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427 Cards in this Set

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"Automobile" Exception
If police have prob cause to believe that fruits, instrumentalities, or evidence from a crime are contained in a vehicle, they may search the whole vehicle and any containers that might reasonably contain the item
- may tow to station and search later
- if prob cause that car it self is contraband, may seize from public place w/o warrant
May search packages belonging to passengers as well.
If the police ONLY have probable cause to search a container in a vehicle, may ONLY search the container - not the rest of the vehicle.
"Emergency Circumstances" That May Justify Warrantless Searches and Seizures
(1) Evidence likely to disappear before a warrant can be obtained.
(2) Contaminated food or drugs.
(3) Children in trouble.
(4) Burning fires.
"Knock and Announce" Rule and exception
15-20 second delay UNLESS it would be dangerous/futile/would inhibit the investigation
10 specific intent crimes
1. Solicitation
2. Attempt
3. Conspiracy
4. First degree premeditated murder
5. Assault
6. Larceny and robbery
7. Burglary
8. Forgery
9. False pretenses
10. embezzlement
2 additional defenses for specific intent crimes
1. Voluntary intoxication
2. mistake of fact (need not be reasonable)
2 trends in Supreme Court since 1970 re: guilty pleas and plea bargaining:
1. Courts won’t disturb guilty pleas after sentencing
2. Adoption of contract theory of plea bargaining: terms of plea bargain should be revealed in record at plea taking; both sides are held to that deal.
2 ways aggressor can regain the right to self-defense
1. Withdrawal - Has to run and communicate (running along not enough)
2. Sudden Escalation - if the victim of the initial aggression suddenly escalates a "minor" fight into one involving deadly force and does not give aggressor time to withdraw
3 automatic categories of standing for 4th amendment purposes
1. You OWN the premises searched
2. You LIVE on the premises searched, regardless of your ownership interest
3. You are an OVERNIGHT GUEST on the premises
3 inchoate offenses
1) Solicitation
2) Conspiracy
3) Attempt
3 ways that the 5th amendment privilege against self-incrimination can be eliminated:
1. Grant of immunity- state won’t use immunized testimony or anything derived from it to convict you (but it can prosecute you based on evidence prosecution had before the immunity grant)
2. No possibility of prosecution eg, S of L has run on underlying crime
3. Waiver - criminal def, by taking witness stand, waives 5th Amendment privilege as to all legitimate subjects of cross examination.
4 common law mental states for a crime
1. Specific Intent
2. Malice
3. General Intent
4. Strict Liability
4 common law mental states, and crimes associated with each
(1) specific intent --solicitation; conspiracy; attempt; first degree murder; Assault; Larceny; Embezzlement; False pretenses; Robbery; Burglary; Forgery
(2) malice -- murder (2nd degree); arson
(3) general intent -- all other crimes (eg, battery and rape)
(4) strict liability - statutory rape [formula for knowing if it's SL: if the crime is in administrative, regulatory, or morality area, and statute has no adverbs (knowingly, willfully, intentionally, etc), it’s an SL crime]
4 sentences to regurgitate if the death penalty comes up:
a. Any death penalty statute that does not give the defendant a chance to present mitigating facts and circs is unconstitutional.
b. There can be no automatic category for imposition of the death penalty
c. The state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional
d. Only a jury and not a judge may determine the aggravating factors justifying imposition of the death penalty.
5 circumstances in which a duty to ACT arises
1. by statute. (Eg, file a tax return)
2. by contract (Eg, lifeguard, nurse)
3. relationship btw parties (parent/child; spouses to one another)
4. ** voluntarily assuming a duty of care toward s/o else and then failing to perform it
5. Where your conduct created the peril
5th amendment protection against compelled testimony
1) Any person under oath in any proceeding may assert the privilege
(a) Witness, D, V (not corporation)
(b) Civil, criminal, congressional hearing!
2) Right not asserted is waived
(a) Must assert the first time Q is asked i.e. 1st asked in civil waived if not asserted, in later hearing including criminal.
5th amendment right to counsel: terminating interrogation
Requires D unambiguously indicates wish to speak to counsel, all Q must cease. Continued Q violates 5th amendment right to counsel. Note: Miranda requests for counsel under 5th amd right. 5th amendment right to counsel is not offense specific. 6th amendment right to counsel is offense specific atty only need be present for questioning re that attys case.
6 exceptions to the warrant requirement
1. SIA
2. Automobile exception
3. Consent
4. Plain view
5. Stop & frisk
6. Hot pursuit and evanescent evidence
A Bill of Attainder is a legislative act that
Inflicts punishment or denies a privilege without a judicial trial
A search warrant on the basis of an affidavit will be held invalid if...?
Defendant establishes all three of the following:
(1) false statement was included by affiant (police),
(2) affiant intentionally or recklessly included a false statement, and
(3) false statement was material to finding of probable cause.
A search warrant will be invalid where D establishes (3)
1. Affidavit included False Statement of officer filing
2. Affiant Intentionally or Recklessly include such statement
AND
3. False statement was Material to finding probable cause
Accessory After the Fact
Need a FELONY and a COMPLETED crime (usually a five yr. max sentence)
Actus reus
Physical act by def. physical act is a voluntary bodily movement.
Additional defenses for specific intent crimes
1. Voluntary intoxication (can be used, eg, to reduce first degree murder to murder)
2. mistake of fact
Admissibility of D’s silence
1) Unconstitutional for prosecutor to make negative comment re D’s failure to testify or Remaining silent upon Miranda warnings.
Aggravated Battery
- Deadly weapon
- Serious bodily injury
- Victim is a child, woman, or police officer
Aggravated Robbery
Robbery with a deadly weapon
Agreement of Co-conspirators
1. Need not be express
2. parties need not all know each other
Agreement requirement for conspiracy
1) Need not be express. Members of conspiracy need not know one another.
2) There must be an overt act in furtherance of the conspiracy.
3) Overt act can be committed by any one of the co-conspirators
(a) Just showing up is enough
Model Penal Code Test of Insanity
suffered from a mental disease and as a result lacked capacity to appreciate the criminality of his conduct OR conform his conduct (combination of M'Naghten and irresistible impulse tests)
If D wants to use an alibi defense
must give the prosecution a list of the witnesses, and prosecution must give the defendant a list of their rebuttal witnesses
Ambiguous statements are construed how?
In favor of defendant
Can a prosecutor make a negative comment on the defendant’s failure to testify, or on his/her remaining silent upon hearing the Miranda warning?
No -- it is unconstitutional
Can a suspect waive his Miranda rights?
Yes, but it must be a knowing, voluntary, and intelligent waiver.
Can D argue abandonment to attempt
General rule: it is never a defense
MPC: withdrawal will be a defense if 1.)Fully voluntary and 2.) complete abandonment
Can exclusion be raised as a remedy for violation of the "knock and announce" rule
No
Can you ever give back to an aggressor the defense of self-defense?
Yes, but it almost never happens. Can happen if: person in Q WITHDRAWS (run for door), then stops, turns to original victim, and COMMUNICATES withdrawal to victim.
6th Amendment Right to Counsel
- Includes all critical stages of a prosecution after formal charges filed.
- Prohibits police from deliberately eliciting an incriminating statement from D outside the presence of counsel after D has been charged unless D waives his right to counsel.
- The 6A right is offense-specific. Even though the right attached regarding one charge, the D may be questioned regarding an unrelated, uncharged offense without violating 6A (thought it might violate Miranda).
Accomplice liability – Rule
Accomplices are liable for the crime itself and all other foreseeable crimes.
Exam tip: NEVER give accomplice liability unless the person is actively aiding, abetting, or counseling the crime. Even if person seems to be going along w/ it, or doesn't call the police, this alone doesn't give rise to accomplice liability.
Appeals by Prosecution
Even after jeopardy has attached, prosecution may appeal any dismissal on D's motion that doesn't constitute an acquittal on the merits.
- Double jeopardy does not bar appeals by P if successful appeal wouldn't require a retrial.
- No bar to government appeal of a sentence pursuant to statute allowing such review.
NB: if jury fails to impose death, P may not seek death on retrial after successful appeal.
Automobile Stops
Generally, police may not stop a car without at least reasonable suspicion that a law has been broken. Police may order car's occupants out after lawfully stopping the vehicle in the interest of officer safety. If he reasonably believes them to be armed, he may search for weapons.
Bail
- Bail can be set no higher than necessary to ensure defendant's appearance at trial.
- Refusal to grant bail or setting of excessive bail can be appealed immediately; however SCOTUS upheld portions of the Bail Reform Act allowing arrestees to be held without bail if they pose a danger or would fail to appear at trial. Try a due process argument.
Basic model for answering search and seizure questions:
1 - Look for whether the person has a 4A right.
2 – Did police had a search warrant, and is it valid. (If they have a warrant, test validity of the warrant; If it’s good, you have a VALID search. If no warrant, see if you can save evidence anyway using good faith defense for reliance on a defective warrant.
3 - if no warrant, or invalid, see if the search falls under one of the 6 exceptions to the warrant requirement
Burden of Proof and Sufficiency of Evidence
DP requires proving guilt beyond a reasonable doubt.
The state may generally impose the burden of proof upon the defendant in regard to an affirmative defense.
Mandatory presumption or presumption that shifts the burden of proof to the defendant violates the 14A requirement that the state prove every element of a crime beyond a reasonable doubt.
Burglary
Breaking and entering another person's house at night w/ intent to commit a felony inside
- ACTUAL (force) or CONSTRUCTIVE (threats or fraud) breaking.
- EXAM TIP: Not a breaking for to come uninvited through an open door/window! But if person then pushes open INTERIOR door, THAT is a breaking
- B&E has to be with the INTENT TO COMMIT A FELONY INSIDE. That intent has to exist at the time of the breaking!
Can a defendant be made to use counsel to represent her?
NO. A defendant has an absolute right to waive counsel and represent himself. The waiver must be knowing and intelligent, and the defendant need not be found capable of representing himself. Denial of this right constitutes reversible error. You cannot recover costs if an attorney is appointed for someone against their will.
Can someone "withdraw" from a conspiracy? What is the effect of withdrawal?
NO. Withdrawal from a conspiracy is no defense to a charge of conspiracy.
But withdrawal IS a defense to subsequent crimes committed by other members of the conspiracy *if the withdrawing party affirmatively notifies via (an affirmative act) all members of the conspiracy in time for them to have opportunity to abandon their plans.
Challenges to pretrial ID (two)
1) Right to counsel
- Post-charge lineup or showup. No right to counsel at photo id. Or taking of physical evidence i.e. handwriting, fingerprint.
2) Due process violation pre or post charge
- If ID is unnecessarily suggestive and there’s substantial likelihood of miss-ID. I.e. one black guy in lineup.

