Crim & Crim Pro

Burden shifting

• The state always bears the burden of proving the affirmative elements of the crime

• Therefore, any jury instruction that requires the defendant to disprove an affirmative element by a preponderance (or any burden) will be invalid

• But it’s fine to D to bear the burden of proof for affirmative defenses

  • The sneaky edge case is when an affirmative defense is the exact flip side of an affirmative element, such that making D bear the burden of proving the defense is actually the same as making D bear the burden of disproving an affirmative element

List all specific intent crimes

• Solicitation

• Attempt

• Conspiracy

• First degree premeditated murder

• Assault

• Larceny and robbery

• Burglary

• Forgery

• False pretenses

• Embezzlement

Forgery

• Making or altering

• Of false writing

• With intent to defraud

• Where the writing has apparent legal significance

Assault

• Attempt to commit battery (specific intent crime), OR intent to place another in fear of imminent injury

• Aggravated if a deadly weapon is used

Battery

• Intentional or reckless

  • This is a general intent crime; no specific intent needed, meaning that intoxication (which can negate specific intent) is no defense

• 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

• 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 - Sixth Amendment

• Right to counsel

• Right to confront witnesses

• Right to jury

• Right to speedy trial

Kidnapping

• Unlawful confinement

• With either movement of victim or concealment of 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 inherently dangerous, one where death is a natural and probable consequence. Typically (BARKK):

      • Burglary

      • Arson

      • Rape

      • Robbery

      • Kidnapping

    • Felony must be independent of killing

    • Not liable for death of co-felon

    • Felony ceases once the felons reach a place of “temporary safety”

• Cause-in-fact

• Proximate cause

Voluntary manslaughter

• Heat of passion

  • Reasonable provocation

  • D in fact was provoked

  • No time to cool off

  • D did not in fact cool off

• Imperfect self-defense

  • Self-defense but where D made an unreasonable mistake

Involuntary manslaughter

• Gross negligence, OR

• Misdemeanor manslaughter

  • Felonies that aren’t inherently dangerous

  • Misdemeanors that are either malum en se (bad in themselves, as opposed to regulatory crimes) or inherently dangerous

Degrees of murder:

• First degree = premeditated and deliberate, or felony murder

• Second degree = everything else

Larceny

• Trespassory taking

• And carrying away

• Of personal property

• Of another

• With intent permanently to deprive the owner of that property

Embezzlement

• Fraudulent conversion

• Of personal property

• Of another

• By someone who has lawful possession

False pretenses

• D knowingly makes

  • This means with intent to defraud

• False representation

• Of a past or present material fact

• Which causes another

• To convey title

Note: if D obtains only possession, rather than title, then the crime is actually larceny by trick rather than false pretenses.

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

Burglary

• Breaking and entering

  • Entering uninvited through a wide open door is not breaking

  • Pushing open a closed door is

  • Gaining access to a dwelling via fraud (e.g., impersonating someone) is constructive breaking

• Of dwelling house

  • Hotel rooms can constitute dwellings

• 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

  • This is a general intent crime, so recklessness will suffice

• Of a dwelling house

• Of another

Solicitation

• Request or encourage

• Another to commit a crime

• With the intent that they do so

  • This is a specific intent crime

Note: this will merge into the actual crime.

Conspiracy

• Agreement

  • May be inferred

• Between two or more people

• With the intent to commit an unlawful act

• Where parties have taken an overt act

  • Not a requirement at common law, but most states have this requirement modernly

  • Unlike the “substantial step” for the crime of attempt, the threshold for overt act is minimal—mere preparation should suffice

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

• Foreseeable

• In furtherance of the conspiracy

MPC:

• Unilateral conspiracy (only one guilty mind) is still conspiracy

Wharton Rule (not universal, but may show up on MBE):

• Under this rule, for conspiracy, you need at least one more person involved in the conspiracy than is necessary for the commission of the crime—e.g., if the crime requires two people, the Wharton Rule would require that at least three people conspired to commit it

Note:

• At common law, withdrawal was not a defense; under the MPC, however, withdrawal is a defense if

  • Timely

  • Notify all other conspirators

  • If provided material assistance, must attempt to thwart, e.g., notify the police

• Unlike solicitation and attempt, conspiracy does not merge into the crime the parties are conspiring to commit

Attempt

• Intent to commit a crime

• Affirmative act beyond mere preparation

  • That constitutes a “substantial step” (MPC)

  • “Dangerous proximity” to completion (CL)

Defenses:

• Abandonment

  • Majority rule—cannot abandon

  • MPC—abandonment must be fully voluntary and complete

• Legal impossibility

Note: this will merge into the actual crime.

Accomplice liability

An accomplice is someone who:

1. With the intent to assist the principal and the intent that the principal commit the crime

   • Mere knowledge that an action will aid or abet is insufficient to establish intent that the principal commit the crime

     • So, e.g., selling goods for to someone at market price with the knowledge that they will use those goods to commit a crime but with no other mental state will not result in accomplice liability

     • However… if the accomplice benefits in some fashion such that they have some stake in venture, or they are deploying specialized skills, then that might be sufficient for a jury to infer purpose rather than just knowledge

2. Actually aids, counsels, or encourages the principal before or during the commission of the crime

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

Note difference between:

• Modernly, all are collapsed under “accomplice”

  • Principal in first degree—does the crime

  • Principal in second degree—help with the crime and are actually present at the crime

  • Accessory before the fact—gives aid but not present at crime. This person will be liable as an accomplice still.

• Accessory after the fact—helps avoid apprehension, guilty of obstruction. The underlying crime must be complete and must be a felony

  • This does NOT result in accomplice liability; it’s charged as a separate crime, e.g., obstruction

Defenses

• Self-defense

  • Reasonable use of force

  • If D is the initial aggressor:

    • Then to invoke self-defense he must:

      • Withdraw

      • Communicate the withdrawal

    • Exception:

      • If the other person suddenly escalates a minor fight into one involving deadly force, without giving D the opportunity to withdraw, then D is again permitted to use force, including deadly force, for his defense

• Defense of others

  • Reasonable belief in necessity/threat

  • Reasonable use of force

• Defense of property

  • Reasonable force

  • No deadly force

• Insanity

  • M’Naghten test (CL)

    • 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, AND

    • D is unable to control conduct

  • MPC

    • D has a mental disease that makes him lack the capacity either to:

      • Appreciate the criminality of his conduct, OR

      • Conform his conduct to the requirements of the law

  • Durham test » ABOLISHED

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

• 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

• Duress

  • An imminent threat of death or great bodily harm (e.g., “will harm you tomorrow” is not imminent)

Fourth Amendment - arrest and arrest warrants

• Warrant must be based on probable cause

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

• When do you need a warrant?

  • Public place—not required

  • At home—required if a non-emergency arrest

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 - exceptions to the warrant requirement

• SILA

  • Lawful arrest

  • Search happens at the same time and in the same place as the arrest

  • Search is of:

    • The person

    • The car they’re in only if:

      • Arrestee is unsecured, OR

      • Police reasonably believe that the evidence of the offense for which the person was arrested may be found in the vehicle

  • Search of cell phones incident to lawful arrest = illegal

• Automobile exception (search the entire car)

  • Requires probable cause

• Plain view

  • Officers must be:

    • Legitimately present at the location in which they have the plain view

    • The illegal nature of the item must be immediately apparent

• Consent

• Terry stops / stop and frisk

  • Stop: Requires reasonable suspicion supported by articulable facts, which is less than probable cause

  • Frisk: Officer entitled to pat down the outer clothing to check for weapons

• Evanescent evidence

  • Evidence must be fleeting and at risk of disappearing before police can obtain a warrant

• Hot pursuit

  • Within 15 minutes behind D

• Exigent circumstances

  • Prevent imminent destruction of evidence

  • Prevent imminent harm to persons

  • Searching for someone while in hot pursuit of a felon

• Inventory searches

  • A search prior to D being incarcerated, to search his entire person and vehicle

