criminal fall outline

Criminal Law

Incur formal and solemn pronouncement of moral condemnation of the community

Principles of PunishmentAccomplish primary goal of protecting society and to achieve all of related goals of theories applicable

Retribution- proportionate punishment according to crimeIsolation-Deterrence- utilitarian; only justifiable if results in reduction of crimeGeneral/specific deterrenceEducationRehabilitation

Common Law•Statutory Law•Classifies into felony or misdemeanor.•Model Penal Code•

Sources of Criminal Law

Determining Appropriate SentenceConstitutional Limitations

Bill of RightsA.Proportionality8th amendment: excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted."punishment should fit the crime"

Gravity of offense and harshness of penalty1.Sentences imposed on other criminals in same jurisdiction2.Sentences imposed for commission of same crime in other jurisdictions3.

14th amendment via statesA.Law which abridges privileges or immunities of citizens of USDue processEqual protections of laws

3 Factor Test

SentencingState Law Majority: determinate sentencing (no discretion to corrections officers to reduce sentences based on rehab in prison)Federal Law: Federal Sentencing GuidelinesDeath penalty does not violate constitution; but death penalty for other than murder usually disproportionate

Prohibition on retroactive crimes (Ex Post Facto)

Legislative Intent

Plain Meaning

Statutes should be understandable to reasonable law abiding citizen (cannot be vague)1.Should not delegate basic policy matters to enforcement officers2.Judicial interpretation of ambiguous statutes should be biased in favor of accused (Lenity Doctrine)3.If statutory language is clear then plain meaning governs4.If common law not defined, then meaning assumed intended5.Ejusdem generis: general language follows specific terms in statute. Construe more narrow (I.g. dangerous weapons followed by weapon list. Anything not included is not a dangerous weapon)

6.

Expression of one thing is exclusion of another: enumerating specific items; anything legislature did not include was left out intentionally

7.

Congress legislates with domestic concerns in mind8.

Interpreting Statute

Model Penal Code: does not recognize lenity doctrine. Ambiguity interpreted through purposes of code

General Principles in Criminal Trials

Criminal Fall OutlineSaturday, October 09, 2010

Criminal Pro Final Outline

General Principles in Criminal Trials

Investigation1.Charges (Indictment)2.Pretrial Motions3.Exclusion of evidencea.Preliminary Hearing (probable cause hearing)Trial1.

Process

Jury Instruction1.Motion for judgment of acquittal2.Basis of Appeal (insufficient evidence, improper jury instruction, evidentiary challenge, constitutional challenge)3.Statutory Law

Plea Bargain

Jury Trials: right to jury only applies to non-petty offenses (more than 6 mo)Few as six (federal govt= 12)Substantial majority to convict (fed= unanimous)Jury Nullification: can return acquittal even if believed guilty based on statute immoral, unjust, punished enough, or misbehavior by prosecutor/officers

Proving CaseMost criminal trials law is not in dispute.FactsRaw: who did what to whom, when and why?Normative: mental state determination

Burden of Production: Prosecutor must produce enough evidence that rational trier of fact may determine that elements of the crime have been proved beyond reasonable doubt.

A.

If fails to satisfy burden of production then defendant entitled to directed verdictDefendants Burden of Production: sometimes requires defendant advanced notice of defenses: more than a scintilla of evidence or enough evidence to raise a reasonable doubt on issue of defense claimed.

Burden of Persuasion: Jury determines whose claim is more persuasive.Prosecutors: (Winship Doctrine) person charged with crime presumed innocent: prosecutor burdened with proving every element of crime beyond a reasonable doubt.

Burdens of Proof

Defendants Burden of Persuasion: Prosecution to prove beyond reasonable doubt all affirmative defenses (Massachusetts) If Defendant meets burden of production jury must permit defense to be evaluated. If not jury should reject defense.

State free to legislate whether burden of proof is on defendant on state for particular facts.

MPC: Except for exceptions listed required standard of proof being preponderance of evidence prosecution must prove every element of offense beyond reasonable doubt including conduct that negates an excuse. Prosecutor must prove defenses if defendant meets burden of production.

Challenging CredibilityCredibility Assessment- Attacking Credibility Remembering: memory of witnesses - ask for precise detailsObserving: impeding vision- poor visionTruth telling: show biasCommunication

Fact finding Evidence- Character Evidence

Act of Propensity Evidence:A.FRE 404 Generally prohibits using evidence of character or character traits to prove that a party or witness acted consistently with those traits on a particular occasion.

Mental Propensity and other Uses of CharacterA.Characters poor value in predicting behavior on specific occasion; human tendency to judge based on bad trait.

