Crim & Crim Pro

Assault

• Attempt to commit battery, OR intent to place another in fear of imminent injury

• Aggravated if a deadly weapon is used

Battery

• Intentional or reckless

• Causing

• Of injury or offensive touching

• Aggravated if a deadly weapon is used

Mayhem

• Permanent dismemberment or disablement of body

• Treated as battery in modern times

Issues checklist - crimes against the person

• Assault

• Battery

• Mayhem

• Kidnapping

• Rape

• Homicide

Issues checklist - theft crimes

• Larceny

• Robbery

• Burglary

• Embezzlement

• False pretenses

• Extortion

• Theft

• Arson

• Receipt of stole property

Issues checklist - incomplete crimes

• Solicitation

• Attempt

• Conspiracy

• Merger

Issues checklist - defenses

• Self-defense

• Defense of property

• Defense of others

• Insanity

• Intoxication

• Necessity

• Mistake

• Entrapment

Issues checklist - Fourth Amendment

• Arrest

• Routine stops

• Search and seizure

  • Exceptions

    • SILA

    • Plain view

    • Automobile

    • Consent

    • Exigent circumstances

    • Stop and frisk

Issues checklist - Fifth Amendment

• Miranda warnings

• Right to counsel

• Right against self-incrimination

• Double jeopardy

• Due process

Issues checklist - Sixth Amendment

• Right to counsel

• Right to confront witnesses

• Right to jury

• Right to speedy trial

Issues checklist - misc. crim. pro.

• Exclusionary rule

• Good faith warrant

Issues checklist - Confessions/identifications

• Voluntariness

• Due process

• Pleas

Issues checklist - Eighth Amendment

• Bail

• Sentencing

Kidnapping

• Unlawful confinement

• Move or conceal victim in a hidden place

• Aggravated if ransom/crime/child

Rape

• Unlawful sexual intercourse

• Without consent

Homicide

Murder

• Unlawful killing

• With malice

  • Intent to kill (presumed if use of deadly weapon)

  • Intent to commit grievous bodily injury

  • Reckless indifference

  • Felony murder

    • Felony must be independent of killing

    • Not liable for death of co-felon

Voluntary manslaughter

• Reasonable provocation

• D in fact was provoked

• No time to cool off

• D did not in fact cool off

• OR… imperfect self-defense

Involuntary manslaughter

• Gross negligence

• OR… misdemeanor manslaughter

Degrees of murder:

• First degree = premeditated, deliberate, or felony murder

• Second degree = everything else

Larceny

• Trespassory taking

• Of personal property

• Of another

• With intent to steal

Embezzlement

• Fraudulent conversion

• Of personal property

• Of another

• By someone who has lawful possession

False pretenses

• D knowingly makes

• False representation

• Of a past or present material fact

• Which causes another

• To convey title

Robbery

• All elements of larceny +

• Property is taken from a person or from their presence

• Through force or fear

Extortion

• Threat of future harm

• To deprive an owner of property

Theft

• Unlawful taking

• Of another’s property

Burglary

• Breaking and entering

• Of dwelling house

• At night

• With intent to commit a felony

Receipt of stolen property

• Knowingly

• Receive, conceal, or dispose of

• Stolen property

• With the intent to deprive the owner of it

Arson

• Malicious burning

• Of a dwelling house

• Of another

Solicitation

• Request or encourage

• Another to commit a crime

• With the intent that they do so

Note: this will merge into the actual crime.

Conspiracy

• Agreement

• Between two or more people

• Intent to commit an unlawful act

• Where parties have taken an overt act (majority requirement)

Co-conspirator liable for all acts of others in the conspiracy if those acts are:

• Foreseeable

• In furtherance of the conspiracy

Note: there is a withdrawal defense.

Attempt

• Intent to commit a crime

• Affirmative act beyond mere preparation

Note: this will merge into the actual crime.

Accomplice liability

Accomplice is liable for the crime of the principal if accomplice:

• Aids, abets, or encourages

• The carrying out of the crime

Accomplice is liable for additional crimes of the principal if those additional crimes are foreseeable.