Exclusionary rule applies no in-court ID allowed! Unless Indept source for ID i.e. at time of crime!
Circumstances constituting ineffective assistance of counsel
1. Deficient performance
AND
2. Result of the proceeding would have been different
Co-conspirator liability – Rule
Each conspirator is liable for the crimes of all other co-conspirators if:
1. the crimes were committed in furtherance of the objectives of the conspiracy AND
2. The crimes were a natural and probable consequence of the conspiracy.
Collateral Attacks on Guilty Pleas After Sentencing
A plea can be set aside for:
(1) involuntariness (failure to meet standards for taking the plea);
(2) lack of jurisdiction;
(3) ineffective assistance of counsel; or
(4) failure to keep the plea bargain.
Collateral Effects of Guilty Pleas
A guilty plea conviction may be used as a conviction in other proceedings when relevant. However, a guilty plea neither admits the illegality of incriminating evidence nor waives the 4th Amendment claims in a subsequent civil damages action.
Collateral Estoppel and Double Jeopardy
Under the doctrine of collateral estoppel, defendant may not be tried or convicted of a crime if a prior prosecution by that sovereignty resulted in a factual determination is inconsistent with one required for conviction.
Common law arson requires
Common law arson requires
1) Malicious
2) Burning
(a) Not just smoke or water damage not explosion
3) Of the dwelling house
4) Of another
Common Law Criminal Homicide - 3 offenses
1. Murder
2. Voluntary Manslaughter
3. Involuntary Manslaughter
Common Law Embezzlement
1) Embezzler initially has lawful possession
2) And Engages in Illegal Conversion
(a) No need for carrying away
(b) No need for benefit to D
(c) Embezzler takes possession only, not title.
Common law prop crimes (3)
1- Larceny
2 - Embezzlement
3 - False pretenses
Consent as a defense
Consent of the victim is almost never a defense. One can't consent to the commission of a crime
Consent to false announcement of a warrant
Negates the consent - no authority to search
When does Conspiracy merge?
Conspiracy DOES NOT MERGE with the substantive offense.
Constitutionality of pretrial detention
Not a violation of due process
Contemporaneous requirement for search of autos
Not required - vehicle may be towed
Criminal contempt jury right
1) If the sum of the sentences for criminal contempt exceeds 6 mos then D has right to jury.
Cross-Sectional Requirement for Juries:
Ds have a right to have the county jury POOL reflect a fair cross section of the community in that county.

But NO right to have your OWN JURY reflect a cross section of the county population.
Any death penalty statute that does not allow mitigating facts and circs
unconstitutional
Defendant's lack of access regarding grand juries (4)
1- No right to notice
2- No right to be present
3- No right to introduce evidence
4- No right to counsel or Miranda
Defendant's right regarding admissibility of evidence
- Right to a hearing by a judge out of the presence of the jury;
- Govt must establish admissibility by a preponderance;
- Right to testify without this being used against him
Defense of a Dwelling
Deadly force may never be used solely to defend your property.
Defense of duress (compulsion or coercion)
Duress is a defense to all crimes except homicide
Defense of self defense for original aggressor
Never applies, unless
(a) Originally aggressor withdraws and
(b) Communicate withdraw to the victim!
Defense to strict liability offenses (4):
1) NOT mistake of fact
2) NOT absence of intent i.e. intoxication
3) NOT consent of the V
4) Maybe unconstitutional
Defenses to Charge of Conspiracy
1. Impossibility is not a defense.
2. Withdrawal not a defense BUT can be a defense to subsequent crimes of co-conspirators provided there is an affirmative act to notify all members of the conspiracy of the withdrawal
Defenses to liability for attempt
Legal impossibility
Detention to obtain warrant
If probable cause exists police may detain person from house to get warrant to search
Determining if a crime is strict liability
If the statute is:
1. administrative
2. Regulatory
3. morality
and the statute does not contain an adverb, i.e. knowingly, purposely THEN strict liability crime and a defense that negates intention cannot be a defense
Development of probable cause
- Investigatory detention
- Probable cause
- Arrest
- Full search incident to arrest
Distinguish False Pretenses and Larceny by Trick
if only possession is what is obtained by the D then the offense is larceny by trick not false pretenses which requires obtaining TITLE
Do Miranda requirements apply to a witness testifying at the Grand Jury?
No, not even if compelled by subpoena to be there.
Doctrine of transferred intent is most commonly applied to (3 crimes) and does not apply to (1 crime)
Applies to: homicide, battery, and arson
DOES NOT Apply to: attempt
Does the D have a Fourth Amendment right
1. Was there govt. conduct
2. Did D have a reasonable expectation of privacy
3. If so, did police have a valid warrant
4. No valid warrant - did police make a valid warrantless search/seizure (6 possibilities)
Dog sniffs at traffic stops
Okay so long as does not extend beyond time to issue ticket and conduct ordinary inquiries incident to stop
When does Double jeopardy attach for civil and criminal trials?
At a jury trial when jury is empanelled and sworn
jeopardy does not apply to civil proceedings i.e. criminal and civil prosecution for smuggling & forfeiture.
Double jeopardy requires
1) Retrial for
2) The same offense
3) By the same sovereign
Due Process standard relating to identification
- Unnecessarily suggestive
AND
- Substantial likelihood of misidentification
(a difficult test to meet)
Duress
A DEFENSE to ALL CRIMES EXCEPT HOMICIDE. The threat of harm must be imminent, not future.
Durham or New Hampshire Test for Insanity
crime is "product of the mental disease or defect" i.e. the crime would not have been committed but for the disease
Effect in criminal proceeding of failure to claim privilege against self incrimination in civil matter
Privilege waived
Effect of an invalid arrest on subsequent criminal prosecution
By itself, no impact; look for fruit of the poisonous tree
Effective Assistance of Counsel
The 6th Amendment right to counsel includes a right to EFFECTIVE ASSISTANCE of counsel. This right extends to the first appeal. Effective assistance is generally presumed.
Elements of a crime
1. Act
2. Intent
3. Concurrence
4. Harmful result/causation
Elements of adequate provocation
1. Sudden and intense passion as an ordinary person
2. D was in fact provoked
3. Not time to cool down
4. D did not in fact cool down
Elements of Arson
1. Malicious
2. Burning
3. Of the Dwelling
4. Of Another
Elements of Burglary (common law)
1. A Breaking
2. And Entry
3. Of the Dwelling
4. Of Another
5. At Night
6. With the Intent to commit a felony therein
Elements of Conspiracy
1. An agreement between two or more persons (need not be express, court will infer)
2. An intent to enter into an agreement
AND
3. An intent to achieve the objective ("meeting of guilty minds")
(4). An overt act (mere preparation will suffice)
Elements of Larceny (possession not title)
1. A taking (D takes control)
2. And carrying away
3. of tangible personal property
4. of another (someone with a superior possessory interest)
5. by trespass
6. with intent to permanently deprive
Eliminating 5th amendment protection against compelled testimony (3 types)
1) Grant of immunity 2 types
- Use & derivative use immunity
2) No possibility of incrimination i.e. SOL has run.
3) Waiver
- Def waives by taking the stand. W/r/t all relevant areas of legit cross
Elimination of the privilege against self-incrimination (3 means)
1. Grant of immunity
2. No possibility of incrimination (statute of limitations has run)
3. Scope of immunity
Embezzlement
1. The fraudulent
2. Conversion (need not result in the direct personal gain to the D)
3. of property
4. of another
5. by a person in lawful possession of that property
Entrapment
Very narrow defense and almost never available b/c the predisposition to commit crime negates the defense.
1. The criminal design must have original with law enforcement and
2. the D must not have been predisposed to commit the crime
Entrapment defense
Predisposition on the part of D to commit the crime negates the defense of entrapment.
2 defenses for specific intent crimes
1) voluntary intoxication
2) any mistake of fact even if unreasonable
4 exceptions to double jeopardy rule (when retrial can occur):
1. Jury unable to agree to agree on a verdict
2. Mistrials for manifest necessity
3. Retrial after successful appeal
4.** Breach of an agreed upon plea bargain by the defendant
4 Insanity Tests and Definitions of each
1- M’Naghton test: At the time of her conduct, def lacked the ability to know the wrongfulness of her actions or to understand the nature and quality of her actions
2 - Irresistible impulse test - Def lacked capacity for self control and free choice.
3 - Durham rule - Def’s conduct was a product of a mental illness.
4 - MPC test - Def lacked the ability to conform her conduct to the requirements of law.
Attempt
Attempt is an act, done with intent to commit a crime, that falls short of completing the crime. To be guilty of attempt, the D must intend to perform an act and obtain a result that, if achieved, would constitute a crime. The act must be more than mere preparation.
Common law burglary requires
1) breaking - Actual or constructive - by threat or fraud
- Open door alone not breaking. But push open bedroom door = breaking
2) Entering
3) The dwelling house of another
4) At night!
5) W intent to commit a felony inside
- Intent must exist at time of breaking & entering
Common law larceny
1) Requires a wrongful taking 2) and a carrying away (asportation)
- Carrying away however so slight 3) W/out consent. Consent by fear invalid. 4) And the intent to permanently deprive permanently at the time of the taking. - If no intent to permanently deprive permanently at the time of the taking no larceny
- No larceny if you believe its yours or you have rt.
Common law murder
at common law, murder is the unlawful killing of another with malice aforethought. Malice aforethought may be found on the basis of the following four mental states: 1) intent to kill; 2) intent to cause severe bodily harm; 3) reckless indifference to a severe risk to human life; or 4) intent to commit a felony
Competency to Stand Trial
D is incompetent to stand trial if he either (1) lacks a rational as well as factual understanding of the charges and proceedings, or (2) lacks sufficient present ability to consult with his attorney with a reasonable degree of understanding.