Using character to establish that someone had particular mental state on particular occasion. (Ronnie has always been peaceful)

Doctrine of Objective Chances: when accused makes mistake, evidence that he or she has been repeatedly claimed to make same mistakes in other instances, can be used to prove that accused in fact was not mistaken in case at hand (date rape) "mistaken consent"

Reputation: people in relevant character speak of your character1.Opinion: someone who knows you well can offer opinion of character traits2.

Forms of Character Evidence


Opinion: someone who knows you well can offer opinion of character traits2.Specific acts: committed certain actions in past suggest deeper personality traits3.

Example: Jonnie charged with assault.Neighbors testify jonnie peaceful person. 2. next door neighbor opinions jonnie is peaceful person. 3. neighbors recall seeing jonnie take hits.

Motive: concerns specific relationship between or among to two or more people that gives a suspect a reason to think or act in a particular way on particular occasion. Motive proven by specific acts. Motive is usually circumstantial evidence to helpprove existence of element.Can be explicitly made element of crime (hate crimes)

Habit: habit is a very frequently repeated response to very specific stimulus, response so frequent as to make it a good predictor of behavior. "always changes blinkers"

Common Plan, Scheme, Design: prior acts relate to broader scheme.

Signature: calling card

Essential Elements of Crime, Claim , or Defense

Exceptions to Act Propensity BarMercy Rule: allows defendant to seek to raise reasonable doubt about his guilt by proving good character. But allows prosecutor to prove bad character.

Pertinent Character Trait of Victim: bad trait of victim

Impeachment: offered for act propensity to impeach witness

Special Rules: Rape Shield: Prohibits defendant to offer character evidence of immoral behavior by victim.

Act+ Mental State+ Result = Crime - Defenses

Common Law Model Penal Code Modern Statute/Trends

Actus Reus

Voluntary Act or omissiona.That causes social harmb.

Voluntary Act

Involuntary act: unconscious acts

Duty based on relationship•Statute•Contract•Assumption of care•Creation of danger•

Omissions: no duty to act in order to prevent harm to another unless

Constructive possession: dominion and control.

Voluntary: any conduct not product of effort or determination of defendant either conscious or habitual. (excluding civil fine or penalty conduct)

Involuntary: reflex, sleep movements, under result of hypnosis, unconscious movements

I.g. introducing drugs into jail must be reasonable foreseeable or

Omissions: law defining offense provides for it. 2. duty to act otherwise imposed by law

Possession: knowingly procured, received thing, acquired control, aware of control for sufficient time.

Status: (alcoholic, drug addict) cannot be criminalized

Mens Rea

Intentionally causes harm. 2. acts with knowledge that harm certain to occur

1.Specific: intent to engage in proscribed conduct

Transferred intent transfers state of mind of crime. (must be same crime for intent)Exception TI: misidentification may not be considered.

(solicitation, attempt, conspiracy, first degree murder, assault, larceny, robbery, burglary, forgery, false pretenses, embezzlement)

General: awareness of acting in proscribed

Purposefully: conscious purpose of causing desired result.Knowingly: aware that result is practically certain to occur. Guilty if finding of willful blindness or deliberate ignorance. If defendant is aware of high probability of fact but avoids or ignores. "ostrich instruction"

Recklessly: awareness that conduct of particular nature will cause particular result. Substantial and unjustifiable risk that constitutes gross deviation from reasonable standard of care.

Negligently: failure to be aware of substantial

Statutory Transferred Intent:


General: awareness of acting in proscribed manner. Volitional doing of prohibited act. (Battery, Rape, Kidnapping, False Imprisonment)Infer all mens rea from conductIf no intent then general intent.

Malice: reckless disregard of known risk(common law murder, arson)

Strict Liability: conscious commission of proscribed act.

Public welfare offenses, statutory rape, selling liquor to minors, bigamy.

Defenses of Mens Rea

Mistake of Fact: honest reasonable belief in existence of facts should make act lawful

Specific: defense if mistake fact disproves specific intentGeneral: Only reasonable mistake

Mistake of law: ignorance law no excuse even if mistake reasonable.

Exceptions: passive crimes or no notice of crime.

Natural and Probable Causes: if natural and probable consequences of actions then jury may infer differently.

Negligently: failure to be aware of substantial risk; gross deviation from reasonable standard of care.Factors of Negligence: 1. gravity of harm 2. probability of harm occurring 3. burden of defendant desisting.

Recklessness implicates subjective fault that defendant was in fact aware of substantial and unjustifiable risk he was taking, but disregarded.

Discards common law distinction between general and specific intent. Limits mens rea to 4 termsRequires application of mens rea to every material element including affirmative defenses.

