Criminal Law

• 1) a homicide
• 2) committed with malice

• 1) killing of another
• 2) caused by the defendant

• By:
• 1) statute
• 2) contract
• 3) relationship
• 4) voluntary undertaking (had a duty to act)

• (Vicarious liability); when acting as:
• 1) solicitor
• 2) conspirator
• 3) accomplice; OR

under the felony-murder rule

the 3rd party act must also be foreseeable

• 1) intent to kill (either through defendant's words or through the use of a deadly weapon in a deadly manner)
• 2) intent to inflict great bodily harm (serious bodily injury)
• 3) depraved heart (reckless indifference to a known high risk of death or serious bodily injury); OR
• 4) the felony-murder rule

a homicide committed during the perpetration of an inherently dangerous felony

• 1) perpetration of the felony from attempt until felon reaches a place of temporary safety
• 2) an inherently dangerous felony = Burglary, Arson, Rape, Robbery, and Kidnapping (BARRK)
• 3) felony must be independent from the act that caused death
• 4) felony must be the proximate cause of the homicide

A homicide committed without malice in the following 3 circumstances:

• 1) intent to inflict slight bodily injury
• 2) criminal negligence (more than ordinary negligence but less than depraved heart)
• 3) "misdemeanor manslaughter rule"

Defendant kills while committing a non-inherently dangerous felony (malum in se crime as opposed to malum prohibitum)

The defendant may use deadly force to protect against an imminent deadly attack. The deadly force must be:

• 1) reasonable
• 2) necessary; AND
• 3) there is no duty to retreat, unless the defendant is the initial aggressor and safe retreat is available

Minority rule: Defendant must retreat before using deadly force if safe retreat is available, unless in his home, a police oficer, or victim of violent felony

1) If the defendant initial aggressor withdraws (clearly communicates to victim intent to stop fighting)

OR

2) If the defendant initially used non-deadly force and is now faced with an attacker suddenly using deadly force

AND

If safe retreat is available, the initial aggressor must retreat before using deadly force

Yes, provided that the use of deadly force is 1) reasonable and 2) necessary to defend another

Majority rule: a defendant may claim defense of others if the victim reasonably appears to have the right to use deadly force, even if the "other" does not actually have that right

Minority rule: a defendant can use no more force than the person they are defending has the right to use

Yes, so long as the use of deadly force is 1) reasonable and 2) necessary

A police officer or private person may also use deadly force if reasonably necessary to prevent/apprehend/arrest a dangerous felon.

A private citizen, however, can only use deadly force if the person apprehended with deadly force is actually guilty of the dangerous felony (a private citizen is not allowed to make a reasonable mistake)

A defendant may use deadly force based on a reasonable mistake with respect to:

• 1) self-defense
• 2) defense of others
• 3) crime prevention

BUT

Only a police officer can use deadly force to apprehend or arrest based on a reasonable mistake

Generally, you cannot, except that deadly force can be used to protect occupants of home from a violent intruder or if the intruder intends to commit a felony inside (must also be reasonable and necessary)

Yes; common law rules apply

• 1) Under age of 7: no criminal liability
• 2) Between age 7 and 14: rebuttable presumption of no criminal liability
• 3) Over 14: treated as an adult

• 1) Defendant did not know the wrongfulness of his act; OR
• 2) Defendant could not understand the nature and quality of his acts

(Focus on cognitive impairment, not volitional ability)

Defendant was unable to control his conduct or conform his conduct to the law

(Focus on volitional ability, not cognitive impairment)

Defendant lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law

(Focus on both volitional and cognitive impairment)

Defendant is not guilty if his crime was the product of a mental disease or defect

When a defendant 1) voluntarily and 2) knowingly consumes an intoxicating substance

It cannot be a defense to crimes requiring no intent (strict liability), general criminal intent, or malice

It can negate specific intent, but only if the defendant is so intoxicated that hecannot form the specific intent required for the crime.