The state may place the burden on the D by a preponderance of the evidence standard, but requiring clear and convincing evidence is unconstitutional.
Conflicts of Interest
Joint representation is not per se invalid.
- if the attorney advises the court of the resulting conflict of interest at or before trial, and court refuses to appoint separate attorneys, the D is entitled to automatic reversal. - D conflict of interest with attorney is rarely grounds for relief. - D has no right to be jointly represented with his co-defendants if the government can show a potential conflict of interest.
Consent to Search
Must have voluntary and intelligent consent.
- Knowledge of the right to withhold consent NOT a prerequisite to establish consent.
- Scope of search is limited by the scope of consent, but extends to all areas which a reasonable person in the circumstances would believe it extends to. Any person with apparent equal right to use or occupy the premises may consent to the search, and any evidence found may be used against other owners/occupants.
Ambiguity of request
Must be unambiguous; police may continue to interrogate until unambiguous request is made
An arrest must be based on
Probably cause present when the officer makes the arrest
Anticipatory probable cause
Sufficient that there is reason to believe seizable evidence will be found when search is conducted
Any automatic category for imposition of death penalty is
Unconstitutional
Any limits on number of mitigating factors presentable in death case
Unconstitutional
Appealing Bail or preventive detention
Bail is immediate appealable & preventative detention is constitutional
Applicability of the year and a day rule
Outdated; mostly abolished
Are bail issues appealable? When?
Yes, immediately.
Arresting a Person
Arrest must be based on probable cause. A warrant is generally not required before arresting someone in a public place. Must have warrant, though, to effect a non-emergency arrest of a person in his home.
Arson
The malicious burning of the dwelling house of another
- ONLY applies to BURNINGS/FIRES NOT water/smoke/soot damage, or explosion
- DAMAGE required: a material harming of the building by firing.
- If you OWN it, it can't be common law arson
Article I of the Constitution places these two substantive limitations on both federal and state legislatures
1. No Ex Post Facto Laws
AND
2. No Bills of Attainder
As a physical act must be voluntary these acts are NOT considered "voluntary"
1. Conduct not the product of the actor's determination (shoved into something)
2. Reflexive or convulsive act (epileptic seizure)
OR
3. Acts performed while unconscious or asleep (unless D knew likely to happen)
As a prerequisite to the admissibility of any statement made by the accused during a custodial interrogation there must be (2)
1. Miranda warnings
AND
2. Valid waiver
Assault - definition/elements
2 theories of assault at common law:
1. Assault as an attempted battery (I swing, you duck, I miss). This is a specific intent crime (an attempt)
2. Assault as a threat. (I threaten you with bodily injury.) This is a general intent crime.
Assault (2 possibilities)
1. An attempt to commit a battery (specific intent)
OR
2. Intentional creation of a reasonable apprehension (more than just words)
At what point is the crime of solicitation complete
At the time the solicitation is made
Attempt
The specific intent AND a substantial step beyond mere preparation
Authority to use roadblocks
1. Must stop cars on the basis of some neutral, articulable standard (every third car)
AND
2. Be designed to serve purpose closely related to a particular problem related to autos and their mobility
Differentiate between Right to Remain Silent and Right to Counsel
- Silent: all questioning related to the particular crime must stop
- Counsel: all questioning must cease (not offense specific)
Did the government have a valid warrant?
(1) Issued by a neutral and detached magistrate?
(2) On a showing of probable cause?
(3) Reasonably precise as to the place to be searched and items to be seized?
Withdrawal from conspiracy
Withdrawal requires:
1)Affirmative act
2)That notifies all co-conspirators
3)In time for all to abandon
4)Defendant withdrawing must attempt to neutralize any assistance.
Basis for an attack on a guilty plea after sentence
1. Plea involuntary
2. Lack of jurisdiction
3. Ineffective assistance of counsel
4. Failure to keep the plea bargain
Battery - definition/elements
A completed assault.
"An unlawful application of force to the person of another resulting in either bodily injury or an offensive touching."
- general intent crime.
Test for "different offenses"
Different if each requires proof of an additional element that the other crime does not
Breach of plea bargain by D allows prosecutor to
Reinstate original charges
Breaking Required for Burglary
1. Actual breaking - minimal force is sufficient such as pushing a door open but walking through an open door is not enough
2. Constructive Breaking - gaining entry by means of fraud, threat or intimidation
Withdrawal of guilty plea requires
1) plea was involuntary
(a) show mistake in plea making
2)lack of jxn
3)ineffective assistance of counsel
4) failure of prosecutor to keep agreed to plea bargain
5) Supreme court won’t disturb guilty plea after sentence (immune from collateral attack)
- Supreme Court treats plea bargain like K.
When may a wiretap warrant be issued
(1) probable cause shown,
(2) persons sought to be overheard named,
(3) warrant describes with particularity conversations that can be overheard,
(4) limited to short period of time,
(5) terminated when the desired information is obtained, and
(6) return made to court, showing conversations intercepted.
Is there a 4th Amend issue for people who were in a convo with a person being wiretapped?
Only if they actually made attempt to keep convo private
Who can invoke the Fifth Amendment Privilege against Compelled Testimony?
Anybody under oath, in any kind of case: civil, administrative hearing, congressional hearing, etc.
EXAM TIP: if you don’t assert it the first time you’re asked the question, you waive the privilege for all subsequent criminal prosecutions.
When is VOLUNTARY intoxication a defense?
only if the crime requires purpose or knowledge, AND the intoxication prevented the D from formulating the purpose or obtaining the knowledge required for the crime.

Thus, it is a good defense to specific intent crimes.
When is there a "lack of effective consent" for rape?
1 - Intercourse is accomplished by actual force
2 - Intercourse is accomplished by threats of great and immediate bodily harm.
3 - The victim is incapable of consenting, or
4 - the victim is fraudulently caused to believe that the act is not intercourse.
When someone MIGHT have standing for 4th amendment purposes (not automatic in all situations):
1. You’re legitimately present when search takes place 2. You own the property seized
NB: Car passengers who don’t claim they own car/property taken out of car do NOT have standing just b/c they were present when search occurred
- An indiv (drug dealer) briefly on premises of s/o else solely for biz purpose, does NOT have standing to object to search of those premises.
When is Right to Counsel NOT applicable?
(1) Blood sampling/fingerprinting
(2) Taking of handwriting or voice exemplars
(3) Pre-charge/investigative line-ups
(4) Photo identifications
(5) Preliminary hearings to determine probable cause to detain
(6) Brief recesses during defendant's testimony at trial
(7) Discretionary appeals
(8) Parole and probation revocation proceedings
(9) Post-conviction proceedings
When is Mistake or ignorance of fact a defense to a crime?
only if it shows that the defendant lacked the state of mind required for the crim;
-- > irrelevant if the crime imposes strict liability.