No strict liability except offenses as violations

All attendant circumstances must also be proved with 4 culpable state of minds.

Mistake of fact and law:

Knowledge or understanding element of crime.

a.Defense if

Reliance upon official lawmakera.Defense proved by preponderance of evidence.

b.

Legal defense if

Causation

Actual Cause: requires government to prove that but for the actions of defendant the result would not have happened when it happened.

Proximate Cause: limits actual but for causation to that directly related to the act.

F+P= Direct Cause: act direct cause of social harm and also proximate cause

Concurrent Sufficient Causes: if blows of each could have caused result.

Obstructed Cause: perpetrator is protected from suffering consequences beyond crime he committed. Unless foreseeable.

Accelerating Result: If merely accelerated death, defendant held responsible.

But For Test exclusive meaning of causation. Treats proximate cause as issues relating instead to defendants culpability. Caused result with level of culpability required.

Result too distant or accidental in occurrence to have just bearing on liability.If result deviates far from foreseeable, then not guilty of purp/know.

Proximate cause handled within mens rea.

Purp/Know: causation not established if result was not intended. Unless

Transferred intentInjury less than intended

Rec/Neg: causation not establish if result not within risk actor was or should been aware of.

Homicide

Unlawful killing of human being with maliceAforethought

Actus Reas

Issue: year and day rule: at common law death occurs more than one year after incident murder is barred.

Mens Rea

Intentional/knowingly kill1.Malice Aforethought

Victim born aliveNo aforethought requirement/degrees.

Criminal Homicide: purposefully, knowingly, recklessly, negligently cause death(murder, manslaughter, or negligent homicide)

Purposefully, knowingly commits ora.Commits during BAKER (burglary, , kidnapping, escape, or rape

b.

Depraved Heart: extreme indifference to c.

Murder

Some states protect fetus


Intentional/knowingly kill1.Intent inflict grievous bodily injury2.Extreme recklessness3.Felony Murder4.Kill another in commission or attempted commission of felony.Common law: escape part of felonyFelony must be inherently dangerous. (foreseeable risk of death)

Degrees of Murder

willful, deliberate, premeditated "cold blooded.

a.

All 3 provenWillful: intent to killDeliberate: course of action to killPremeditated: determination to killNo set timeFactors: blows after death, ill-will, conduct/statements, threats, brutal killings.

Killing by poison, lying in waitb.Felony murderc.

1st

2ndPurposefully, knowing killing not 1st degree or voluntary manslaughter.

Intentional- causing serious bodily harm

Felony murder- if not 1st by statute

Depraved Heart: extreme reckless killing

Voluntary manslaughter- intent to kill in heat of passion. No malice

Response to provocation1.Would reasonable man lose control?(mere words not enough)Heat of passion2.Time lapse not enough to cool down3.Defendant subjectively has not cooled off.4.

Test

Involuntary: unintentional killing

Depraved Heart: extreme indifference to human life)

c.

Felony- presumption of recklessness and indifference to human life

d.

Committed recklesslya.Committed under influence of extreme mental/emotional disturbance. Heat of Passion Test.

b.

Manslaughter

2nd degree

Negligent Homicide- negligent3rd degree felonyReasonable prudent person standard. Should have known/aware of risks. Failure to use ordinary caution

Rape

Sexual intercourse by male with female without consent

Forcibly1.Means of deception2.Asleep or unconscious3.Non consent (underage, disabled, drugged, mentally unable)

4.

Statutory Rape: strict Liability

Male sex with female not wife

Compel force, threaten, bodily injurya.Substantially impairedb.Unconsciousc.Less than 10d.

2nd degree unless- bodily injury or not voluntary social companion with sexual history.

Fraud: fraud in factum: (not consenting to sexual acts)

No strict liability statutory rape

Gross Sexual Imposition


Threaten (job loss)1.Mental illness2.Mistaken husband3.

Gross Sexual Imposition

Theft

Larceny 1. trespassory taking and 2. carrying away of 3. personal property 4. of another person 5. intent to steal.

Trespassory: wrongful1.Taking: interference possession rights2.Carrying away: even one inch3.Personal property4.Of another: not true owner just sole possession

5.

Intent to steal (Specific)6.

Asportation: take and carry away

Does not require to steal from lawful owner.Larceny requires permanent deprivation. (if intent does not exist at time but later decides to keep, cont trespass doctrine)

Burglary: 1. breaking and entering 2. dwelling 3. nighttime 4. intent to commit a felony. (specific intent)

Continuing trespass- defendant retaining possession of item is trespass and moment permanently hold item then larceny is complete.