It can also preclude a finding of deliberation if the Defendant is charged with First Degree Murder.

When a defendant 1) involuntarily or 2) unknowingly consumes an intoxicating substance.

It is a defense to all crimes if it renders the defendant "insane" under the applicable test.

1) If the defendant experiences adequate provocation (causing both subjective and objective passion and no "cooling off" occurred)

2) If the defendant intentionally kills the victim under good faith, but with an unreasonable mistaken belief as to self-defense, defense of others, or crime prevention

1) Premeditated and deliberate intent to kill

Premeditated: The intent to kill is premeditated if the defendant had time to think about killing the victim before doing so

Deliberate: The intent to kill is deliberate if the defendant acted in a calm and cool frame of find

OR

2) Felony-murder rule: a murder that satisfies the felony-murder rule AND is based on on of the specified felonies in the state's first degree murder statute (BARRK) will be sufficient for first-degree murder

(Intent to kill is required for first degree murder)

Murder: Homicide with malice and no justification, excuse or mitigation (first-degree murder if intent to kill; otherwise second-degree murder)

Involuntary Manslaughter: Homicide without malice and no justification or excuse

Voluntary Manslaughter: Homicide with malice but with mitigation (adequate provocation or good faith mistake)

1) Attempted battery: Defendant attempts (but is unsuccessful) to cause imminent harmful contact with victim (specific intent crime)

2) Intentional creation of reasonable apprehension of contact: Defendant attempts to cause victim to reasonably apprehend imminent harmful contact (general intent crime)

The unlawful application of force to another person causing bodily injury or offensive contact

The confinement of another person involving either movement or concealment of the victim. (No ransom required)

• 1) trespassory (w/o consent)
• 2) taking and carrying away (slight movement = enough)
• 3) personal property of another (possession, not ownership)
• 4) with intent to permanently deprive (at time of taking)

The intent to deprive exists if the defendant abandons the victim's property creating a substantial risk of loss

The intent to deprive does not exist if the defendant intends only to borrow the item and return it later

Same definition as larceny, but the taking occurs with the victim's apparent consent (since it was acquired by the defendant's misrepresentation)

• 1) fraudulent conversion
• 2) of property of another
• 3) by one in rightful possession (victim must first voluntarily give the defendant rightful possession of the property that the defendant later fraudulently converts)

• 1) acquisition of title (ownership)
• 2) to another's property
• 3) by a false representation (for title, not possession)
• 4) with intent to defraud

• 1) larceny committed
• 2) from the victim's person or presence (immediate vicinity)
• 3) by force or threat of force of immediate bodily harm (threats of future bodily harm, or immediate or later non-bodily harm are not sufficient for robbery, but would be sufficient for extortion)

• 1) the burning (charring of some part of the structures)
• 2) of a protected structure (all structures, i.e. residential, industrial, commercial)
• 3) of another (rightful possession of another)
• 4) with malice (intent to burn OR with knowledge of extremely high risk of the structure burning)

• 1) trespassory (w/o consent)
• 2) breaking (physical movement of a door or window to enter structure) (fraud = sufficient in majority jurisdictions)
• 3) and entering (some portion of defendant's body must enter structure)
• 4) of the protected structure (any structure)
• 5) of another (structure must be in rightful possession of another)
• 6) at nighttime (most states have eliminated nighttime requirement)
• 7) with intent to commit a felony therein (at time of entry) (a later formed intent to steal does not qualify)

(Specific Intent Crime)

• 1) an act of perpetration (mere preparation not enough, must take a substantial step/be dangerously close)
• 2) with intent to commit intended crime

Attempt merges into the target crime so a defendant who actually commits the intended crime cannot be convicted and punished for both attempt and the intended crime

(Factual impossibility is not a defense; legal impossibility is)

Legal impossibility exists when the acts defendant intends to commit are not a crime in the jurisidiction

