixth amendment right to counsel 1. 6th Amendment guarantees the right to the assistance of counsel in all criminal proceedings, which include all critical stages of a prosecution after judicial proceedings have begun (ex, formal charges have been filed). 2. It prohibits police from deliberately eliciting an incriminating statement from a D outside the presence of counsel after D's has been charged unless D has waived that right 3. Note that there can be no violation of the 6th Amendment right to counsel before formal proceedings have begun. a. A D who's arrested but not yet charged has no 6th Amendment right to counsel but does have a 5th Amendment right to counsel under Miranda.

5. Defenses a. Abandonment 1) Common law - not a defense. If D had the intent and committed an overt act, the defendant is guilty of attempt despite the fact that they changed their mind and abandoned the plan before the intended crime was completed. 2) MPT - a fully voluntary and complete abandonment is a defense. b. Legal Impossibility 1) If D, having completed all acts that they had intended, would have committed no crime, they cannot be guilty of an attempt c. Factual Impossibility - not a defense. 6. A D charged only with a completed crime may be found guilty of the completed crime OR an attempt, but a D charged only with attempt can NOT be convicted of the completed crime.

V. Homicide A. Common law murder 1. Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it, and it was committed with one of the following states of mind: a. Intent to kill b. Intent to inflict great bodily injury c. Reckless indifference to an unjustifiably high risk to human life ("abandoned and malignant heart" or "depraved heart"); or d. Intent to commit a felony (felony murder) e. NOTE: Intentional use of a deadly weapon authorizes a permissive inference of intent to kill. 2. Mercy killing - If a D intends to kill, even as an act of love, they are guilty of murder.

G. The Harmless Error Test 1. If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless gov can show beyond reasonable doubt the error was harmless. a. The conviction will be upheld if it would've resulted despite the improper evidence. 2. In a habeas proceeding where the petitioner claims constitutional error, he should be released if he can show the error had a substantial and injurious effect or influence in determining the jury's verdict. If judge is in grave doubt as to the harm, the petition must be granted. 3. Note: harmless error standard never applies to the denial of the right to counsel at trial; this error is never harmless. H. Enforcing the exclusionary rule 1. A D is entitled to have the admissibility of evidence or a confession decided as a matter of law by a judge out of the hearing of the jury. Gov bears the burden to est the admissibility by a preponderance of

VII. Pretrial procedures A. Preliminary hearing to determine probably cause to detain 2. D's liberty can be restricted only on a finding of probable cause. If PC's already been est (ex, the arrest was pursuant to a warrant or a grand jury indictment), no preliminary hearing to determine PC is needed. 3. If PC hasn't already been determined and there are significant constraints on an arrestee's liberty (ex, jail or bail), a preliminary hearing to determine PC must be held within a reasonable time (ex, 48 hours). The hearing is an informal, non-adversarial proceeding. There's no real remedy for a denial of the hearing, but evidence discovered as a result of the unlawful detention can be excluded under the exclusionary rule. B. Pretrial detention - bail 1. Most state consts create a right to be released on bail unless the charge is a capital one. 2. Generally, bail can be set no higher than is necessary to assure D's appearance at trial. 3. Refusal to grant bail or the setting of excessive bail may be appealed immediately; however, SCOTUS has upheld portions of the federal Bail Reform Act that allow arrestees to be held without bail if they pose a danger or would fail to appear at trial. 4. NOTE: since SCOTUS has never held the 8th Amendment provision for bail applies to the states, the 8th Amendment isn't a strong argument against a state's denial of bail. But if, a state provides for bail, arbitrary denials of bail violate due process—detainees must have the opportunity to prove eligibility. 5. Standards for commitment and subsequent release of Ds incompetent to stand trial must be essentially identical with those for commitment of persons not charged with a crime; otherwise there is a denial of equal protection.

D. Rape 1. Rape = gender-neutral sexual assault. Penetration without consent. 2. Under the traditional rule and the MPC, a husband cannot rape his wife, but most states today either reject this rule entirely or where the parties are estranged or separated. 4. Note that consent due to other types of fraud (ex, perpetrator persuading the victim that the perpetrator is the victim's spouse or that they will get married) is effective. 5. Statutory rape = carnal knowledge of a person under the age of consent. a. Statutory rape is a strict liability crime, and, therefore, it's not necessary to show lack of consent.