Lost property: finder must make reasonable effort to find owner.

Breaking Bulk Doctrine: when bailee breaks open bale and takes portion then larceny.

Larceny by trick: obtain property for one reason and with another intent.

False Pretenses: knowingly obtains title by false premises. False representation of fact. Nondisclosure only represents false pretense if fiduciary relationship involved.

Embezzlement: entrustment of property then conversion to personal use.

Value is market value.Single larceny doctrine: same bundle or parcel (same larcenous impulse)

Receiving Stolen Property: person has reasonable cause or should have reasonable cause to believe property obtained through theft.

Dangerous weapon: represents or conduct that person is armed in manner to lead reasonable person.

Use of Force: if use of force is used to overcome interference of taking then armed robbery.

Attempt

Specific Intent to commit crime 2. some acts in furtherance of that intent.

1.

Mens Rea Requirement: 1. mental state crime requires 2. purpose to bring about acts and results that are elements of crime. 3. merely knowing of existence of attendant circumstances.

Negligent crimes are logically impossible.

Actus Reus TestPreparation is not enough; must be in dangerous proximity of committing crime.

Indispensable: control over all factors in commission of crime. Nothing left undone.

Last Proximate Act- test abolished

Substantial step in a course of conduct planned to culminate commission of crime.

Same Penalty as crime attempted.

DefensesAllows renunciation or abandonment crime as defense: voluntary renunciation of person's criminal purpose.

Not all disturbing remarks are criminal threats.

Most jurisdictions do not recognize factual impossibility only true legal impossibility as defense.

Legislatures can make certain preliminary conduct a crime.


Last Proximate Act- test abolishedPenalty is proportion of crime.

Factual Impossibility: mistaken about facts but if correct crime would have been accomplished. Not support by CL

DefensesLegal Impossibility Defense: D believes crime but legally not a crime.

Does not recognize abandonment of crime defense. Crime complete when perpetration line crossed.

Solicitation

Soliciting another to engage in criminal conduct1.With intent that that person do so2.

Party does not need to consent as crime is completed as soon as solicitation.

Commands, encourages, requests another to engage in specific criminal conduct.

1.

Immaterial failure of communication2.Renunciation defense: after solicitation persuade other or prevent crime.

3.

Solicitation Merges into crime of attempt and completed offense. Cannot convict person of both solicitation and attempt.

Conspiracy

Agreement between 2 or more persons to commit a crime.

Specific intent crimeIntent to agree inferred by stake in outcome.

Conspiracy is separate crime from object crime. (i.g. conspiracy to rob bank and bank robbery)

To agree1.To commit the object crime2.

Elements

Mere presence is not enough to establish conspiracy

Plurality requirement: two parties needed.

Conspirators not need to know everyone in conspiracy.

"wheel conspiracy"

Proof can be used against every other member of conspiracy.

Pinkerton Vicarious Liability: Overt act of one conspirator may be act of all without new agreement specifically directed to act. Offenses must be reasonably foreseeable. Many states do not accept.

Abandonment not defense

Agrees to engage or aid in conduct that constitutes crime.

Requires an Overt ActAny form of behavior that can reasonably be interpreted as behavior as agreement.

Unilateral requirement (i.g. undercover officer)

Merger: conspiracy may merge.

No Grading sentences

States are split on issue of plurality

Merger Majority Rule: conspiracy separate offense than any substantive crimes.

Abandonment: if accused abandons agreement and withdraws. Courts require communication with coconspirators or notification of authorities.

Accomplice Liability

Aiding and abetting; accessoryNot a separate crime and only applies if target crime is committed.

Elements

Principal does not have to be convicted for accomplice to be held liable.

Accomplice liable even if principal never tries to commit crime.

Eliminates distinction between principals and accessories. All are principals and imposed to same punishment.

Accessory after the Fact: some states


Intentional assistance1.Same required state of mind as principal2.Exceptional Natural and Probable Consequences

3.

Elements

Principal must be convicted for accomplice liability

Principal first degree perpetrator1.Principal 2nd degree (accessory at fact) assist in crime and scene of crime.

2.

Accessory: not present but counseled, advised, or directed commission of crime or aided in escape.

3.

Accomplices

Aiding and abettingMore than evidence of general criminal activity . Must prove specific intent and knew of proposed crime.Encouraging can constitute aiding

Mental state of crime and 2. purpose to commit act of aiding.

1.Mental State

Mental State: must have purpose of aiding both in committing acts and underlying substantive crime.

Does not recognize natural and probable

Accessory after the Fact: some states have separate statute for any one who aids, assists after crime.