• Public school searches

  • Random drug tests ok

  • Warrantless searches of personal effects ok to investigate violations of school rules

Fifth Amendment - Miranda warnings and when Miranda triggers

Substance of warning:

• Right to remain silent

• Anything D says can be used against D

• D has right to attorney

When Miranda triggers:

• Suspect is in custody

  • Custody = at time of interrogation, a reasonable person would not feel free to leave; court will ask if the situation has the same coercive elements as are present at the station house during questioning

• Suspect is being interrogated

  • Interrogation = any conduct where police know or should know that they might elicit an incriminating response from the suspect

• Exceptions:

  • Public safety

  • Probation interviews

  • Routine traffic stops

  • Do not apply to uncharged witnesses in grand jury hearings

• Cannot re-Mirandize until 14 days later

Miranda rights can be waived:

• Voluntarily

• Knowingly, intelligently

Fifth Amendment - double jeopardy

• Cannot be tried for the same offense twice

  • Two crimes do not constitute the same offense if they each require proof of different elements—e.g., reckless driving and involuntary manslaughter require proofs of different elements, and so D can be tried for both

• Applicable if a jury (for jury trial) or first witness (for bench trial) is sworn in

Note: preliminary hearings and grand jury hearings do not qualify!

Sixth Amendment - right to counsel

• Applies post-charge » any time after “arraigned, charged”

• Has right to counsel t all critical stages of proceedings

  • This means no planted agents in cells under 6A, even though under 5A planted agents in cells are fine

  • Line-up, show-up, or sentencing

  • Not applicable for photo-book identification, 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

• For adverse/hostile witnesses, D may compel their testimony or cross-examine them

• Prosecution may not admit testimonial evidence against D unless the declarant may be made available for cross-examination at trial

  • 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

• D can waive this right

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

  • If it’s possible to get less than 6 months, the offense is presumed petty (i.e., not serious)

  • Sentences across multiple counts do not aggregate

• No right to a jury of 12, but the minimum is 6

  • All verdicts (in state and federal court alike) must be unanimous

• Jurors must be impartial

• There is a constitutional right that the jury be drawn from a pool that reflects a cross-section of the community, but no requirement that the final jury reflect a fair cross-section

• 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:

  • Prejudice to D (main factor)

  • Length of delay

  • Reason for delay

  • 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

Fruit of the poisonous tree:

• 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

  • Except that evidence that comes from violations of Miranda is not excluded, unless the officer acted in bad faith in getting the information

Fruit of the poisonous tree exceptions:

• There’s an independent source

• The evidence would be discovered inevitably

• Intervening act of free will, e.g., D comes back to station to confess

Other exceptions:

• 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 probable cause, or the warrant was defective on its face

• Violations of the knock-and-announce rule do not result in the obtained evidence getting excluded

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 (14A EPC)

  • Pre-trial identifications that are so unnecessarily suggestive as to produce a misidentification are unconstitutional and should be excluded from the courtroom unless the state can show that the identification is reliable

  • Note that lineups are not testimonial and thus are not protected by 5A right against self-incrimination

• Post-charge identifications in the form of line-ups and show-ups give rise to the right to counsel

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 [?]

Approach to murder

1. Preliminary issues

   • Accomplice liability and inchoate offenses

2. Define murder: murder is the unlawful killing of another person with malice

3. Analyze the four ways to establish malice

   1. Intent to kill

   2. Intent to grievously injure

   3. Reckless indifference (depraved heart)

   4. Felony murder

4. Determine if there are mitigating circumstances that drop it to a version of manslaughter

   • Intents ==> heat of passion or imperfect self-defense (voluntary)

   • Reckless indifference ==> gross negligence (involuntary)

   • Felony murder ==> misdemeanor murder (involuntary)

5. If murder, determine degree of murder

   • Intentional or felony ==> first

   • Everything else ==> second

6. Consider defenses

   • Self-defense

   • Defense of others

   • Defense of property

   • Insanity

   • Provocation

Jurisdiction

A state has jurisdiction if:

• The conduct occurs there; or

• The consequences occur there

Merger

Inchoate crimes—solicitation and attempt—will merge into the substantive offense if D commits the substantive offense.

