Criminal Law and Procedure

State Action and Personal Rights

The Fourth Amendment restricts searches and seizures by government actors and private persons acting as government agents. Its protections are personal; a defendant may challenge government conduct only if the defendant’s own person, house, papers, effects, or reasonable expectation of privacy was invaded.

What Constitutes a Search

A search occurs when the government physically intrudes on a constitutionally protected person, house, paper, or effect to obtain information, or violates a reasonable expectation of privacy that the person actually held and society recognizes as reasonable.

Open Fields and Curtilage

The home and its curtilage receive strong protection. Open fields outside the curtilage are not protected by the Fourth Amendment even if fenced or posted. Curtilage depends on proximity to the home, inclusion within an enclosure, the nature of uses, and steps taken to shield the area from observation.

Information Exposed to Third Parties

A person generally lacks a reasonable expectation of privacy in matters knowingly exposed to the public or voluntarily conveyed to third parties, subject to heightened protection for certain comprehensive or revealing records.

Seizure of a Person

A person is seized when an officer applies physical force with intent to restrain or, through a show of authority, causes a reasonable person not to feel free to leave or terminate the encounter and the person submits. A seizure must be justified at its inception and reasonably limited in scope and duration.

Seizure of Property

Property is seized when the government meaningfully interferes with a possessory interest. A temporary seizure may be reasonable when supported by the level of suspicion appropriate to its nature and duration.

Warrant Requirements

A valid search warrant must be issued by a neutral and detached magistrate, supported by probable cause based on facts under the totality of the circumstances, and particularly describe the place to be searched and persons or things to be seized. Officers must generally act within the warrant’s scope.

Probable Cause

Probable cause exists when facts and circumstances would lead a reasonable person to believe that evidence, contraband, or a person subject to arrest will be found in the place to be searched, or that the suspect committed an offense. It is a practical probability, not proof beyond a reasonable doubt.

Arrest

Police may arrest in a public place without a warrant when they have probable cause. Entry into a suspect’s home to make a routine arrest generally requires an arrest warrant and reason to believe the suspect is present; entry into a third party’s home generally requires a search warrant, consent, or exigency.

Investigatory Stop

An officer may briefly stop a person when specific and articulable facts create reasonable suspicion that criminal activity is afoot. The stop must be no longer and no more intrusive than reasonably necessary to investigate that suspicion.

Protective Frisk

During a lawful stop, an officer may pat down outer clothing for weapons if the officer reasonably suspects the person is armed and dangerous. The frisk is limited to finding weapons, but contraband whose identity is immediately apparent through lawful touch may be seized.

Search Incident to Arrest

After a lawful custodial arrest, police may search the arrestee’s person and the area within the arrestee’s immediate control to protect officers and preserve evidence. A vehicle passenger compartment may be searched incident to arrest only when the arrestee could access it at the time of search or it is reasonable to believe evidence of the offense of arrest is inside.

Automobile Exception

Police may search a readily mobile vehicle without a warrant when they have probable cause to believe it contains evidence or contraband. The search may extend to any area or container in the vehicle where the object of the search could be found.

Plain View

Police may seize an item in plain view when they are lawfully present, have lawful access to the item, and its incriminating character is immediately apparent. The doctrine justifies seizure, not an otherwise unlawful entry or search.

Consent

A warrantless search is valid when voluntary consent is given by a person with actual or apparent authority. Voluntariness is determined from the totality of the circumstances; knowledge of the right to refuse is relevant but not required. The search may not exceed the consent’s objective scope, and consent may be limited or withdrawn.

Third-Party Consent

A person with common authority over premises or effects may consent. Reasonable reliance on apparent common authority may validate the search. A physically present co-occupant’s express refusal ordinarily controls as to shared premises, but a prior refusal does not necessarily control after the objector is lawfully removed.

Exigent Circumstances

Police may act without a warrant when objectively reasonable circumstances require immediate action, including emergency aid, hot pursuit, imminent destruction of evidence, or a serious threat to safety. The scope and duration must be tied to the emergency, and police may not rely on an exigency they created by actual or threatened Fourth Amendment violation.