Jury may charge defendant both as principal and accessory.

Natural and Probable Consequences Doctrine: Some jurisdictions hold liable for natural and probable consequences: foreseeable consequences of actions aided. (i.g. murder in theft)

Innocent Instrumentality: person who uses individual to commit crime is principal unless person used was aware of high probability of being used. Willfully blind not defense.

Some states can be convicted of greater crime than perpetrator: more guilty mens rea.

Defenses

Right to Present- 5th amendment + 6th amendment (due process + right to confront witnesses)

Inconsistent Defenses allowable in court if supported by sufficient evidence

Client Perjury: dissuade client from making false statements, professionally acceptable to notify court of clients intent. Some courts encourage lawyers to call defendant to witness and have him narrate to avoid lawyer making false statements.

Countering/Contesting1.Failure of proof- Motion for directive verdict/ judgment of acquittala.Impeachmentb.Misidentification- DNA evidencec.Alibi Defense- places defendant at relevant time in a difference place than the scene involved and so removed as to render impossible for accused to be guilty party.

d.

Affirmative (Burden of Proof always on Prosecution in MA)1.Justified- e.g. self defensea.If allowed in evidence, then right to defense/justification claimExcused- insanity, incompetenceb.Cultural/Religious Defenses1.Limitation on the Right2.State law- states has right to limit certain rights to defensea.Speculative/unwarrantedb.Unduly Repetitivec.

General Defenses

Common Law Model Penal Code Modern Trends

Self Defense

Right to defend oneself against unlawful force

Honest reasonable fear of personal harm1.Imminent and unlawful2.Belief force necessary to repel3.Majority: objective viewForce proportionate4.Defendant not aggressor5.(some states) defendant must retreat before using deadly force.

6.

Defendant must prove self defense by

Non-deadly forcePerson may not use self defense to resist an arrest even if arrest in unlawful.

Deadly Force

Death1.Serious bodily injury2.Forcible rape3.Kidnapping4.

Necessary to protect himself against

*Cannot be an aggressor

Battered Spouse Syndrome Defense


Defendant must prove self defense by preponderance standard.

Use of Non-deadly forceOne is never permitted to use deadly force to repel non-deadly attack.

Use of Deadly ForceWhen confronted with deadly force

Retreat RuleMajority: no duty to retreat

Castle Rule: no duty to retreat if in house unless aggressor.

Battered Spouse Syndrome: woman cannot be expected to retreat before using deadly force

Imperfect Self DefenseDisproportionate use of forceDefendant erroneously believed in dangerMurder to manslaughter

Defense of Othersjustified in using to extent that 3rd party is justified in acting in self defense.Majority View: Reasonable Appears necessary

Defense of PropertyUse of non deadly force if reasonably believes force is necessary to prevent imminent and unlawful dispossession of property. No use of deadly force allowed.

Hot Pursuit can use reasonable force to retake.

Defense of HabitationPerson may use deadly force to defend home.

Law EnforcementCrime preventionA.Majority rule: use deadly force to prevent violent crime.Arrest: fleeing felon rule separates citizen/officerB.Pursue and use deadly force if reasonably believed felony

Spring Guns: allows contraption as if present

Retreat RuleCannot use deadly force if complete safety by retreating is an option.Retreat not required at home or place of work.

Defense of Others

No more force than reasonably believes necessary to protect 3rd party.

1.

Reasonably believes 3rd party justified in using self defense

2.

Reasonably believes intervention is necessary for 3rd party protection.

3.

Defense of PropertyNo immediacy requirement

Defense of HabitationNo recognition

Law Enforcement

May not use deadly force to apprehend felon.

Use Deadly force if threat to others

No allowance of spring guns.

Excuse Defenses

Plaintiff faces choice of evils1.No apparent legal alternative2.Imminent harm3.Plaintiff reasonably chooses lesser evil (a crime)4.Plaintiff did not create necessity5.Split as to homicide

*Generally Economic Harm is not enough*State court can place burden of proof on defendants for affirmative defenses.

Civil Disobedience- Direct/IndirectDirect: protesting existence of law by breaking law directly.Indirect: violating law that is not itself object of protest

Necessity - Choice of Evils Duress

Model Penal Code: no imminence or deadly force requiredMurder not exempted.

Entrapment: Objective Test*objective officers nature of police conduct before crime


protest

Plaintiff coerced to commit crime1.By unlawful threat of death/grievous injury2.No fault of plaintiff3.Does not excuse murder*Future harm is not enough

Duress

Applies only to government agents1.Subjective (majority)2.Issue of Selective Prosecution3.