VII. Property offenses A. Larceny 1) Property must be taken from the custody or possession of another. If D has possession of the property at the time of the taking, the crime isn't larceny, but may be embezzlement 2) Custody vs. possession a) Possession involves a greater scope of authority to deal with the property than does custody. Generally, D has possession if they were given discretionary authority over the property and has custody if they were given only limited authority over the property. Ordinarily, low level employees have only custody of an employer's property and so are guilty of larceny for taking it. 3) Bailee and "Breaking Bulk" a) Generally, a bailee has possession and thus may be guilty of embezzlement if they take the property. However, if the bailee opens closed containers in which the property has been placed by the bailor (that is, the bailee "breaks bulk"), the possession is regarded, by use of a fiction, as returning to the bailor, and thus the bailee may then be guilty of larceny if they take that property. e. By trespass (without consent or by consent induced by fraud) f. With intent to permanently deprive that person of their interest in the property 1) An intent to create a substantial risk of loss, or an intent to sell or pledge the goods to the owner, is sufficient for larceny. 2) If D believes the property they are taking is theirs or where they intend only to borrow the property or to keep it as repayment of a debt, there is no larceny. 3) There may be larceny if D intends to pay for the goods (if the goods were not for sale) or intends to collect a reward from the owner (if there is no intent to return the goods absent a reward).

Larceny by trick:

Victim intended to give thief mere possession

The "mistake" defense:

We can divide this into mistakes of fact and mistakes of law. For a mistake of fact to serve as a viable defense, it must negate the crime's requisite state of mind. For malice and general intent crimes, the mistake must be reasonable. But for specific intent crimes, the mistake can be reasonable or unreasonable. If the crime involved involves strict liability, mistake is no defense. Mistake of law is generally not a defense to any crime.

The fifth Amendment provides a right against self-incrimination that is applicable to the states through the 14th amendment. This right is only available to natural persons (not Corporations or Partnerships). It applies both to witnesses and the D himself. Must be invoked question by question if the witness is on the stand. This right only applies to testimony, NOT to physical evidence or documents. As a result of this right, the D can refuse to take the stand. If the D so refuses, then the prosecutor cannot comment on the D's silence after receiving Miranda warnings except in the narrow instance when the D has claimed that they were not given an opportunity to explain their side of things. The harmless error test applies to violations of this right - a violation doesn't automatically require retrial.

When police officers have a valid arrest warrant, they may enter a home—even if the occupants do not voluntarily admit the officers—to execute the warrant. Once inside, under the plain view exception to the search warrant requirement, the police may seize any contraband or evidence in plain view of a place they have a right to be to execute the warrant. However, once the defendant is arrested, officers have no right to proceed to search the home. Incident to the arrest, the officers could search the defendant's wingspan (the area he could reach into as the police took him out of the house). They could also make a limited sweep to look for others who might be hiding and present a danger to the officers if the officers had a reason to believe such others might be present.

When determining whether a confession was validly obtained, look to see if 1) due process was violated or 2) the D's 6th amendment right to counsel was violated.

Whether the D's due process rights were violated is judged by a totality of the circumstances. Government compulsion makes confession involuntary. However, the harmless error test applies if involuntary confession erroneously admitted into evidence.

XI. Constitutional Problems on Appeal A. There is no federal constitutional right to an appeal. B. Equal protection and right to counsel on appeal 1. If there's an option of post-conviction review, conditions that review less accessible to the poor than to the rich violate equal protection. Thus, indigents must be given counsel at state expense during a first appeal granted to all as a matter of right for: a. During a first appeal granted to all b. For appeals of guilty pleas and pleas of nolo contendere. 2. In a j where the highest appellate ct has discretionary review, an indigent D need not be provided with counsel during the second, discretionary appeal. C. Retroactivity 1. If SCOTUS announces a new rule of criminal procedure in a case on direct review, the rule must be applied to all other cases on direct review.

