Crim Pro outline

Search and seizure: open fields

You do something out in the open, you don’t have any expectation of privacy

Search and seizure: warrant

• Cop can rely on reliable informant for probable cause

• issued by neutral and detached magistrate

• facts are fresh, not out of date

• Warrant has to be SPECIFIC to person, place and object 

• search may not exceed SCOPE of warrant

• if police relies on warrant and it turns out there is some wrong information

• then search is still valid (cop acted in good faith) 

Warrant: Once you find what you’re looking for

• can’t look for other things. If there’s evidence in plain view next to the place you’re looking in then you can also take that 

  • Cop cannot do protective sweep (go looking around the house) unless had evidence there was other in the house

If an unlawful arrest happens because of a bad search (unlawful)

•  does not mean that the defendant gets an automatic dismissal of the indictment. They have to do other things

Exceptions when you don’t need a warrant (6)

Consent

Incident to lawful arrest

inventory search at police station

exigent circumstances

hot pursuit (defendant trying to flee)

autoexception

Exceptions to warrant: consent

• someone VOLUNTARILY consents to the search 

  • A guest can’t consent to search of OWNER’S Property 

  • But if someone gives someone temporary authority to use car or property then they can give consent 

  • if 2 ppl share property and one says yes search other says no then no consent 

    • But if one person home and the other isn’t and they say yes come in then search valid 

Exceptions don’t need a warrant: Incident of lawful arrest

•  arrest happens first and cop can search anywhere in wingspan (immediate control)

Exceptions don’t need a warrant: exigent circumstances

• (emergency where the evidence may be lost or destroyed) 

Exceptions don’t need a warrant: autoexception

• if police has probable cause that car itself is carrying contraband (car is doing something wrong/moving contraband) 

Miranda when applies

• only apply as a result of custodial interrogation 

  • In custody (objectively not free to leave) AND interrogation (police know or should know they’re trying to elicit a criminal response)

    • If both then miranda warnings need to be given to you

More Miranda details

• You can volunteer information after Miranda and it will be admissible

• can waive Miranda (why??), based on totality of circumstances and you need to know what you’re doing 

• if after miranda you want to speak to attorney then all questioning must be stopped/thrown out

• prosecution may not comment on failure (refusal to speak) bc right against self-incrimination 

• in some incidences can make defendant submit evidence like blood test or make them do some act to identify them

Line up identification

• cannot be too unnecessarily suggestive 

• must be objective as possible 

• no right to counsel at the line-up prior to indictment

  • after charged then get counsel for line-up

Right to counsel (6th amendment)

• after formal charges, have right to counsel at all critical stages of the proceeding

• right to effective counsel- did the representation deviate from any norms? 

  • counsel was effective unless you can prove otherwise 

• can waive right to counsel but must be done KNOWINGLY 

Do not have right to counsel in…

preliminary identification, pre-indictment line-ups and grand jury

Right to counsel, codefendants with conflict

•  codefendants are sharing counsel and if conflict exists that prevents effective representation of both at the same time then the single attorney can’t represent them both

Fair trial: guilty plea and severing plea

Competency required even is defendant needs to be on drugs

Guilty plea must be done voluntarily and intelligently

Severing the plea (if two defendants are tried together and there’s evidence that would prejudice one of them)

Right to jury trial if

 if the sentence is longer than 6 months

Jury trial member numbers and unanimity for fed and state

• State trial 

  • (6 member jury) 

    • come in unanimous 

  • 12 member

    • Do not have to be unanimous 

• Federal (12)

  • unanimous 

Jury trial right of confrontation

• Witnesses testifying against defendant can be cross-examined/confronted 

• if there are codefendants and one defendant wants to confess and it will implicate other then they must testify at trial and be subject to cross-examination

• out of court/hearsay statement- testimonial or not

  • testimonial- not made during course of emergency. Not admissible 

  • non-testimonial- made during emergency. Admissible 

Jury trial procedural rights

• prosecution must prove ALL elements of the crime beyond a reasonable doubt

• Defense (if affirmative) have burden to show preponderance of evidence

• cannot have mandatory presumption in criminal case (violates due process)

Grand juries

Tbh anything goes

Double jeopardy

• Remember there has to be a first trial (duh) 

  • beginning and end of trial 

  • if jury trial then attaches when jury is sworn in 

  • if non-jury trial then attaches/begins when first witness is sworn in

  • Needs to be final judgement on merits to qualify as end (mistrial does not count then bc no final judgement) 

Double jeopardy: separate sovereign rules

• can be retried in different states

  • federal and state court, double jeopardy doesn’t apply so can be tried twice 

Double jeopardy: if there’s a case where several offenses come out of same act

• if underlying or lesser included offense (element of other crime) found not guilty in trial one then you can’t be tried for the second 

  • ex: tried for felony and then felony murder, but if tried for felony and found innocent then ofc you can’t be tried for felony-murder 

Sentence hearings

• can use hearsay evidence in sentencing hearings 

• any facts that increase penalty beyond statute have to be proved beyond a reasonable doubt

• remember death penalty is not cruel and unusual as long as safeguards are put into place to protect against arbitrary punishment 

  • cannot execute anyone under 18 at time of crime or anyone mentally not there

Inchoate crimes definition + elements

• Attempt, conspiracy, solicitation

• Specific intent to do the time AND do some overact (substantial step) towards completing the crime 

• Remember crime of attempt merges into crime once completed. 