*subjective defendants disposition before offense (predisposition: defendants willingness to commit crime before entrapment)

Entrapment

Focus- Plaintiffs state of mind at trial1.Test (Preponderance of Evidence on defendant to prove unable

2.

To understand chargesa.To assist lawyerb.

Competency (To stand Trial)

Usually raised before trial and is submitted to examination and cross examination.

Burden of Proof on defendant.Usually bench trial.

Once Plaintiff found incompetentCivil Commitment until found competent.Length of holding must be reasonable proportionate to crime.Drugs can be used to restore sanity.

InsanityInsanity not constitutional right.

Focus- plaintiffs state of mind at time of crime.

Insanity Tests

M'Naughton Rule: distinguish right from wronga.MPC Test: lacked capacity to conform conduct to requirements of law.

b.

Irresistable impulse: unable to control actions.c.

Procedure of Insanity (Notice)Meet Burden of ProofVerdict- Not guilty by reason insanity, not guilty, guilty but mentally ill)Confinement

Diminished Capacity- Partial Responsibility

Capacity (infancy)Under 7 no criminal activity7-14 presumed14+ same as adult

Intoxication

Voluntary: generally not excuse

unaware1.Involuntary (some states complete defense)

Involuntary: Self InducedUsually cannot be charged with crime of purpose or knowledge

MPC (Extreme mental or emotional disturbance)

15 under- JC16-17 " "Unless court waives and binds order (judge decision)

Intoxication is defense.Can negate purposeful/knowledgeBurden of proof for defendant to prove.


unaware1.Forced to take2.Unforeseeable (medication side effects)3.May serve as defense for general/specific

Strict Liability

Cannot be defense unless negates element of crime.

Burden of proof for defendant to prove.

Criminal ProcedureTuesday, September 28, 20108:12 AM4th Amendment: Rights of people to be secure in their persons, homes, papers, effects, against unreasonable searches and seizures, shall not be violated, and no warrants issue but upon probable cause, supported by oath, describing place, persons to be seized.

Theme: Balance of prerogatives of government and liberty of the individual

Warren Court: civil liberty (Mapp and Miranda) 60s

Rehnquist Court: lifting constraints on police "War on Drugs" 80-90s

Warren Court- applies federal rules to states

Overview

14th amendment fused state/federal constitution law "not deprive any person of life liberty or property without due process of law.

Exclusionary Rule requires suppression of evidence obtained in violation of 4th

Mapp v Ohio - suppression of evidence covered state

Miranda- protects accused 5th rights against compelled self incrimination

Criticism: violates federalism- tips scale too much in favor of accused

1970s- court limits exclusionary rule

Deny standing

Good faith exceptions

Curtail impact of Miranda and Mapp

States can expand protections; constitution is floor mandate

Search and Seizure

Framers Intention: Avoid open ended licenses to search

View: Warrantless searches and seizures are generally unreasonable barring certain circumstances

When Does 4th amendment apply? Was there a search under the 4th?

" 4th implicated only when government intrudes into an area deemed in one in which citizen may reasonably expect privacy."

Whether private party is covered by 4th is determined by whether he is "acting as an instrument of the state"

Degree of government encouragement1.

Purpose of action (government or promote own business objective)2.

Reasonable expectation of Privacy"people not places" Katz

Does person have reasonable expectation of privacy. 2. would society deem as objectively reasonable? Overturned Olmstead Trespass Doctrine

1.


Whether search occurred: the setting observed and vantage point of search.

Home has Greater Expectation of PrivacyOvernight Guests of home afforded protection under 4th. (Minnesota v Olsen)Hotel rooms are protected (Stoner v CA)Cannot use technology that trespasses confines of home (Kyllo v US)

No Expectation of Privacy"open fields do not provide setting for intimate activities that amendment shelters"(Oliver v US)Business Associates not given same protection of house as overnight guests (Minnesota v Carter)Curbside Trash (CA v Greenwood)

Justification of Search

Probable Cause- Standard for Search and ArrestWarrantless search then police make evaluation of probable cause

A reasonable person conclude that particular individual has committed a crime/or about to, or that specific items related will be found.

Trustworthy hearsay (must be demonstrated in court) or personal observations (Gates)Informant needs to be reliable and credible.Balanced assessment of relative weights of all various indicia of reliability of tipDraper Test: basis of knowledge prongProbability not technical, not a neat set of legal rulesBased on specific facts not mere suspicion

Flight alone is not enough for probable cause; just a factor.High crime area is only a factor in establishing probable cause

Cannot hold someone without hearing of probable cause (Gerstein and Dunaway)

Reasonable Suspicion - "Stop and Frisk" interest of effective crime preventionBrief detainment/questioning and frisk for weaponsSpecific and articulable facts to reasonable suspicion that crime is about to occur.