For specific intent, mistake does not have to be reasonable.
When is Right to Counsel applicable?
(1) Custodial police interrogation
(2) Post-indictment interrogation, custodial or not
(3) Preliminary hearings to determine probable cause to prosecute
(4) Arraignment
(5) Post-charge lineups
(6) Guilty plea sentencing
(7) Felony trials
(8) Misdemeanor trials when imprisonment or suspended jail sentence is imposed
(9) Overnight recesses during trial
(10) Appeals as a matter of right
(11) Appeals of guilty pleas
Felony murder
= first degree murder
- doctrine is limited to felonies that are inherently dangerous.
A defense to the underlying offense, i.e., robbery, is a defense also to felony murder.
Fruit of the Poisonous Tree Doctrine
Not only must evidence illegally seized be excluded, but all evidence obtained or derived from exploitation of that original police illegally is also excluded.
EXAM TIP: FOPT does NOT apply when the original police illegal action was a Miranda violation
General intent
General intent is an awareness of all factors constituting the crime,
- D must be aware that she is acting in the proscribed way and that any required attendant circumstances exist.
- D need not be certain that all the circumstances exist, it is sufficient that she is aware of a high likelihood that they will occur.
Grand Jury Proceedings
D has no right to notice that Grand Jury is considering an indictment, to be present and confront witnesses, or to introduce evidence. Witnesses (even if potential defendants) have no right to counsel or Miranda warnings. - Evidence that would be inadmissible at trial may be presented to the Grand Jury, and the defendant cannot have the indictment quashed on those grounds.
- no right to challenge a subpoena to be a witness at a Grand Jury proceeding for ANY REASON.
Guilty pleas & plea bargaining (right to trial)
1) Must be voluntary & intelligent
2) And on the record
3) D must understand the nature of the charge
4) And judge must state max possible sent and any mandatory min sentence.
5) judge must state right to plead not guilty, & that plea is waiver of jury right.
Habeas Corpus Proceeding
- Indigent has no right to counsel at a habeas corpus proceeding.
- Petitioner has burden of proof by a preponderance of the evidence to show unlawful detention.
- State may appeal grant of writ of habeas corpus.
- D generally may bring a habeas petition only if in custody. Generally, this includes anyone who has not fully served the sentence about which he complains.
Exceptions to the general rule that courts will not disturb guilty pleas after sentencing:
There are 4 good bases for withdrawing guilty pleas after sentencing
1. the plea was involuntary (a mistake in the plea taking process)
2. lack of jurisdiction - court that took the plea didn’t have the jurisdiction to take it
3. ineffective assistance of counsel
4.** failure of prosecutor to keep an agreed-upon plea bargain.
EXCEPTIONS to the Good Faith Defense to the Exclusionary Rule -- when the GF Defense does NOT apply
1. affidavit underlying the warrant is so lacking in PC that no reasonable police officer would have relied on it.
2. warrant is invalid on its face (eg, failure of warrant to state with particularity the place to be searched and the things to be seized)
3. cop lied to or misled the magistrate
4. magistrate has wholly abandoned her judicial role
Exclusionary Rule
Prohibits introduction of evidence obtained in violation of defendant's 4th, 5th, and 6th Amend rights. Inadmissible at trial and all "fruit" must be excluded as well.
Exceptions:
(1) obtained from an independent source,
(2) intervening act of free will by the defendant, and
(3) inevitable discovery.
Note: It is difficult to have live testimony excluded on these grounds.
Execution of warrant (6)
1. By police
2. Without unreasonable delay
3. Must knock and announce
4. May seize any contraband product of search
5. CANNOT search persons on premises not named in warrant (unless probable cause arises)
6. Implicit authority for limited detention of persons on premises
Extortion
the corrupt collection of an unlawful fee by an officer under color of office.
- Under modern statutes, extortion often consists of obtaining property by means of threats to do harm or to expose information.
The threat is future and the property need not be obtained from the victim's person or presence.
CONSPIRACY – elements
There must be
(i) an agreement,
(ii) an intent to enter into an agreement, and
(iii) an intent to achieve the objective of the agreement. The parties must agree to achieve the same objective by mutual action. Requires a meeting of at least two "guilty minds"
EXAM TIP: Unwitting agents are not conspirators
Continuing trespass doctrine
If D takes property with a wrongful state of mind but without the intent to steal, and later, while still in possession of it, forms the intent to steal it, the trespass involved in the original wrongful taking is regarded as continuing and the defendant is guilty of larceny!
Custody
A person is in custody if, at the time of interrog., they are not free to leave. (Location doesn’t matter.)
EXAM TIPS: probation interviews & routine traffic stops are NOT CUSTODIAL. Police can ask you questions and use those answers with no Miranda requirement.
Deadly force in self-defense requires
D reasonably believes deadly force is about to be used on them.
- Minority rule requires D to retreat to the wall before using deadly force in self defense
- Exceptions in the home, rape or robbery, or if police officer
Deadly Weapon Rule
Use of a deadly weapon authorizes a permissive inference of intent to kill.
Deadly weapon = any instrument or in some cases any part of the body - used in a manner calculated or likely to produce death or serious bodily injury.
Defenses to Felony Murder
1 - defense to the felony = defense to FM
- felony must be independent of the killing
2 - once the def reaches a point of temporary safety (spending night at s/o’s house), deaths caused thereafter are NOT felony murder

NB: if a death is caused by circumstances coincident to the felony, it is not felony murder. There has to be a causal connection btw the murder and the felony.
Double jeopardy exceptions permitting retrial
1) hung jury
2) mistrials for manifest necessity i.e. D serious illness
3) retrial after successful appeal does not violate double jeopardy
4) breach of agreed plea bargain by D
- when D breaches plea, plea & sent may be vacated. I.e. turns state’s then renege.
Double jeopardy rule
- Prohibits trial or conviction of a person for a lesser included offense if he has been put in jeopardy for the greater offense.
- A court can impose multiple punishments at a single trial where the punishments are for 2 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.
Elimination of Privilege Against Compelled Self-Incrimination
Witness may be compelled to answer questions if granted adequate immunity from prosecution. "Use and Derivative Use" immunity is sufficient.
Person has no privilege against self-incrimination if no possibility of incrimination (i.e., statute of limitations has run).
Entering a Guilty Plea
1 - Judge must determine that the plea is voluntary and intelligent.
2 - Must be done by addressing the defendant personally, in open court, on the record.
3 - Specifically, the judge must be sure the defendant knows and understands (1) the nature of the charge and elements of the crime, (2) max possible penalty and the mandatory minimum, and (3) that he has a right not to plead guilty and if he does plead guilty, he waives his right to trial.
Entrapment -- definition/elements
almost never available b/c predisposition
2 prerequisites: 1. The criminal design or plan must have originated with law enforcement officers 2. There's no entrapment if an officer merely provides opportunity for commission of a crime to one otherwise ready and willing to commit it.
NOTE: a mere inclination to engage in illegal activity isn’t adequate proof of predisposition
Entry Required for Burglary
Placing any part of the body inside the structure - even momentarily.
Insertion of tool is entry if inserted for the purposes of accomplishing the felony BUT not if for purposes of gaining entry. EX Shooting a bullet through a window with the intent to kill B is burglary
Ex Post Facto Laws operate to retroactively
1. Make criminal an act that when done was not criminal 2. Aggravate a crime or increase punishment thereafter 3. Change the rules of evidence to the detriment of criminal defendants as a class OR
4. Alter the law of criminal procedure to deprive substantive rights
Exceptions for Permitting Retrial After Jeopardy Has Attached
(1) Hung Jury
(2) Manifest necessity to abort original trial or when termination at behest of defendant on any ground not constituting acquittal on the merits (mistrial)
(3) Defendant who has successfully appealed conviction unless grounds was insufficient evidence (on retrial, may not be tried for greater offense than previously convicted of)
(4) After defendant breaches plea bargain
Larceny
-Wrongful taking, AND Carrying away
-of tangible personal property
-of another
-by trespass (w/o consent or consent by fraud)
-w/ intent to permanently deprive (must exist at taking)
* The intent to permanently deprive must exist AT THE TIME OF THE TAKING -- UNLESS the doctrine of continuing trespass applies.
* The "carrying away" can be VERY VERY SLIGHT
* Taking property in the belief that it is yours or that you have some right to it is NOT larceny
Legal Duty to Act
1. statute (income tax return)
2. contract (lifeguard or nurse)
3. relationship (parent-child, husband-wife)
4. voluntary assumption of care (no duty to save stranger you see drowning but if you start to swim out then duty)
5. creation of peril by the D
Murder
Murder is the unlawful killing of a human being w/ malice aforethought. Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it, and it was committed w/ one of the following states of mind:
1. Intent to kill
2. Intent to inflict great bodily injury
3. Reckless indifference to an unjustifiably high risk to human life or
4. Intent to commit a felony.
Non-specific intent types of murder?
All malice crimes
1) Intent to inflict serious bodily injury and ensuing death
2) Felony murder-unintentional murder that occurs:
-during the commission of or attempted commission of an inherently dangerous felony (BARK - burg, arson, rape, robbery, kidnapping)
3) depraved heart murder/involuntary manslaughter
-depraved heart = unintentional killing by reckless conduct
-involuntary manslaughter = unintentional killing by criminal negligent act
Number and Unanimity of Jurors
There is no constitutional requirement for 12 jurors, but there must be at least 6 to satisfy the right to a jury trial. The Supreme Court has upheld convictions that were less than unanimous, but probably wouldn't approve something like an 8-4 vote for conviction. 6-person juries must be unanimous.
Omission as act
Generally no duty to act: 5 exceptions
1) Duty arise by statute. I.e. taxes
2) Contract. I.e. nurse has legal duty to act
3) Relationship between the parties. I.e. parent child, spouses.
4) Voluntary assumption of care. Cant turn back from rescue.
5) Conduct created the peril
Plain View
The police may make a warrantless seizure when they are:
(1) legitimately on the premises;
(2) discover evidence, fruits or instrumentalities of a crime, or contraband;
(3) see such evidence in plain view; and
(4) it is immediately apparent that the item is evidence, fruits or instrumentalities, or contraband.
Prisoner's Rights
1 - Due Process: only if regulations impose "atypical and significant hardship" in relation to ordinary incidents of prison life. 2 - 4th Amend: no reasonable expectation of privacy in cells. 3 - Reasonable access to courts. 4 - 1st Amendment: incoming mail can be broadly regulated, but not outgoing. Federal statute prohibits states from interfering with religious practices, absent a compelling interest. 5 - Right to Adequate Medical Care: under the 8th Amendment.
6 - Misc: Person convicted of a felony may not vote, and this deprivation may constitutionally continue after term of sentence.
Breaking requirement for burglary
minimal; can be constructive (i.e. fraud, threat);
Burden of proof on insanity
Presumed sane; D must present some evidence
Burning requirement for arson
1. Must have a fire; water, smoke or explosions are enough
2. Damage required - scorching is insufficient - charring is sufficient; A material wasting of the fiber of the building.
Arson
The malicious burning of the dwelling house of another