Defenses

• Self-defense

  • Reasonable use of force

• Defense of others

  • Reasonable belief in necessity/threat

  • Reasonable use of force

• Defense of property

  • Reasonable force

  • No deadly force

• Insanity

  • M’Naghten test

    • D has a mental disease, AND

    • Either

      • D didn’t understand what they were doing, OR

      • D didn’t know that what they were doing was wrong

  • Irresistible impulse

    • D has a mental disease

    • D is unable to control conduct

  • Durham test

    • D’s mental illness is a but-for cause of his conduct

  • MPC

    • D lacks capacity

    • D cannot appreciate criminality

• Intoxication

  • Voluntary

    • Negates specific intent

  • Involuntary

    • Possible defense to all crimes

• Necessity

  • Reasonable belief

  • That action was necessary to avoid

  • Imminent and greater injury to society

• Mistake

  • Of fact

    • Negates specific intent

    • Negates general intent if the mistake is reasonable

  • Of law

    • Never a defense

• Impossibility

  • Factual

    • D makes a mistake about an issue of fact

    • Not a defense

  • Legal

    • D thinks the act is criminal but it isn’t

• Entrapment

  • Law enforcement

  • Induces D to commit a crime

  • And D wasn’t predisposed to commit such a crime

Fourth Amendment - arrest

• Need a warrant if in a home

• Warrant must be based on probable cause

• Probable cause is a reasonable belief that a law has been violated

Fourth Amendment - routine stops

• Cars

  • Reasonable suspicion

  • Objective standard

• Fixed checkpoints for compliance with laws are ok

• Stop and frisk

  • Reasonable suspicion

  • Articulable facts

  • Pat downs for weapons are ok

Fourth Amendment - search and seizure

• Warrant must be

  • Based on probable cause

    • Connected

    • Found in place

  • Issued by a neutral magistrate

  • Describe [?]

  • Knock and announce [?]

Fourth Amendment - exceptions to the warrant requirement

• SILA

  • Lawful arrest

  • Area within access/immediate control

  • Protective sweeps are ok

• Plain view

  • Provided the officer is on the premises legitimately

• Automobile

  • Probable cause

  • Impound [?]

• Consent

  • Voluntarily

• Exigent circumstances

  • Destruction of evidence

  • Injury to persons

  • Hot pursuit

Fifth Amendment - Miranda

• Right to remain silent

• Anything D says can be used against D

• Right to attorney [?]

  • Custodial

  • Interrogation by police

    • Likely to elicit incriminating response

    • Suspect must know police are questioning

  • Exception: public safety

  • Cannot re-Mirandize until 14 days later

Miranda rights can be waived:

• Voluntarily

• Knowingly, intelligently

Fifth Amendment - right to counsel

• Unambiguous request by accused to invoke

• Police must cease all questioning

Fifth Amendment - right against self-incrimination

• Applies only to testimony or communicative evidence

• That could expose D to criminal liability

Fifth Amendment - double jeopardy

• Cannot be tried for the same offense twice

• Applicable if a jury or first witness is sworn in

Sixth Amendment - right to counsel

• Post-charge

• Line-up, show-up, or sentencing

• Not applicable for photo ID, handwriting, fingerprint, or physical evidence

• Ineffective assistance

  • Counsel performs deficiently

  • Based on a reasonably competent attorney

  • And there would have been a different result if not for the deficiency

• Substitute attorney if justice requires

• D can waive this right

Sixth Amendment - right to confront witnesses

• Adverse/hostile witness

• Compel testimony or cross-examine

• Only for testimonial statement

  • A statement is non-testimonial if there’s an ongoing emergency

• With co-defendants

  • Either redact identifications in their statements, OR

  • The other D takes the stand, OR

  • Sever the trial or use two juries

Sixth Amendment - right to jury trial

• For serious offenses with potential for more than 6 months in prison

• D can waive this right

• At least 6 jurors

  • If federal crime: must be unanimous

  • If 6 jurors: must be unanimous

  • If 12 jurors: must be majority

• Jurors must be impartial

• To show that a jury is not a fair cross-section…

  • The group excluded is distinctive

  • # in representative group is not reasonable compared to # in community

  • Systematic exclusion

Sixth Amendment - right to speedy trial

• Case-by-case decision

• Court must balance:

  • Length of delay

  • Reason for delay

  • Prejudice to D

  • Time and manner in which D asserted his right

Sixth Amendment - right to preliminary hearing

• Need probable cause if not established [?]

• D can waive this right

Exclusionary rule

Core doctrine:

• A piece of evidence will be excluded if it’s found to violate D’s rights in the 4th, 5th, or 6th Amendments

• D must have standing; it must be his own rights that are violated.

• Any evidence that stems from the violation is also inadmissible

Exceptions:

• There’s an independent source

• The evidence would be discovered inevitable

• Good faith warrant exception

  • Setup: improper warrant results in 4A violation

  • Rule: evidence not barred if the official acted in good faith

  • Note: no exception if someone lied, there was no probably cause, or the warrant was defective on its face

• Purged taint [?]

Permissible to use the evidence still for impeachment and in civil, parole, and grand jury hearings.

Confessions and identifications

• Voluntary confessions

  • No police coercion

  • Totality of circumstances

  • Mental illness irrelevant

• Due process and identifications

  • No unnecessarily suggestive ID of the defendant

  • Totality of circumstances

  • ID cannot be unfair to D

Eighth Amendment - bail

• Not coercive or unduly high

• Court considers

  • Seriousness of offense

  • Weight of evidence against D

  • D’s financial abilities

  • D’s character

Eighth Amendment - cruel and unusual punishment

• Penalty cannot be grossly disproportionate to crime

• No death penalty for minors or mentally disabled

• Victim statements are allowed during the sentencing phase

• Jury considers mitigating circumstances against death penalty [?]