Factual impossibility exists when the acts defendant intended to commit would be a crime, if the facts were as defendant believed them to be

• 1) asks or requests
• 2) another
• 3) to commit a crime
• 4) with intent that person solicited commits the crime

(If the party solicited actually commits the crime, the solicitor will also be liable for the crime)

• 1) enter into an agreement (express or implied)
• 2) with another party (all conspirators must actually agree = majority rule) (Wharton's Rule -- if target crime requires 2 parties, then no conspiracy unless 3 or more parties)
• 3) for an unlawful objective (crime or fraud); AND
• 4) some overt act is performed (just about anything)
• 5) in furtherance of the unlawful objective

(All conspirators are liable for any crime committed by another conspirator so long as the crime was 1) reasonably foreseeable and 2) in reasonable furtherance of the conspiracy)

• 1) Withdrawal
• 2) Impossibility

(NOT merger; conspiracy does not merge into the target crime)

• 1) timely communicate (must communicate intent to withdraw before target crime occurs)
• 2) all other co-conspirators
• 3) Defendant is no longer a participant in the conspiracy

Effect = liable for conspiracy, but not the target crime

(Minority rule = if withdrawing conspirator goes to police in time to permit police to stop target crime, conspirator will not be liable for conspiracy OR target crime)

One who, with intent to commit crime, causes crime to occur

One who, with intent for crime to be committed, aids, counsels, or encourages the principal (silent approval is not sufficient)

Liability: all accomplices AND principals are liable for crimes the principal committed that accomplice assisted, counseled or encouraged

(Also liable for other crimes committed by principal so long as other crimes were foreseeable)

One who, with intent to help a felon escape or avoid arrest or trial, receives, relieves, or assists a known felon after the felony has been completed

Liability: not liable for crimes committed by principal, but instead for a separate crime of "obstructing justice"

A defendant's criminal liability (except an intentional homicide) is excused if the crime is committed under the threat of imminent death or bodily harm

• 1) criminal plan originated with the government
• 2) defendant was not predisposed to commit the crime prior to the contact with the government

Reasonable mistake of fact:

If defendant makes a reasonable mistake of fact or is ignorant of a fact that negates the required mental state for the crime, defendant is not guilty of that crime

Unreasonable mistake of fact:

If defendant is mistaken or ignorant of fact, but the mistake is unreasonable under the circumstances, then the mistake is a defense only if the crime is a specific intent crime

(Mistake of law is not a defense)

Unreasonable search and seizure

• 1) Privilege against compulsory self-incrimination
• 2) Prohibition against double jeopardy

• 1) Right to a speedy trial
• 2) Right to a trial by jury
• 3) Right to confront witnesses
• 4) Right to assistance of counsel

Cruel and unusual punishment

(Covers the death penalty and prisoner rights)

Someone who has been the victim of an illegal search or a coerced confession can have the product of that illegal search or that coerced statement excluded from any subsequent criminal prosecution

1) Does not apply to grand jury proceedings (but a grand jury witness may be compelled to testify based on illegally seized evidence)

2) Not an available remedy in civil proceedings

3) To qualify for exclusion, the search must either violate the federal constitution or a federal statute

4) Not an available remedy in parole revocation proceedings

5) Does not apply to the use of excluded evidence for impeachment purposes (only defendant's trial testimony can be impeached, not the testimony of other defense witnesses)

(All illegally seized real or physical evidence may be admitted to impeach the credibility of the defendant's trial testimony)

6) Not an available remedy for violations of the knock-and-announce rule in the execution of search warrants

Not only will illegally seized evidence be excluded, but all evidence obtained or derived from police illegality will also be excluded

(Does not apply to Miranda violations unless the police act in bad faith in obtaining such information)

1) Government could show that it had an independent source for that evidence

2) The inevitable discovery of the evidence

3) Intervening acts of free will on part of the defendant

Not necessarily (they will apply the harmless error test)