Informant can provide "indicia of reliability" (Adam v Williams)

For search- armed and dangerous only

What Constitutes a Stop?"when officer of physical force or authority restrained liberty of citizen""if a reasonable person would have believed that he was not free to leave"

Terry stop must last no longer than is necessary to effectuate the purpose of the stop. Although rigid time frame for Terry Stop (US v Sharpe)Stop cannot go beyond what is needed to find weapons. Must immediately be aware of contraband feel and touch is okay (Minn v Dickerson)

If nature and detention arise to arrest then probable cause must be shown

Expansion of Terry StopsAutomobileOfficer may stop under articulate reasonable suspicion person violated law (Hensley) or traffic violation. (Whren) Frisk if suspected of weapons (Moore)May also require person to identify themselves (Hibel)HomeProtective Sweep only long enough to resolve danger- only where persons may be found (Maryland v Buie)Administrative Searches (impounds (Oppermann), DUI checkpoints (Sitz), drug screening, inspections)Balance TestImportance of administrative object to public interest v 1. scope of intrusion 2. discretion 3. expectation of privacySearches conducted to neutral standardized criteria and procedures. Probable cause is not needed

Search and Arrest Warrants

Issued by neutral magistrate1.

Probable cause2.

Warrant must describe place, items, person to be searched/seized3.

Execution of Warrant


Execution of WarrantPolice can conduct warranted unannounced entry if circumstances are necessary. Knock and Announce not needed (Wilson v Arkansas)

Unreasonable to search entire house with arrest warrant, barring exigent circumstances (Chimel v CA)

Mere evidence collected during valid search admissible (warden v Hayden)

Warrantless Searches and Seizures

Exceptions that require probable cause: exigent circumstances

Probable cause that suspect had committed crime (Watson)1.

Compelling urgency, warrant was risky

Hot Pursuit Doctrine

Destruction of evidence1.

Escape of suspect2.

Danger to police or others3.

Officers must be in pursuit of person and have probable cause they have committed a crime and are in a particular dwelling. Probable cause can be based on witnesses. Immediate and continuous pursuit

Exceptions that require probable cause: Search Incident to an Arrest

Arrest must be lawful (probable cause)1.

Permits search of person and area immediately surrounding object of arrest (Edwards)

Exceptions require probable cause: Automobile search and containersWarrantless search of car as long as officer has probable cause to believe there was contraband in vehicle. (Acevedo)Less privacy in car and searches are permitted of containers/entire car (Chambers v Maroney)

Exceptions that require reasonable suspicion: stop and frisk

Exceptions that require administrative justification: admin/inventory searchesCustodial administrative search at station (Lafayette)Federal Statutes such as railway which protect public interest (Skinner)Area code enforcement on consent (Camera v SF)

Warrantless intrusion with no justification: Consent Doctrine Rule: Would a reasonable person decline the officer's request?

Co-occupant may consent (Matlock)

Police in good faith may get consent by resident with no real authority to allow search (Rodriguez)

If consent is disputed by co-occupant then no search (Georgia v Randolph)

Plain View DoctrineDoes not permit search (Az v Hicks), only seizure of something already discovered. Does not provide justification of entry

Original intrusion lawful1.

Observed while officer is in permissible scope of intrusion2.

Immediately apparent item is contraband3.

*Inadvertent Discovery not criteria (Horton v CA)

SchoolsOnly reasonable suspicion needed to search at public schools (NJ v TLO)

Exclusionary Rule (Mapp)

Fruit of the Poisonous Tree DoctrineEvidence directly and indirectly derived from violation is excluded as well

Test: whether secondary evidence was discovered by exploitation of initial illegality or instead by means sufficiently attenuated to be purged of the original taint. (Wong Sung)

Time period between illegality and obtaining1.

Occurrence of intervening events2.

Flagrancy of initial illegality3.

Factors Helping: Miranda, Free Will, Other intervening factors <Evidence> <Time Lapse)

Exceptions of Exclusionary Rule


If obtained from independent source and not solely on exploitation, then evidence will not be suppressed. (Kastigar)

Inevitable Discovery Rule (Nix v Williams)

Limitations of Exclusionary Rule

Standing: person must have had rights violated in order to exclude evidence. (Rakas)

Exclusionary Rule irrelevant in grand jury proceedings and habeas corpus

Good Faith Exception: faulty warrants: officers reliance on warrant must be objectively reasonable. (Herring)

Impeachment Exception: evidence unlawfully obtained is admissible when being used to impeach. (Ventris)

Harmless Error: if conviction would have resulted due to overwhelming evidence, verdict not overturned.