Inventory and Administrative Searches

Police may conduct a standardized inventory of lawfully impounded property to protect property, guard against claims, and ensure safety, so long as the inventory is not a pretext for investigation. Administrative and special-needs searches may be reasonable without individualized suspicion when the primary purpose is distinct from ordinary crime control and the program is appropriately limited.

Exclusionary Rule

Evidence obtained in violation of the Fourth Amendment is generally inadmissible in the prosecution’s case in chief against the person whose rights were violated. The rule generally does not apply in grand jury proceedings, civil proceedings, parole revocation, or to impeachment of the defendant’s testimony.

Fruit of the Poisonous Tree

Derivative evidence must also be excluded when obtained by exploiting an unlawful search or seizure. It is admissible if the government proves an independent source, inevitable discovery, sufficient attenuation from the illegality, or another recognized exception.

Good-Faith Exception

Evidence is generally not excluded when officers reasonably rely on a facially valid warrant, binding precedent, or a nonrecurring recordkeeping error. Reliance is not reasonable when the affidavit is so lacking in probable cause that belief is unreasonable, the warrant is facially deficient, the magistrate abandons neutrality, or the officer knowingly or recklessly misleads the magistrate.

Knock and Announce

Officers executing a warrant generally must knock, announce authority and purpose, and wait a reasonable time before entry unless reasonable suspicion supports an exception. A violation of knock-and-announce requirements does not ordinarily require suppression of evidence found during an otherwise valid search.

Due Process Voluntariness

A confession is inadmissible if, under the totality of the circumstances, police coercion overbore the suspect’s will and made the statement involuntary. Relevant circumstances include threats, violence, promises, deception, duration and conditions of questioning, and the suspect’s age, education, intelligence, and condition. Coercive state action is required.

Warning Requirement Trigger

Warnings are required before custodial interrogation by a known government agent. Custody exists when a reasonable person in the suspect’s position would not feel free to terminate the encounter and the circumstances impose restraints comparable to formal arrest. Interrogation includes express questioning and words or conduct police should know are reasonably likely to elicit an incriminating response.

Required Custodial Warnings

Before custodial interrogation, police must inform the suspect of the right to remain silent, that statements may be used against the suspect, the right to consult with and have counsel present during questioning, and the right to appointed counsel if indigent. The substance must be reasonably conveyed; no precise formula is required.

Waiver of Custodial-Interrogation Rights

A suspect may waive custodial-interrogation rights if the waiver is knowing, intelligent, and voluntary. The prosecution bears the burden of proving waiver from the totality of the circumstances. Waiver may be express or implied by conduct after adequate warnings, but silence alone is insufficient.

Invocation of Silence

A suspect must unambiguously invoke the right to remain silent. Police must scrupulously honor the invocation, stop questioning, and may later resume only under circumstances showing respect for the choice, commonly after a significant break, fresh warnings, and questioning about a different crime.

Invocation of Counsel During Custodial Interrogation

A suspect must unambiguously request counsel. Once invoked, all custodial interrogation must cease until counsel is present, the suspect initiates further communication and validly waives, or the suspect experiences a break in custody long enough to end the protection. Police may not reinitiate merely by giving fresh warnings.

Public-Safety Exception

Police may ask questions reasonably prompted by an immediate concern for public or officer safety before giving the required warnings. Statements and resulting evidence are admissible to the extent the questioning is objectively directed at resolving the emergency rather than eliciting a confession.

Routine Booking and Undercover Questioning

Routine biographical questions reasonably related to booking are ordinarily not interrogation. custodial-interrogation also generally does not apply when a suspect speaks to an undercover agent or informant whom the suspect does not know is acting for police because the coercive police-dominated setting is absent.

Consequences of a Warning Violation

A voluntary statement obtained without required warnings is excluded from the prosecution’s case in chief but may generally be used to impeach the defendant. Physical evidence derived from a voluntary unwarned statement is ordinarily admissible. An actually coerced statement and its fruits are subject to broader exclusion.

Sixth Amendment Attachment

The Sixth Amendment right to counsel attaches when adversarial judicial proceedings begin, such as by formal charge, indictment, information, arraignment, or initial appearance. It does not attach merely upon arrest or investigation.

Critical Stages

After attachment, the defendant is entitled to counsel at critical stages where the absence of counsel may substantially prejudice the defense, including postcharge interrogation, arraignment, preliminary hearings, plea negotiations, trial, sentencing, and a first appeal as of right.