The harmless error test

Under the test, a conviction will be upheld if the conviction would have resulted despite the improper evidence

Probable cause

No

But the non-emergency arrest of an individual in his home does require an arrest warrant

Probable cause

When the police briefly detain a person even when they lack probable cause to arrest

Reasonable suspicion, supported by articulable facts of criminal activity

(Reasonable suspicion depends on the totality of circumstances)

(The police may stop a car if they have reasonable suspicion that the law has been violated, but checkpoint roadblocks are an exception to the rule)

• 1) Governmental conduct?
• 2) Reasonable expectation of privacy?
• 3) Did the police have a valid search warrant?
• 4) If the warrant is not valid, does an officer's good faith defense save the defective search warrant?
• 5) Do any of the exceptions to the warrant requirement apply?

• 1) Publicly paid police (on or off duty)
• 2) Any private individual acting at the direction of the public police

Not unless they are depotized with the power to arrest

(Examples of privately paid police are store security guards, subdivision police, or campus police)

1) If you own the premises searched

2) If you live on the premises searched (whether or not you have ownership interest)

3) If you are an invited overnight guest at a place

4) If you own the property seized, you have standing only if you have a reasonable expectation of privacy in the item or area searched

(Anything you hold out to the public every day)

• 1) The sound of your voice
• 2) The style of your handwriting
• 3) The paint on the outside of your car
• 4) Account record held by a bank
• 5) Monitoring the location of your car on a public street or in your driveway
• 6) Anything that can be seen across the open fields
• 7) Anything that can be seen from flying over in the public airspace
• 8) The odors emanating from your luggage or car
• 9) Your garbage set out on the curb for collection

• 1) Probable cause
• 2) Particularity

A fair probability that contraband or evidence of a crime will be found in the area searched

The warrant must state with particularity the place to be searched and the things to be seized

By the totality of the circumstances

(An informant's reliability/credibility and basis of knowledge are both relevant in making this determination)

Yes

(If exigent circumstances exist)

1) If knocking and announcing would be dangerous, futile, or inhibit the investigation

2) If knocking and announcing would risk destruction of the evidence (i.e. flushing drugs down the toilet)

General rule is that good faith reliance on a search warrant overcomes defecs with the probable cause or particularity requirements

1) Affidavit is so lacking in probable cause that no reasonable police officer would have relied on it

2) Affidavit is so lacking in particularity that no reasonable officer would have relied on it

3) Police officer or prosecutor lied to or misled the magistrate when seeking the warrant

4) If the magistrate is biased and has therefore wholly abandoned his neutrality

• 1) Search incident to arrest
• 2) Automobile exception
• 3) Plain view exception
• 4) Consent
• 5) Stop and frisk
• 6) Evanescent evidence

1) Arrest must be lawful

2) Arrest and search must be contemporaneous in time and place

3) What can be searched? The person and the areas to which he can reach either to procure a weapon or to destroy evidence

4) Police may search interior of the auto incident to arrest ONLY IF

• a) the arrestee is unsecured and still may gain access to the vehicle OR
• b) the police reasonably believe that evidence of the offense for which the person is arrested may be found in the vehicle

Justifies a warrantless search if an officer faces an emergency that threatens the health or safety of an individual or the public

1) Probable cause (only if the police have probable cause before searching anything or anybody)

If there is probable cause, they can search the entire car, including the entire interior compartment and the trunk.

Also, if there is probable cause, the police may open any package, luggage or other container which could reasonably contain the item they had probable cause to look for whether that package is owned by the passenger or the driver

The probable cause necessary to justify the warrantless search of an auto under the automobile exception can arise after the car is stopped. BUT the probable cause must arise before anything or anybody is searched.

1) Police officer must be legitimately present at the location where he or she does the viewing of the item seized

2) Must be immediately apparent that the item is contraband or fruit of a crime

For consent to be valid, the consent must voluntary and intelligent

3P consent: where 2 or more people have an equal right to use a piece of property, either can consent to its warrantless search. However, if both people are present and one person consents to the search and the other does not consent, then the one who does not consent controls.