5th amendmentNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1]

Voluntariness Standard

Balance: legitimate interest of police in obtaining evidence and protecting individual

Non-voluntary statement not admissible in court

Police subjected suspect to coercive conduct1.

Conduct was sufficient to overcome will of accused2.

Length of detention, deception. Generally must be product of overreaching by police

Factors: police conduct, vulnerability of defendant (child, mentally challenged, duress)Threats, Coercion, deception and trickery alone do not constitute threshold. The totality of circumstances as a whole must be taken into consideration.

Miranda Approach (1966)

Right to remain silent and anything he says may be used against him in court. Right to have attorney present during questioning and if he cannot afford one, appointed to him.

If individual exercises right to silence or attorney, interrogation must cease and cannot be assumed guilt (Doyle)Post Miranda if statement is read prosecutor has to meet "heavy burden" that defendant knowingly and intelligently waived right.

Only active in context of custodial interrogation." restrain of freedom like to a formal arrest" would a reasonable person in suspect's position believed himself to be in custody and deprived of freedom?

InterrogationVoluntary statements not covered by doctrinePhysical evidence obtained from un-Mirandized voluntary statements is admissible, although the statements, themselves may not be. (Patane)Functional equivalent of questioning (reasonably likely to elicit an incriminating response) (Innis/Brewer)Must have essential ingredient of a police dominated atmosphere. (Perkins/Mathiason)Routine background questions not interrogation (Muniz)Cannot use condition of termination for public employees as coercion (Garrity)

Waiver of Miranda RightsDefendant must unambiguously invoke rights and silence is implied waiver (Berghuis)Express or implied waiver of rights through conduct of suspect. (Montejo)"knowingly intelligently, and voluntarily waived his privilege. (Elstad)

Use of Statements for ImpeachmentIllegally obtained statements can be used against defendant in impeachment (Harris)

Suppression of Fruits of a Statement Obtained in violation of Miranda

Evidence derived from statement (physical or testimonial) will be admissible as long as statement was not coerced and involuntary (Elstad)


http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution#cite_note-Bill_of_Rights_from_Cornell_University_Law_School-0

6th amendment Right to Counsel (Applies to State Powell)In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Effective legal counsel: Defendant must prove 1. deficient 2. and deficiency prejudiced the defense. Standard is of reasonable effective assistance. (Strickland)

Speedy Trial is relative to the totality of circumstances (Barker v Wingo)

Cross Examination of Witnesses is a right (Crawford/Pointer)

Jury Selection cannot discriminate against race or gender without specific reason (Batson/JEB/McCollum)

First Appeal only (Douglas/Moffit)

Government deliberately elicited incriminating statements from accused in absence of counsel. And 2. after initiation of judicial proceedings. (Kirby)

1.

Massiah Doctrine: Government cannot deliberately elicit incriminating statements after right to counsel has been invoked (Brewer v Williams)

Government must take some deliberate action to elicit a confession. Much lower bar for sixth violation than Miranda.

Waiver

Initiation of further communication after waiver of counsel.

Other Investigatory Procedures

Eyewitness Identification: physical attributes on public display are not protected (facial appearance, hand writing (Anderson) , voice) (dionisio)

Totality of circumstances

Unnecessarily suggestive 2. likely to lead to mistaken identification (Kirby)1.

Show-up (no attorney needed) but illegal if

Bodily Intrusions

Weigh intrusiveness and risks against governments need for evidence. (Winston v Lee)

Under 5th, evidence needs to be testimonial. (Muniz)

Double jeopardy bars litigation between the same parties of issues actually determined at a previous trial. (Ashe v Swensen)

Double Jeopardy only attaches after a judgment has been rendered. (Somverville)

If defendant is unruly he can be placed in contempt or thrown out of court (Allen)

Where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause f or his failure to raise the claim in accordance with applicable state procedures. (Reed v Ross)

Criminal Trials open to public/media (Richmond Newspapers)

The state courts must instruct juries under due process to find the defendant beyond a reasonable doubt guilty (Victor)

False testimony may be a factor in sentencing. (Grayson)

Rights of Accused

Evidence To overturn conviction; a reasonable probability conviction would have been different if material evidence have been disclosed. (Agurs)If evidence is destroyed/lost defendant must prove acted on bad faith (Youngblood)Testimony at suppression hearing may not be admitted against defendant at trial. (Simmons)Plea BargainingIf guilty plea is voluntary it is valid (Brady/Alford)8th amendmentNo excessive Bail (Stack v Boyle)


criminal fall outline

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