-In a least likely answer, look for lack of malice
- DAMAGE REQUIRED greater than mere blackening--charring is sufficient
Assault
Assault is either (i) an attempt to commit a battery [specific intent crime] or (ii) the intentional creation--other than by mere words-- of a reasonable apprehension in the mind of the victim of imminent bodily harm [general intent crime].
Battery
Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.
Embezzlement
-Fraudulent
-Conversion
-Of personal property
-Of another
-By a person in lawful possession of that property

--Disting from larceny--
-misappropriates property of which he's in lawful possession v. larceny where misappropriates property not in lawful posession
Evanescent Evidence Exception
police may seize without a warrant evidence likely to disappear before a warrant can be obtained
Evidentiary Search and Seizure Analysis
(1) Does the defendant have a 4th amendment right?
(2) Did the government have a valid warrant?
(3) If police didn't have a valid warrant, did they make a valid warrantless search and seizure?
Exception to bar against retrial for lesser included offense or greater offense
New evidence
Exception to the no retrial for the "same offense" double jeopardy rule:
If D is in jeopardy for battery, and the victim then dies … they CAN then try the Def for murder.
Exception to the scope of the fruit of the poisonous tree doctrine
Does not apply where police illegality is a violation of Miranda
Exceptions permitting retrial
1. Hung jury
2. Mistrial for manifest necessity
3. Retrial after successful appeal
4. Breach of plea bargaining
Exceptions to the Duty to Retreat in retreat jurisdictions
3 exceptions to the duty to retreat:
i. You don’t have to retreat out of your home
ii. You don’t have to retreat if you are the victim of a rape or robbery
iii. Police officers have no duty to retreat
Exceptions to the warrant requirement
1. Search incident to a lawful arrest
2. Automobile exception
3. Plain view
4. Consent
5. Stop and Frisk
6. Hot Pursuit, Evanescent evidence, and other emergencies
Exclusions from liability
1. Members of the protected class
2. Withdrawal (before crime is actually committed)
Extortion distinguished from Robbery
Extortion = future rather than imminent harm
- don't have to take anything from the person or his presence
Failure of death penalty statute to provide D bopportunity to show mitigating factors is
Unconstitutional
Failure to act will result in criminal liability provided three requirements are satisfied
1. Legal duty to act
2. Knowledge of facts giving rise to duty (law may impose duty to learn - i.e. lifeguard)
AND
3. Reasonably possible to perform
False imprisonment
-Unlawful confinement
-of a person
-without his valid consent
False pretense
1)D persuades owner of prop to convey title
2)On false pretense (intent to defraud)
3)Based on present or past fact
- Future promises not sufficient for liability
EXAM TIP: The conveyance of TITLE is the key.
Federal criminal law is governed entirely by
statute (i.e. there is no federal common law)
Felony Murder - Limitations on Liability
- Majority view is that a felon is not liable for the death of a co-felon caused by resistance from the victim or police
- states are split on whether felon is liable for the killing of an innocent party due to resistance by the victim or police
Forgery -- definition
Forgery consists of the making of a false writing or the altering of an existing writing with intent to defraud

EXAM TIP: Any writing that has potential legal significance is a potential subject of forgery.
Formula for identifying strict liability crimes
The crime concerns administrative, regulatory, or morality issues and no adverb in the statute
Four common law mental states
1) Specific intent - Qualify for defenses not avail for other crimes
2) Malice
(a) Murder & arson
3) General intent - Almost all crimes are general intent, i.e. rape and battery
4) Strict liability - Defenses that negate intent don’t apply
General rule for when you do NOT have an REOP.
You have no REOP when the government seizes something that is held out to the public.
Generally there is NO MERGER EXCEPT for
1. Solicitation or Attempt
AND
2. Lesser included offenses merge into greater offenses
Government conduct (2)
1. Publicly paid officers
2. Citizens acting at their direction
Harmless Error Test
If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless government can show, beyond a reasonable doubt, that the error was harmless.

Denial of right to counsel at trial is NEVER harmless.
Hastening an inevitable result
Is a legal cause of that result
How the FOPT chain can be broken:
1. Show they had an INDEPENDENT SOURCE
2. Show INEVITABLE DISCOVERY
3. Intervening acts of FREE WILL on part of def (often tested)
How to balance the reasonableness of searches into a persons body
Balance society's need for the evidence against the magnitude of intrusion
Homicide is murder if
1) Intent to kill
2) Intent to do serious bodily harm
3) (depraved heart / highly reckless) intentional performance of an act with an unjustifiable high risk to human life
4) Felony murder
Hot Pursuit
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.
How can a suspect waive Miranda rights?
Any waiver must be KNOWING, VOLUNTARY, & INTELLIGENT (Exam Tip: shoulder shrug doesn’t count as knowing/intelligent.)
How can you use excluded evidence for impeachment purposes
Evidence obtained illegally may still be used to impeach the defendant's credibility (but no other witness)
How do you determine whether someone's in custody?
Depends on whether their freedom of action is denied in a significant way based on objective circumstances.
Imprisonment of Indigents for Non-Payment
Where aggregate imprisonment exceeds the maximum fixed by statute and results directly from involuntary non-payment of a fine or court costs, there is an impermissible discrimination and violation of Equal Protection.
Inchoate crimes and definitions
1) solicitation: asks, encourages, requests another to commit a crime
-does not need 2 guilty minds
2) Attempt: specific intent, close proximity substantial step
3) Conspiracy: specific intent, agreement + overt act, 2 guilty minds
Inconsistent Verdicts
Verdicts where a defendant is found guilty, but a co-defendant is not on the same evidence are not reviewable.
In-Court Identification
The witness may make an in-court identification despite the unconstitutional pre-trial ID if the in-court ID has an independent source. The most common is an opportunity to observe at the time of the crime.
Indigence and Recoupment of Cost
The state generally provides counsel in close cases of indigence, but then may seek reimbursement from those convicted defendants who later become able to pay.
Infancy defense
Under 7 no criminal liability
Under 14 Rebuttable presumption of no criminal liability
Informant's tip as basis for reasonable suspicion
Must be accompanied by indicia of reliability
Interrogation
Any conduct where police officers know or should have known they might get a damaging statement from the person in custody.

This is not just ANY questioning.
Intoxication Defense
1. Voluntary intoxication - Includes addicts/alcoholics; a defense ONLY to specific intent crimes!
2. Involuntary intoxication - a form of insanity. This & insanity ARE defenses to ALL crimes, INCLUDING SL crimes
Involuntary confessions
Inadmissible for any purpose
Involuntary intoxication
1. Under duress
2. Without knowledge
OR
3. Pursuant to medical advice
treated as a mental illness - so apply the insanity test
Involuntary Manslaughter - 2 types
1. Criminal negligence - i.e driving while tired and killing someone
2. "unlawful act" - killing in the course of commission of a misdemeanor or a felony not listed for felony murder
Irresistible Impulse test
D unable to control his actions or conform conduct to the law (no self control and no free choice)
Is a warrant required to arrest someone in a public place? In their own home?
Arrest warrants are generally NOT required prior to arresting s/o in a public place.