  • You can’t be charged for both larceny AND attempted larceny (you either did it or you didn’t

Inchoate crimes: Conspiracy, elements, exception under model penal code, weird example

specific intent and AGREEMENT

• Say a DEA agent was trying to trick someone and made an “agreement” with someone to commit crime, not conspiracy because DEA agent does not have intent 

• Exception under model penal code: 

  • Unilateral theory of conspiracy so only one person alone can decide that they’re gonna commit the crime and that’s sufficient

Co-conspirator rule

• co-conspirator will be guilty of any crime that the other conspirators commit in furtherance of conspiracy

  • No merger, so even if you commit the crime, you can still be charged for conspiracy

  • conspiracy charge stays by itself

  • Once you agree you can’t withdraw from the conspiracy but you can withdraw from other crimes in furtherance of conspiracy if you notify co-conspirators in enough time before those crimes are committed

Inchoate crime: solicitation

• specific intent that they want them to do it (not a joke) 

• cannot withdraw from it 

• Merges into crime itself

Homicide: Murder four types and definitions

(Specific) Intent to kill- like action media

Felony murder

Intent to inflict serious bodily harm murder- (you wanna seriously injure someone, not kill them and they died) 

Depraved heart- acted with reckless disregard to human life 

Homicide: Felony murder elements BARRK

•  in the course of committing a dangerous felony someone dis

  • has nothing to do with intent to conflict serious harm

  • Dangerous felonies: (BARRK)

    • Burglary, Arson, Rap, Robbery, Kidnapping

Voluntary manslaughter

• Adequate provocation (heat of passion, weren’t thinking) and no time to cool off

• No intent ever 

• Imperfect self defense

Involuntary manslaughter

• Negligent conduct and somebody died

• Committed misdemeanor and someone died

• weird hypo: parent neglecting medical attention of child because of religious belief and kid dies, it’s involuntary manslaughter

Acting reckless v ngeligently difference

• reckless- presence of people 

• negligent- shouldn’t have done it and it’s not completely reasonable to think there would be presence of people 

Defenses to crimes (7)

Insanity

Intoxication

Mistake

Impossibility

Entrapment
Duress

Self-defense + defense of property

Insanity: M'Naghten Rule/ test

• M'Naghten Rule/ test

  • Mental disease so can’t appreciate the nature and quality of what they’re so they don’t know what they’re doing is a crime

• Sometimes model penal code 

  • lack substantial capacity to appreciate conduct

Intoxication (voluntary and involuntary)

• voluntary (like you just get drunk)- will be defense to a specific intent crime (because drunkenness negates intent)

• involuntary (like getting drugged)- defense to any crime

Defense to crime: Mistake

• Was crime specific intent or general intent crime?

  • if specific intent then any mistake whether reasonable or not can be a defense bc knocks out intent

  • if general intent then mistake has to be reasonable

Legal and factual impossibility (defense to crime)

Legal- always a proper defense bc basically means crime didn’t happen because one of the elements is removed 

• factual impossibility- not a defense bc no matter what you thought would happen, the elements of the crime were still met (you still committed the crime)

  • for instance you were gonna shoot someone but you forgot the bullet, you’re charged for attempted murder

Entrapment

• law enforcement starts or creates criminal activity and defendant is NOT PREDISPOSED to commit crime 

  • Never had a previous record or inclination

Duress

• When defendant reasonably believes they are under great threat of bodily harm or death

  • can never be used as a defense to murder

Other specific intent crimes: Larceny (normal, by trick, false pretense)

• Trespassory taking and carrying away of personal property of another with intent to deprive 

  • The MINUTE you touch it and MOVE it with this intent

• Larceny by trick- obtained possession of property by a trick/lie 

• Larceny by false pretense- end up getting TITLE 

  • Fraudulent sale (con, scam)

Specific intent crime: Burglary

• breaking and entering dwelling house of another at night with intent to do a felony

  • any expansion or enlarging an opening (like even just crack open the door) is breaking and entering 

    • if the door is wide open then that’s not breaking and entering 

  • If breaking into house using fraud or force (like put gun to head and say open house)  then also burglary

Specific intent crime: Robbery

• using fear, intimidation, force to obtain property 

  • element is that need to be afraid WHEN property is taken 

• Larceny merges into robbery, so can’t be guilty of both

SIC: Assault (two types)

• Assault

  • type 1: intent to commit a battery

  • type 2: intent to place another in imminent fear or harm

    • conduct is needed. Words not enough 

SIC: Embezzlement

• lawful possession of the property (given to you) and then converts it for personal use

SIC: Receiving stolen property

• physical possession of stolen property (Someone gave it to you), you know it’s stolen and your intent is to keep it 

SIC: Forgery

• fraudulent making of a false document that has legal significance and the intent to make wrongful use of it

SIC: Accomplice liability

• intent to achieve crime and aid, abet or encourage someone in the accomplishing of crime 

  • if the crime is committed then will be guilty of that crime itself even if never stepped foot into that premises

  • Weird exception: accessory before the fact

    • aid or abet or help to achieve but not present at scene of crime then guilty of this 

    • so guilty of this and not underlying crime

Accessory AFTER fact

• felony is completed, know crime has been completed and gives help to prevent being caught or committed

General intent crimes

No mens rea (intent) necessary. Just need the act

Battery

Arson

Rape

Kidnapping

GIC: Battery

•  unlawful application of force to another

  • crim law- general intent (charged/arrested for) 

  • to distinguish from torts → liable for damages