Strict liability crimes

• Generally limited to administrative, regulatory, or morality subjects and will be encoded in statutes that lack “knowingly” or “willingly” or “intentionally” or the like.

False imprisonment

• Unlawful confinement of a person

• Without their consent

Note: this will merge into kidnapping once the victim is moved or concealed.

4th Amendment - Terry Stops

• Stop: Police may briefly detain you, even without probable cause to arrest, so long as they have a reasonable suspicion supported by articulable facts

  • Test for reasonable suspicion = totality of the circumstances

• Search: If there is a reasonable suspicion that you have weapons, they can do a plain-feel pat down

• Automobile stops

  • Police may stop a car if they have at least a reasonable suspicion that the driver has violated the law, even if the stop is otherwise pre-textual

  • During a routine traffic stop, dogs may sniff search without violating 4A

    • A dog “alert” can form the basis for probable cause

Searches and seizures, general approach

1. Standing

   • To suppress, the violation must be of the defendant’s constitutional rights rather than of the rights of some third party

2. Government conduct

   • Police, or

   • Private individual acting at the direction of the police

3. Search/seizure

   • Seizure: Was D detained in such a way as to make him not feel free to leave?

   • Search: Was there a reasonable expectation of privacy?

     • Open fields receive no protections, even if they’re adjacent to the home

4. Was there a valid search warrant?

   • Neutral magistrate

   • Probable cause

     1. If the sole evidence is an anonymous tip, that won’t be enough, but it’s ok if the evidence is anonymous tip + some other evidence

   • Particularity: describes place to be search and things to be seized

   • Note: a warrant for a place does not authorize a search of all persons in that place, unless they were named in the warrant

   • Note: warrant should be presented with a knock and announcement at the door

   • But a violation of this requirement does not trigger the exclusionary rule

5. If the warrant is invalid, does the officer’s good faith save it?

   • Can’t use good faith exception if:

     • No probable cause

     • No particularity

     • Police or prosecutor lied

     • Judge was biased

6. If no warrant, or if warrant is invalid and not saved by good faith, is there an exception?

   • Details on the 4A Exceptions card

Miranda rights, how to invoke them, and what the invocations do

• Invoke right to counsel

  • Must be unambiguous

  • Police must cease all questioning until the attorney gets there, or until D reinitiates questioning himself

• Invoke right to remain silent

  • Must be unambiguous

  • Police must cease questioning unless:

    • Substantial amount of time has passed

    • D is re-Mirandized

    • Questions pertain to a crime other than the crime under discussion when D invoked the right

Fifth Amendment - right against self-incrimination

• Applies in any proceeding in which testimony that could tend to incriminate is sought

  • Request to provide name during Terry stop does not violate

  • If you answer questions on an administrative form, the answers can be used in court

  • If no possibility of incrimination (e.g., if statute of limitations has run) then no privilege

• A witness may be compelled to testify if granted “use and derivative use” immunity. “Transactional” immunity (which applies to prosecutions for crimes, rather than use of certain evidence) also suffices but is broader than the requirement.

• Invoking it

  • Criminal D cannot even be asked to take the stand in his own trial and it’s impermissible even to draw the jury’s attention to the fact that D hasn’t testified

  • In every other situation, witness can’t avoid getting sworn in, and then just has to listen to the questions and specifically invoke the privilege on the stand

• Other notes

  • Prosecutors may not comment on silence after a Miranda warning, but silence before the warning is admissible

  • Testimony obtained by promise of immunity is coerced and involuntary and thus cannot be used at trial

Right to testify in own trial

This is guaranteed by 6A. If you want to perjure yourself, your attorney must counsel you against doing so and then attempt to withdraw from the case.

There is a requirement of competence, but the court may assigned advisory counsel to assist D.