BUT non-emergency arrest of indiv in own home requires arrest warrant.
Is abandonment a defense to attempt?
Not usually. Abandonment is NOT a defense to attempt if you have the specific intent to commit, say, a robbery, and you went beyond mere preparation (attempt).
Is preventative detention Constitutional?
Yes
Is the judge required to accept a plea that has been agreed upon by prosecution and defense?
No, he can reject it.
Jeopardy attaches for bench trials when
When the first witness is sworn
Jeopardy attaches for jury trials when
Empanelling and swearing in of the jury
Jeopardy in civil proceedings
Generally does NOT attach
jury cross-section of society requirement
Right to county jury pool fairly reflect cross sectn of society in that community
- No right to individual jury reflect cross sectn of community
Kidnapping
-Unlawful confinement
-involving either some movement of victim or
-concealment in a secret place
Larceny by trick
All of the elements of larceny...BUT: if the victim consents to the defendant’s taking possession of the property, but such consent was induced by a misrepresentation, the consent is not valid, and the offense is called larceny by trick.
Larceny of lost or mislaid property
Considered constructively in the owner's possession
Larceny among joint owners or against abandoned property
Cannot be committed
Offenses against Habitation
- Burglary
- Arson
Offenses against Person include
- Assault and Battery
- Homicide
- Voluntary Manslaughter
- Involuntary Manslaughter
- Statutory Rape
Opening International Mail
Permissible border searches include opening of international mail when postal authorities have reasonable cause to suspect that the mail contains contraband.
Other 8th Amendment Prohibitions on the Death Penalty
8th Amendment prohibits imposing the death sentence on the mentally retarded. Also prohibits the execution of those under 18 at the time the offense was committed.
Overt Act for a conspiracy (majority rule)

Minority and common law rule grounded in the agreement
An act will suffice, even mere preparation.
Physical Act for criminal liability - Involuntary acts
1. conduct that is not the product of the actor's determination
2. reflexive or convulsive acts (i.e. seizure)
3. acts performed while unconscious or asleep (i.e. sleepwalking but not driving while tired and falling asleep)
Plain meaning rule
when statutory language is plain and the meaning is clear, the court must give effect to it
Police will NOT get the benefit of a good faith defense where
1. Affidavit so lacking in probable cause
2. Warrant defective on its face
3. Police lied/misled magistrate
4. Magistrate has wholly abandoned his judicial role
Preemptory challenge limited by Equal Protection clause how
Forbids use of preemptory challenge to exclude based on race or gender
Pretrial ID: presence of attny required
D has right to counsel at any post-charge lineup or showup. No right to counsel at photo id. or taking of physical evidence i.e. handwriting, fingerprint.
Pre-Trial Publicity
Excessive pre-trial publicity that is prejudicial to the defendant may require a change of venue or retrial.
Property Offenses
1 - Larceny
2 - Embezzlement
3 - False Pretenses
4 - Robbery
Public safety exception to Miranda
If police interrogation is reasonably prompted by concern for public safety, questions obtained in violation of Miranda may be used in court (scope unclear, probably limited)
Public school searches
Do not need a warrant or probable cause; only reasonable grounds for the search
Rape
Rape is the unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent. The slightest penetration is sufficient. Most states have rejected the "by a man not her husband" aspect.
Reasonable suspicion defined
Totality of the circumstances
Rebuttable presumption of no criminal liability on infancy under age
Fourteen
Refusal to grant bail or the setting of excessive bail appealable when
Immediately
Remedy for an unconstitutional identification
Exclusion of the in-court identification; severe and rarely granted
Required Intent for Burglary
Must intend to commit a felony at the time of entering - if the intent is formed after entry burglary is not committed.
Required use of grand jury
1) States not required to use grand jury - Tx uses Information signed by DA
2) Exclusionary rule doesn’t apply to GJ.
3) GJ proceedings secret, has no right to appear or offer witnesses
Requirements for a valid search incident to arrest (SIA):
1. The arrest MUST BE LAWFUL.
2. The search must be CONTEMPORANEOUS in time and place with the arrest
3. GEOGRAPHIC SCOPE limitation on what can be searched - PERSON and the areas they can reach to procure weapon/destroy evidence ("wing span")
Right to effective assistance of counsel requires
1) Deficient performance by counsel
2) But for such deficiency, result of proceeding would be different. Harmless error. Unless facts suggest not-guilt, probably no relief
3) ESSAY analyze the facts!
Right to jury attaches
If max authorized sentence exceeds 6 mos then right to jury
Right to counsel applies to what parts of a criminal prosecution
All critical stages - adversarial judicial proceedings
Right to Counsel During Testimony
Defendant has no right to consult with attorney while testifying, and may be sequestered from her attorney during short breaks (not overnight).
Right to counsel is offense
Specific
Right to Appeal
No federal constitutional right to an appeal.
Retreat from deadly force
Majority: no duty
Minority: only if could do so safely and never from home or while being robbed
Right of the aggressor to use self-defense (2 requirements)
1. Must remove from fight
AND
2. Must communicate such
OR
Upon sudden escalation from a minor fight to one of deadly force without a chance to withdraw
Right to Support Services for Defense
Where the defendant made a preliminary showing that he is likely to be able to use the insanity defense, the state must provide a psychiatrist for the preparation of the defense.
Right to trial by jury limited to what kind/level of offense
Serious offenses only - imprisonment for over 6 months
Right to unbiased judge
Violation of due process where judge shown to have
- Actual Malice
OR
- Financial Interest
Right to Venire Selected from Representative Cross-Section of the Community
The defendant only need to show underrepresentation of a distinct and numerically significant group in the venire to show his jury trial right violated. No right to proportional representation on all groups on his personal jury, though.
Rights NOT Afforded in Juvenile Court Proceedings
(1) Right to jury trial
(2) Pre-trial detention allowed when juvenile is a "serious risk" to society, as long as detention is for a strictly limited time before trial may be held.
Rights That Must Be Afforded in Juvenile Court Proceedings
(1) Written notice of charges
(2) Assistance of counsel
(3) Opportunity to confront and cross-examine witnesses
(4) Right not to testify
(5) Right to have "guilt" established by proof beyond a reasonable doubt
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
5. With the intent to permanently deprive him of it.
Scope of 5th amendment protection against compelled testimony
1) 5th amendment does not protect physical evidence, i.e. blood , hair, urine.
2) Does not apply to doc production
Scope of Accomplice Liability
1. The crime itself
2. All other foreseeable crimes
Scope of conspirator liability
Each conspirator liable for all crimes of co-conspirator if committed w/in scope of crime and foreseeable.
Same offense for double jeopardy
1) 2 crimes do not constitute the same offense if each crime requires proof of an additional element.
Scope of protection against self incrimination limited to
Testimonial evidence; physical evidence not protected
Scope of search based on consent
Limited to those areas to which a reasonable person under the circumstances would believe it extends
Scope of search incident to a lawful arrest
Without a warrant: Wingspan and protective sweep for accomplices (must be contemporaneous in time and place)
Scope of search incident to incarceration
an arrestee's personal belongings and an entire impounded vehicle
Scope of search incident to Stop and Frisk
Pat down of outer clothing
Scope of search of Auto based on full probable cause
Entire vehicle (including trunk) and any containers within the vehicle that may contain the suspected contraband
Scope of search of auto incident to a properly stopped traffic violation
- May remove driver from car and
- IF reasonable belief person is dangerous
- May search area limited to those in which a weapon may be placed or hidden
Scope of search of auto incident to lawful arrest
Passenger compartment (including containers) but NOT the trunk (must be contemporaneous in time and place)
Search incident to incarceration
Inventory search at station doesn't require a warrant. Ditto for an impounded vehicle.
Search of Auto without warrant
Probable cause it contains contraband (same level as needed to get a search warrant)
Split in jurisdiction regarding overt act to a conspiracy
Majority: agreement and overt act