1) A Terry stop is a brief detention for the purpose of investigating suspicious conduct

2) The legal standard for stopping is reasonable suspicion (less than probable cause)

3) A Terry frisk is a pat down of the outer clothing and body to check for weapons

4) The justificatio for frisking is concern for officer safety

Evidence that might disappear quickly if the police took the time to get a warrant

If the police are not within 15 minutes behind the fleeing felon, it is not a valid hot pursuit exception

If the police are in hot pursuit, they can enter anyone's home w/o a warrant, and any evidence they see in plain view is admissible

Before incarceration of an arrestee, the police may search 1) the arrestee's personal belongings and/or 2) the arrestee's entire vehicle (including closed containers)

1) Public school children engaged in extracurricular activities can be randomly drug tested

2) Warrantless searches of public school children's effects, such as purses and/or backpacks is permissible to investigate violations of school rules

1) It offers a moderate chance of finding evidence of wrongdoing; and

2) The measures adopted to carry out the search are reasonably related to the objectives of the search; and

3) The search is not excessively intrusive

Yes

1) (Unreliable ear) Everybody in this society assumes the risk that the person to whom he is speaking will either consent to the government monitoring the conversation or will be wired and therefore has no 4th Amendment objection on the basis that it was a warrantless search

2) (Uninvited ear) A speaker has no 4th Amendment right if she makes no attempt to keep the conversation private

1) You have a right to remain silent

2) Anything you say can be used against you in court

3) You have the right to an attorney

4) If you can't afford an attorney, one will be appointed for you if you so desire

Custodial interrogation

You are in custody if, at hte time of the interrogation, you are not free to leave (includes your home)

(Probation interviews and routine traffic stops are not custodial)

Interrogation is defined as any conduct where the police knew or should have known that they might elicit an incriminating response from the suspect

(Miranda warnings are not required prior to the admissibility of a spontaneous statement)

Must be:

• 1) Knowing
• 2) Voluntary
• 3) Intelligent

Courts will employ a totality of circumstances test in making this determination

It must be unambiguous

Police may reinitiate questioning after the defendant has invoked the right to silence if they wait a significant amount of time, the defendant is re-Mirandized, and the questions are limited to a crime that was not the subject of the earlier questioning

It must be unambiguous

If the accused invokes his right to counsel, all questions must cease until (1) the accused is given an attorney or (2) the accused iniitates further questioning

When a suspect invokes his Miranda rights and requests an attorney

It is not offense specific and thus applies to the entire process of custodial police interrogation

The 6th Amendment right to counsel is offense specific, meaning counsel would only need to be present if the Defendant were being asked questions about the specific case for which Defendant has retained counsel

1) Denial of the right to counsel (post-charge lineups and show-ups give rise to the right to counsel, but no right to counsel when police show a victim or witness photographs)

2) Denial of due process (when pretrial identification techniques are so unnecessarily suggestive and so substantially likely to produce a misidentification that they deny due process of law)

• 1) Taking of blood samples
• 2) Taking of handwriting samples
• 3) Pre-charge lineups
• 4) Brief recess during questioning at trial
• 5) Parole and probation revocation proceedings
• 6) Taking of fingerprints

Exclude the in-court identification unless the State can show it had an adequate independent source for that in-court identification

(The most common independent source is that the victim or witness had an adequate opportunity to observe the Defendant at the time of the crime)

• 1) Bail issues are immediately appealable
• 2) Preventive detention is Constitutional

1) Exclusion does not apply to the conduct of grand juries. Thus, a grand jury witness may be compelled to testify based on illegally seized evidence.

2) The proceedings of grand juries are secret. Defendant has no right to appear and no right to send in witnesses.