XII. Collateral attack upon conviction A. Availability of collateral attack 1. After appeal is no longer available or has proven B. Habeas Corpus Proceeding 1. An indigent has no right to appointed counsel at a habeas corpus proceeding. Petitioner has the burden of proof by preponderance of evidence to show an unlawful detention. The state may appeal the grant of a writ of habeas corpus. A D generally may bring a habeas petition only if he's in custody. Generally, this includes anyone who hasn't fully served the sentence about which they wish to complain.

2. Death penalty a. For Murder 1) Death penalty only imposed under a statutory scheme that gives the jury reasonable discretion, full info concerning Ds, and guidance in making the decision. The statute can't be vague, and it must allow the sentencing body to consider all mitigating evidence 2) If the death sentence is partly based on the aggravating factor of the D's prior conviction, the sentence must be reversed if the prior conviction is invalidated. 3) A death sentence that's been affected by a vague or otherwise unconstitutional factor can still be upheld, but only if all aggravating and mitigating factors involved are reweighed and death is still found to be appropriate. b. For Rape or Felony Murder 1) 8th Amendment prohibits the death penalty for the crime of raping an adult woman or a child if it wasn't intended to result in, nor did result in, death 2) Rationale: The penalty is disproportionate to the

XIV. Double jeopardy A. When double jeopardy attaches 1. Under 5th Amendment, a person can't be retried for the same offense once jeopardy has attached. Jeopardy attaches in a jury trial at the empaneling and swearing of the jury. 2. In bench trials, jeopardy attaches when the first witness is sworn. 3. Commencement of a juvenile proceeding bars a subsequent criminal trial for the same offense 4. Jeopardy generally does not attach in civil proceedings other than juvenile proceedings.

D. Separate sovereigns 1. The constitutional prohibition against double jeopardy doesn't apply to trials by separate sovereigns. A person may be tried for the same conduct by both the state and fed govs, or by two states, but NOT by a state and its municipalities. 2. Double Jeopardy also doesn't bar a single sovereign from successive prosecutions of distinct offenses arising from the same conduct. So a D can be prosecuted and convicted of an offense by one fed tribunal, and be prosecuted and convicted later by another fed tribunal for a different offense arising from his initial act. 3. The rule is simple: Separate sovereigns can try a D for the same offense. On the other hand, remember that municipalities are considered part of the state, and so both a state and its municipality can't validly try a defendant for the same offense. E. Appeals by prosecution 1. Even after jeopardy has attached, the prosecution may ap

XV. Privilege against compelled self-incrimination A. Who may assert this privilege 1. 5th Amendment privilege against self-incrimination can be asserted by any person in any type of case. Only natural persons may assert the privilege, not corps or partnerships. 2. The privilege is personal and so may be asserted only if the answer to a question might tend to incriminate a witness B. When this privilege may be waived 1. A person may refuse to answer a question whenever their response might furnish a link in the chain of evidence needed to prosecute them. 2. In civil cases, this privilege must be claimed in order for it to not be waived in a later criminal prosecution. Aka, if witness responds to questions instead of claiming the privilege during a civil proceeding, he can't later bar that evidence from a criminal case on compelled self-incrimination grounds. C. The method for invoking privilege 1. A criminal D has a right not to take the witness stand at trial and not to be asked to do so. In any other situation, the privilege doesn't permit a person to avoid being sworn as a witness or being asked questions. Rather, the person must listen to the questions and specifically invoke the privilege rather than answer the questions. a. Note: Merely being required to give your name after a Terry stop doesn't violate the 5th Amendment bc that disclosure generally poses no danger of incrimination.

Three inchoate crimes:

attempt, conspiracy, solicitation

F. Elimination of privilege 1. Grant of Immunity a. A witness may be compelled to answer questions if granted adequate immunity from prosecution. b. "Use and Derivative Use" Immunity Sufficient 1) "Use and derivative use" immunity guarantees that the witness's testimony and evidence located by means of the testimony won't be used against him. However, he may still be prosecuted if the prosecutor shows the evidence to be used against him came from a source independent of the immunized testimony.

c. Immunized Testimony Involuntary 1) Testimony obtained by a promise of immunity is coerced and therefore involuntary. Thus, immunized testimony may not be used for impeachment of a D's testimony at trial. However, any immunized statements can be used in a trial for perjury. d. Use of Testimony by Another Sovereign Prohibited 1) Federal prosecutors may not use evidence obtained as a result of a state grant of immunity, and vice versa. 2. A person has no privilege against compelled self-incrimination if there is no possibility of incrimination (ex, statute of limitations has run). 3. Immunity extends only to the offenses to which the question relates and doesn't protect against perjury committed during the immunized testimony. G. Waiver of privilege - A criminal D, by taking the witness stand, waives the privilege to the extent necessary to subject them to any cross-examination. A witness waives the privilege only if they disclose incriminating info.