Minority/Common law: agreement is enough
Spontaneous statements and Miranda warnings
Miranda warnings aren’t needed before a spontaneous statement (EXAM TIP: “blurted”)
Separate Sovereigns and Double Jeopardy
Constitutional prohibition on double jeopardy doesn't apply to trials by separate sovereigns. Person may be tried for same conduct by state and federal government, two states, but not a state and its municipalities.
Solicitation
Asking someone to commit a crime.
- The crime ends when you ask, if the person agrees then it is conspiracy and the crime of solicitation merges.
Source of reasonable suspicion
Need not arise from officer's personal knowledge
Searches of persons found on searched premises
Warrant founded on PC to search for contraband authorizes police to DETAIN occupants of the premises during a proper search, but NOT to SEARCH person found on the premises who were not named in the warrant.
Searches on probationers
Where statute provides that probationer consents Court has upheld search of person and home even where no reasonable suspicion
Seizure based on Plain Feel
Incident to a Terry stop, officer may seize any item reasonably believes is contraband based on its "plain feel"
Seizure of Funds
Right to counsel does not forbid the seizure of drug money and property obtained with drug money, even where defendant was going to use such money or property to pay an attorney.
Self Defense - non-deadly force rule
A victim may use non-deadly force in self-defense any time s/he reasonably believes that force is about to be used on him/her.
Sentence after appeal (upon new trial)
1) Def may not be given a harsher sent on retrial after successful appeal.
2) Usual course after successful appeal is remand for new trial.
Standard for reviewing improperly obtained evidence to admit at trial
Harmless error test
Standard for the right to a "speedy trial"
TOTC test.
Factors include:
- length of delay
- reason for delay
- whether D asserted the right
- prejudice to the D
Standard of proof for prosecuting malice crimes
D recklessly disregarded an obvious or high risk that the particular harmful result would occur (note: these crimes are not open to the specific intent defenses)
Standard required for administrative searches (and two exceptions)
- Need a showing of a general and neutral enforcement plan to secure warrant
- EXCEPTIONS: contaminated food and highly regulated industries
State of mind for battery
Intent not required; criminal negligence sufficient
Statements obtained in violation of Miranda, but otherwise voluntary may be used how
To impeach defendant's trial testimony
Statutory Modification of Common Law Classifications
All murders are 2nd degree unless the prosecution proves one of the following:
1. Deliberate and premeditated
2. First degree felony murder
3. other ways as the statue may indicate - such as lying in wait, poison or torture
Strict liability statutes
If the crime is administrative, regulatory, or a moral crime. And no state of mind on the face, then statute is strict liability offense.
Substantive ways to attack a pre-trial identification:
1. Denial of right to counsel
2. Denial of due process
Successful conspirators can be convicted of
1. The criminal conspiracy
AND
2. The completed crime
Technologically enhances search of homes
Issue: is the technology in question in general public use
Test for whether someone has a fourth amendment right in a given situation:
1. Was the search GOVERNMENT CONDUCT? (Private action does not implicate the 4th Amendment.)
2. Did the person have an REOP? (Did they have standing to object to the S/S?)
The "situs" of the crime is defined by
1. where the proscribed act (or omission) takes place
OR
2. the place of harmful result
The levels of mens rea?
1) Purposely: conscious object to commit crime
2) Knowingly
3) Recklessly: knows of a substantial/unjustifiable risk and disregards
4) Negligently: fails to be aware of a substantial/unjust risk
The threat of imminent death or great bodily harm (2 requirements)
1. D must reasonably believe the threat exists
AND
2. Threat must be a present one
Things held out to the public
1. Sound of your voice
2. Handwriting
3. Paint on car
4. Smell of luggage
5. Account records at bank
6. Car's movement
7. Anything visible in open fields
8. Anything visible from a flyover
9. Garbage set out on curb for collection
To detain for a Stop and Frisk police must have
- Stop: Reasonable suspicion supported by articulable facts of criminal activity
- Frisk: reasonable suspicion detainee is armed and dangerous
To what is voluntary intoxication a defense?
The specific intent crimes + inchoate crimes
-1st degree murder, assault, larceny, robbery, burglary, forgery, false pretenses, embezzlement
Transferred Intent
EX - A shoots at B, intending to kill him but hits C instead. Intent to kill B is transferred to C and A is guilty of murdering C. Also, attempted murder of B.

BUT: If C is only wounded then A is not guilty of the attempted murder of C.
Trier of fact to determine aggravating factors justifying imposition of death must be
Jury (not a judge)
Two elements to Entrapment
1. Criminal design originated with law enforcement
AND
2. Defendant must NOT have been PREDISPOSED to commit the crime
(vary narrowly interpreted)
Two malice crimes
1. Common law murder
2. Arson
Two provisions of the Bill of Rights not held binding on the states
1. Right to indictment by a grand jury
2. Prohibition against excessive bail
Unanimity of jury
No right to a unanimous verdict (9-3 okay)
Under enterprise liability, corporations may be held liable under the following conditions
1. Acts within scope of office (look for agent acting on behalf of corp.)
OR
2. Superior Agent rule (agents sufficiently high to presume acts reflect corp. policy)
Under the M'Naghten Rule a D is entitled to an acquittal if
Lacked the ability at the time to know the wrongfulness and understand the nature and quality of his actions
Unreliable ear exception to wiretapping/eavesdropping warrant rule
You take the risk that person you talk to will consent to government monitoring convo or will be wired themselves
Use of informers to establish probable cause - sufficiency established by
Totality of the circumstances; reliability, credibility NOT a prerequisite
Use of informers/informants -- ok or not for warrant purposes? Rule?
Police don’t have to rely on own observations to get warrants; USE OF INFORMERS IS OK.

Rule: You can have a valid warrant based in part on an informer’s tip, even though the informer is anonymous.
Use of Non-deadly force in self-defense
One who is w/o fault may use non-deadly force in self-defense. There is no duty to retreat.
Use of Peremptory Challenges for Racial and Gender Based Discrimination
Rule: It is unconstitutional for prosecutor/defense to exercise peremptory challenges to exclude prospective jurors on account of race or gender.
Use of preemptory challenge on the basis of race or gender
Unconstitutional for either side to exercise preemptory to exclude on account of race or gender
Uttering - definition
Uttering consists of offering as genuine an instrument that may be the subject of forgery, and is false, with intent to defraud.
Validity of imprecise warrant based on precise affidavit
Not valid; Warrant must be precise on its face
Validity of pretextual stops
Valid to stop where traffic law violated even where ultimate motive is to investigate whether some other law violated
Venire must be selected from
A representative cross-section of the community
Voluntariness of confessions determined in light of
Totality of circumstances
If an involuntary confession is entered into evidence, the harmless error test applies.
Voluntary assumption of care
Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.
What are the key words for the various tests for insanity defense?
1 - M'Naghten - D doesn't know right from wrong.
2 - Irresistible impulse - an impulse the D cannot resist;
3 - Durham-but for the mental illness, the D would not have done the act.
4 - ALI or MPC -- combination of M'Nagten and irresistible impulse.
Warrant requirement for arrests
In public, generally not required, even if there is time to get a warrant
Was there a valid warrantless search and seizure?
(1) Consent?
(2) Search Incident to lawful arrest?
(3) Plain View?
(4) Stop and Frisk?
(5) "Automobile" exception?
(6) Hot Pursuit?
(7) Evanescent Evidence?
(8) Exigent circumstances/emergency?
What a judge has to tell the defendant ON THE RECORD if the defendant pleads guilty:
1. The nature of the charge
2. The max authorized sentence and any mandatory minimum sentence
3. Tell the def that they have a right to plead not guilty and demand a trial
4. Tell def that by pleading guilty, they are waiving the right to trial
What are the Constitutional requirements for number and unanimity of jurors?
Minimum # of jurors = 6. If use 6, they have to be unanimous.
No federally-protected right to a unanimous verdict of 12-person jury. Votes of 10-2 and 9-3 have been upheld by SC.
What constitutes a seizure of the person
When a reasonable person would believe that he is not free to leave (requires a physical application of force or a submission to show of force)
What constitutes government conduct for purposes of a search/seizure?
1. Publicly paid police – on or off duty
2. Any private indiv acting at the direction of the public police
3. privately paid police are NOT government conduct UNLESS they are deputized with the power to arrest you
What constitutes interrogation?
Words or conduct by police that they should know would likely elicit a response from the defendant. Routine booking questions are NOT interrogation.
What Constitutional Rights are not binding on the states?
Right to Indictment by grand jury for capital and infamous crimes.

Right against excessive bail (unsure - most states have their own provisions).
What crimes "merge"?
Solicitation + completed crime
Attempt + completed crime
But not conspiracy + completed crime.
What does the Def have to show to prove a violation of DP based on the prosecutor's duty to disclose exculpatory information?
1. That the evidence is favorable to him b/c it impeaches or is exculpatory

2. prejudice has resulted (eg, the outcome of the case would likely have been different had the evidence been presented)
What elements are required in a crime?
1) Actus reus
2) Mens rea
3) Concurrence between the two
4) Causal connection
5) Harm
What happens if a defendant breaches a plea bargain agreement?
Rule: When a def. breaches a plea bargain agreement, the plea and sentence are vacated, and original charges can be reinstated.
What is aiding and abetting?
GR: one who aids, counsels, commands, or encourages another in the commission of a crime & is present at commission, generally guilty of aiding and abetting

EX: members the statute sought to protect generally exempt from liability
What is the effect of the Miranda violation?
The evidence obtained in violation of Miranda is inadmissible at trial (exclusionary rule). The statements may, however, be used to impeach defendant's trail testimony, but not as evidence of guilt.
What rights does the defendant have in grand jury proceedings?
Proceedings are secret.

Def has no right to appear, no right to send witnesses, and no right to counsel present. The defendant must appear if called, but CAN refuse to answer specific questions on the grounds of self-incrimination.
What will break the causal chain to nullify the fruit of the poisonous tree doctrine
1. Independent source
2. Intervening act of free will by the D
OR
3. Inevitable discovery
When a defendant will NOT be allowed to withdraw a guilty pleas:
1. it was an “intelligent choice”
2. it was a choice made from among alternatives
3. it was on advice of a competent attorney
When are Miranda warnings required?
They are required prior to interrogation by police (if in custody and accused of a crime). They are only necessary if the defendant knows he's being interrogated by a government agent.
What kind of defect is always sufficient to quash a grand jury indictment?
Exclusion of members of a minority group
What kind of sentence can be given a defendant at a retrial that occurs after a successful appeal?
Rule: def may not be given a harsher sentence on retrial after a successful appeal

(Why: Avoid chilling the exercise of the right to appeal.)
What kind of statements does Miranda apply to?
Inculpatory AND exculpatory statements.
When can station house detention occur?
Police need PC to arrest you in order to compel you to come to the police station for either fingerprinting OR interrogation
When does 6th Amendment Right to Counsel exist
At any pot-charge lineup or showup; NOT for a photo identification
When does a pre-trial ID technique raise the right to counsel?
Post-charge line-ups & show-ups give rise to right to counsel

There is NO right to counsel when victims/witnesses are shown photographs!
When does a pre-trial ID technique violate due process?
When a lineup is:
1. unnecessarily suggestive, &
2. substantially likely to produce a misidentification
When does a state have jurisdiction over a crime?
if the state is the legal situs of the crime
When does double jeopardy attach at a jury trial? at a bench trial?
Attaches at a jury trial when the jury is sworn

Attaches at a judge trial when the first witness is sworn
When is duress a defense to a crime?
Duress is a defense to a crime other than a homicide that the D reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family if he did not commit the crime.
When is entrapment a defense?
Entrapment exists only if 1. the criminal design originated w/ law enforcement officers and 2. the Defendant was not predisposed to commit the crime prior to contact by the government.
When does the right to a jury trial attach?
Whenever D is tried for an offense for which the maximum authorized sentence EXCEEDS 6 months.