Whether willful or independent, it violates the Due Process Clause and may be grounds for reversal of a conviction

1) If the evidence is foreseeable to the defendant; and

2) Prejudice has resulted, meaning there is a reasonable probability that the result would have been different had the information been disclosed (strongly supported = not prejudicial)

1) Right to an unbiased judge

2) Right to jury trial

3) Right to counsel

4) Right to confront witnesses

Having a financial interest in the outcome of the case or some actual malice against the defendant

Anytime the defendant is tried for an offense for which the maximum authorized sentence exceeds 6 months

1) The minimum number of juror permissible is 6. If a court uses this minimum number of jurors, the verdict must be unanimous.

(10-2 and 9-3 OK in 12-juror verdict)

The right to have the jury pool reflect a fair cross section of the community, BUT no right to have the empanelled jury reflect a fair cross section of the community

A peremptory challenge is a challenge to exclude a prospective juror for any reason whatsoever

BUT it is unconstitutional for the prosecutor or the defense to exercise peremptory challenges to exclude potential jurors on account of their race or gender.

To all critical stages of a prosecution, including trial

There must be deficient performance by counsel and, but for such deficiency, the result of the proceeding would have been different

Typically such a claim can only be made out by specifying particular errors of trial counsel

The waiver of trial counsel must be knowing and intelligent, and he must be competent to proceed pro se

(A defendant can be found mentally competent to stand trial, yet incompetent to represent himself, as determined by the trial judge's discretion)

(Not an absolute right)

The absence of face-to-face confrontation between the defendant and accuser does not violate the 6th Amendment when preventing such confrontation serves an important public purpose AND the reliability of the witness testimony is otherwise assured.

A disruptive defendant may be removed from the courtroom, thereby relinquishing his right of confrontaiton

1) The nature of the charge

2) The judge must tell the defendant the maximum authorized penalty and any mandatory minimum penalty

3) The judge must tell him that he has a right to plead not guilty and to demand a trial

4) All of this must be on the record

1) The plea was involuntary (a plea is not involuntary merely because it was entered in response to the prosecution's threat to charge the defendant with a more serious crime)

2) Lack of jurisdiction

3) Ineffective assistance of counsel

4) Failure of the prosecutor to keep an agreed-upon plea bargain

True

True

False, all relevant mitigating evidence must be admissible or the death penalty statute is unconstitutional

False, only a jury may determine the aggravating factors justifying imposition of the death penalty.

1) In a jury trial, when the jury is sworn

2) In a bench trial, when the 1st witness is sworn

(Does not generally attach when the proceedings are civil)

1) Jury is unable to agree upon a verdict

2) Mistrials for manifest necessity (medical emergency)

3) A retrial after a successful appeal is not double jeopardy (But defendant cannot be retried for a more serious offense than he was convicted of at the first trial)

4) Breach of an agreed upon plea bargain by the defendant

True

True, and similarly, if you are first put in jeopardy for the lesser included offense, you cannot later be retried for the greater offense

Exception: If a Defendant is tried and convicted on a charge of battery, and the victim of the battery later dies due to the injuries, the person can also then be prosecuted for murder

False

Anyone in any type of case. Anyone asked a question under oath in any kind of case, wherein the response might tend to incriminate him is entitled to a 5th Amendment privilege.

1) You must assert the privilege the 1st time the question is asked or you will have waived your 5th Amendment privilege for all subsequent criminal prosecutions

2) The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution

3) If the individual responds to the questions instead of claiming the privilege during a civil proceeding, he cannot later bar that evidence on Fifth Amendment grounds

True

False

• 1) a person's blood sample
• 2) a person's handwriting sample
• 3) a person's voice sample
• 4) a person's hair sample

The harmless error test

1) Under grant of immunity

2) No possibility of incrimination (i.e. if the statute of limitations has run on the underlying crime, you are not entitled to a 5th Amendment privilege)

3) Waiver (a criminal defendant who takes the witness stand waives the Fifth Amendment privilege as to all legitimate subjects of cross examination)