5. The MPC analysis of fault - the MPC eliminates common law distinctions between general and specific intent and adopts these categories of intent: a. Purposely, knowingly, or recklessly - A subjective standard is used for crimes that require this mental state b. Purposely = a person's conscious object is to engage in a certain conduct or cause a certain result c. Knowingly = person is aware that their conduct is of a particular nature or that certain circumstances exist 1) Person is deemed aware of these circumstances when they're aware of a high probability that they exist and deliberately avoid learning the truth 2) Person acts knowingly with respect to the result of their conduct when they know that their conduct will necessarily, or very likely, cause a particular result

d. Recklessly = person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and this disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise. 1) Uses both an objective and subjective test e. Negligently 1) Person acts negligently when they fail to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care 2) An objective standard is used to determine negligence. 6. Vicarious liability offenses = a person without personal fault can be held liable for the criminal conduct of another (usually an employee)

8. Right to Impartial Jury a. The standard for determining when a prospective juror should be excluded for cause is whether the juror's views would prevent or substantially impair the performance of their duties in accordance with their instructions and oath. b. D's entitled to questioning on voir dire specifically directed to racial prejudice whenever race is bound up in the case, or D's accused of an interracial capital crime. c. In capital punishment cases, a state can't automatically exclude for cause all those who express a doubt or scruple about the death penalty; it must be determined whether the juror's views would prevent or substantially impair performance of their duties in accor-dance with their instructions and oath. 1) A death sentence imposed by a jury from which a juror was improperly excluded is subject to automatic reversal. d. If a jury is to decide if a D is sentenced to death, on voir dire t

g. If substantive law provides that a sentence may be increased beyond the statutory maximum for a crime if additional facts (other than prior conviction) are proved, proof of the facts must be submitted to the jury and proved beyond reasonable doubt; the D's right to jury trial is violated if the judge makes the determination. 1) The same general rule applies to setting the amount due on a fine. If the amount is based on facts, there is a right to have a jury find those facts. 2) The same rule also applies to sentencing enhancements after guilty pleas. In deciding whether to overturn a sentence for failure to submit a sentencing factor to the jury, the harmless error test is applied. 3) Distinguish—Judge May Decide Whether Sentences Run Consecutively a) A state legislature may give to its judges (rather than the jury) the power to decide whether sentences for multiple crimes are to run consecutively or concurrently, even though the decision is based on the facts of the case.

D. Fifth amendment privilege against compelled self-incrimination 1. Miranda Warnings a. Miranda warnings are required when a suspect is in custodial interrogation. d. The failure to give the warnings violates a D's 5th Amendment right to be free from compelled self-incrimination, not their 6th Amendment right to counsel. Don't be fooled by a question that says such failure is a violation of D's 6th Amendment rights. Generally, Miranda warnings are necessary only if detainee knows he's being interrogated by a gov agent. Warnings aren't necessary when the detainee is interrogated by an informant whom D doesn't know is working for the police.

g. Miranda requirements do not apply to an uncharged witness testifying before a grand jury, even if the witness was compelled by subpoena to be there. h. Determining whether custody exists is a two-step process: 1) The first step ("freedom of movement test") requires the ct to determine whether a reasonable person under the circumstances would feel they were free to terminate the interrogation and leave. All of the circumstances surrounding the interrogation must be considered. 2) Second step: considers "whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning." a) The more a setting resembles a traditional arrest (the more constrained the suspect feels), the more likely the Ct will consider it to be custody i. Interrogation Requirement 1) "Interrogation" includes any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee. a) Miranda warnings aren't required before detainee makes spontaneous statements b) Note that routine booking questions do not constitute interrogation.

False pretenses:

obtaining title to property of another by means of representation one knows to be materially false; made with intent to defraud Victim intended to give TITLE