EXAM TIP: “up to” or “including” 6 months creates NO Constitutional right to a jury trial.
When does the right to a speedy trial attach?
When the Defendant has been ARRESTED or CHARGED. If neither of these has happened, then the right does NOT attach.
When is a defendant liable for co-conspirators' crimes?
A conspirator may be held liable for crimes committed by other conspirators if the crimes were committed in furtherance of the objectives of the conspiracy and were foreseeable.
When is a Miranda warning required?
When someone is
(1) in CUSTODY and
(2) there is INTERROGATION
Withdrawal as a defense to conspiracy
Not a Defense: the crime is complete as soon as the agreement is made and the overt act taken
Identity of informer
May remain anonymous
If a juvenile court adjudicates a child a delinquent, can he be tried as an adult for the same behavior?
No - jeopardy has attached.
What is the remedy for an Unconstitutional identification?
Exclusion of the in-court identification - but this is rarely granted.
What is the type of strict liability offenses?
Strict liability offenses are administrative, regulatory, or deal with morality. Typically, a statute with no adverbs.

Example: speeding, statutory rape, selling liquor to minors, and bigamy (some jxd)
When does jeopardy attach?
Jeopardy attaches in a jury trial at the empaneling and swearing of a jury. In a bench trial, when the first witness is sworn. In juvenile proceedings, when the proceeding is commenced. Jeopardy doesn't attach in civil proceedings.
When/what is an accomplice liable for?
Who is an accomplice?
A person actively involved in committing a crime is liable for the crime itself and all other foreseeable crimes. (can be liable for the crimes of his partner)

An accomplice is someone who is actively aiding, abetting , or counseling a crime.
Where solicitor proceeds far enough to be liable for attempt, what happens?
1) Solicitation merges with attempt
When is the right to an unbiased judge violated?
When the judge has either
(1) a financial interest in outcome of case OR
(2) actual malice against def.
Exam Tip: It is NOT when a judge warns a def that if show up in court again, they'll get the max
Who has authority to consent to a search of a home?
Any person with apparent equal right to use or occupy the property.

Where 2 or more people have equal right to use a piece of property, any ONE of them can consent to its warrantless search.
Who may consent
Any person with an apparent equal right to use or occupy the property
When does the right to a jury trial attach for criminal contempt proceedings?
If the SUM of the sentences for criminal contempt exceeds six months, the alleged contemptor has the right to a jury trial.

(There is no right to jury trial for civil contempt proceedings)
Voluntary intoxication is no defense to
Crimes requiring malice, recklessness or negligence, or to strict liability crimes
Immigration Enforcement Actions
Immigration Services Division may do a "factory survey" of the workforce in a factory to determine citizenship of each employee. Moreover, even illegally obtained evidence may be used in a civil deportation hearing.
Home arrest warrant requirement
Must have an arrest warrant to effect a non-emergency arrest in a home
Homicide - 3 classifications at Common Law
1. Justifiable
2. Excusable
3. Criminal
Legal duty to act can arise from the following sources
1. Statute (file taxes)
2. Contract obligation (lifeguard)
3. Certain relationships(parent-child/spouse)
Legitimate expectation of privacy where (3); (automatically confers standing)
1. Owned or had a right to possess place searched
2. Place searched was in fact person's home
3. Overnight guest
Liability of Co-conspirator for crimes committed by other conspirators
Two requirements
1. crimes were committed in furtherance of the conspiracy
2. crimes were foreseeable
Liability of one conspirator for crimes committed by other conspirators - two requirements
1. Crimes were committed in furtherance of the conspiracy AND
2. They were foreseeable
Limitations on the Exclusionary Rule (i.e. not applicable to what)
1. Grand Juries
2. Civil Proceedings
3. Internal Agency Rules
4. Parole Revocation proceedings
5. Good faith reliance
6. Defective search warrant
7. Clerical error
Limitation on scope of Miranda warnings
Inapplicable to grand jury hearing
List of things in which you do NOT have an REOP:
- Sound of your voice
- Style of your handwriting
- Paint on the outside of your car
- Account records held by a bank
- Monitoring location of your car on public street or in your driveway
- Anything that can be seen across the open fields
Malice
1. Intent to kill
2. Intent to inflict great bodily injury
3. Reckless disregard to an unjustifiably high risk to human life
OR
4. Intent to commit a felony
Malice aforethought - definition
Malice aforethought exists if the defendant has ONE of the following:
1.intent to kill,
2.intent to inflict great bodily injury
3.awareness of an unjustifiably high risk to human life
4.intent to commit a felony
Malice crimes
Common law murder and arson
D recklessly disregarded an obvious or high risk that the particular harmful result would occur
Manslaughter.
Voluntary: some form of passion, provoked killing
Involuntary: criminally negligent killing or unlawful act (misdemeanor murder, unenumerated felony - not BARK)
May have standing where (2)
1. Ownership of property seized
2. Present at search
May limit liability for subsequent acts of other members of the conspiracy if
1. Perform an affirmative act notifying ALL members
AND
2. Must be done in time for them to abandon their plans
May the prosecutor comment on Defendant's failure to produce a witness supporting the alibi?
No - and he may not comment on the failure to present an alibi itself.
May use deadly force if (3 things)
1. Without fault
2. Confronted with unlawful force
AND
3. Threatened with imminent death or great bodily harm
MERGER
Generally no merger at common law. solicitation merges into the underlying offense. Conspiracy does not.

Never merge crimes w different V
Minimum number of jurors required
Six (must be unanimous)
Mistake of fact defense
Depends on mental state of the crime charged

1 - Specific intent: Any Mistake of Fact (reasonable or unreasonable)
2 - Malice & general intent: Reasonable Mistakes Only
3 - Strict Liability: Never
Mistake of Facts as a defense to malice or a general intent crime
Reasonable mistake only
Mistaken offense for arrest
Will not invalidate so long as officer had some other grounds on which to base probably cause
M'Naghten Rule for Insanity
Disease of the mind that caused a defect such that the D lacked the ability at the time of the crime to either:
1. know the wrongfulness of his actions or
2. understand the nature and quality of his actions
MPC insanity
Def lacked ability to conform conduct to requirements of law
Need for Miranda warnings triggered by
1. Custody
AND
2. Interrogation
Neutral and detached magistrate requirement
- State attorney general NOT
- Clerk of court may issue for violations of city ordinances
No criminal liability based on infancy under age
Seven
Non-deadly force self defense requires
Requires D reasonably believe force is about to be used on them.
Non-defenses to solicitation
- Potential defense
- Impossibility and withdrawal
- Exemption from intended crime (minor female not guilty of soliciting statutory rape)
Not a violation of Double Jeopardy where statute provides
Multiple, separate punishments for single act
Requirements for a valid, warrantless consent search:
A warrantless search is valid if the police have VOLUNTARY and INTELLIGENT consent.

Knowledge of the right not to consent is not a prerequisite.
Waiver of Miranda warnings
Must be knowing, voluntary, and intelligent; look at totality of circumstances; will not be presumed from silence
Waiver of Privilege Against Compelled Self-Incrimination
Criminal defendant, by taking the stand, waives privilege to extent necessary to subject him to any cross-examination. Witness waives privilege only if he discloses incriminating information.
Warrant authorizing a wiretap must meet the following requirements (6)
1. Probable cause of a specific crime
2. Suspected persons to be heard are specifically named
3. Describes with particularity
4. Limited to short duration
5. Provisions for termination
6. Return to court to show conservations intercepted
What is the remedy for a pre-trial ID technique that is found to have violated DP or right to counsel? Can the state defeat this remedy?
Exclusion of the in-court identification.

The state can defeat the claim for a remedy by showing an *independent source for the in-court ID.* (Independent of the lineup - eg, ample oppty to look at person at the time of the crime.)
If a mock robbery results in injuries, what crime was committed?
(a) robbery
(b) larceny
(c) assault
(d) no crime
(e) robbery, larceny, and assault
(d) No crime because the mock robbery aspect negates all intent
-Robbery = larceny + assault, so couldn't be robbery + either of them
If the guilty plea is entered in response to Prosecutor's threat to charge the defendant with a more serious crime, is the plea involuntary?
No, not without other evidence of involuntariness. There is no prosecutorial vindictiveness here.
If you aim to shoot A, and hit B instead (by accident), what doctrine covers the killing of B? What crimes can you be charged with?
Transferred intent.

The intent to kill one person is transferred to govern the death of the person you actually killed.

Murder and attempted murder. (** There are always 2 crimes in a transferred intent scenario. No merger b/c there are 2 victims.)