Offense Specificity

The Sixth Amendment right is offense specific. Invocation for one charged offense does not itself bar questioning about an uncharged offense unless it is the same offense under the required-elements test. the custodial-interrogation counsel protection, once invoked during custody, is not offense specific.

Deliberate Elicitation

After the Sixth Amendment right attaches, the government may not deliberately elicit incriminating statements about the charged offense in counsel’s absence unless the defendant validly waives the right. Deliberate elicitation includes intentionally using an agent to stimulate statements, but not merely listening to volunteered remarks.

Sixth Amendment Waiver

A defendant may waive the postattachment right to counsel knowingly, intelligently, and voluntarily. Proper the required warnings and waiver are generally sufficient for waiver during police-initiated interrogation, provided the defendant has not invoked the separate custodial-interrogation right to counsel.

Remedy for Sixth Amendment Violation

A statement obtained through deliberate elicitation in violation of the Sixth Amendment is excluded from the prosecution’s case in chief but may generally be used to impeach the defendant if voluntary. Derivative physical evidence is not necessarily excluded.

Right to Counsel at Identification Procedures

After formal charges, the defendant has a right to counsel at a live lineup or showup because it is a critical stage. There is generally no Sixth Amendment right to counsel at a photographic identification, handwriting sample, fingerprinting, or other procedure that does not require counsel’s presence to preserve a fair trial.

Due Process Identification Rule

An identification is excluded on due process grounds only when police used an unnecessarily suggestive procedure and, considering the totality of the circumstances, the procedure created a substantial likelihood of misidentification. Reliability factors include the witness’s opportunity to view, degree of attention, accuracy of prior description, certainty, and time elapsed.

Independent Source for In-Court Identification

Even when an out-of-court identification is excluded, an in-court identification may be admitted if the prosecution proves it rests on observations independent of the unlawful procedure.

Postcharge Jailhouse Informants

After the Sixth Amendment attaches, the government violates the right by intentionally using a jailhouse informant or other agent to elicit statements about the charged offense outside counsel’s presence. A passive listener who does not prompt or encourage statements does not deliberately elicit them.

Voluntariness and Mental Condition

A suspect’s youth, intoxication, mental illness, pain, or low intelligence is relevant to voluntariness but does not alone make a statement involuntary without coercive police conduct.

Actus Reus

A crime generally requires a voluntary act, an omission when the defendant had a legal duty and ability to act, or possession when the defendant knowingly obtained the item or had sufficient time to terminate control. Thoughts and status alone are not punishable acts.

Common-Law Malice

Malice crimes generally require reckless disregard of an obvious or high risk that the prohibited harm will occur. Malice may be inferred from conduct and is not limited to spite or ill will.

Specific and General Intent

Specific-intent crimes require an additional purpose or knowledge beyond the act itself and may permit defenses such as voluntary intoxication and reasonable mistake of fact. General-intent crimes require awareness of the conduct or circumstances and ordinarily permit only a reasonable mistake of fact.

Strict Liability

A strict-liability offense dispenses with mens rea as to one or more elements. Courts are reluctant to infer strict liability for serious common-law crimes and look for clear statutory language, regulatory context, modest penalties, and protection of public welfare.

Actual and Proximate Causation

A result crime requires actual cause and proximate cause. Actual cause ordinarily means the result would not have occurred but for the defendant’s conduct. Proximate cause exists when the result is a natural and foreseeable consequence and no superseding event breaks the chain.

Common-Law Murder

Murder is an unlawful killing with malice aforethought. Malice exists through intent to kill, intent to cause serious bodily injury, reckless indifference to an unjustifiably high risk to human life, or intent to commit a qualifying felony.

First-Degree Murder

First-degree murder generally includes a deliberate and premeditated killing and killings specified by statute, including certain felony murders. Premeditation requires actual reflection but may occur in a short time; deliberation requires a cool decision rather than an uncontrolled impulse.

Voluntary Manslaughter

Voluntary manslaughter is an intentional killing mitigated by adequate provocation or, in many jurisdictions, an unreasonable but honest belief in the need for deadly self-defense. Adequate provocation would cause a reasonable person to lose self-control, actually provoked the defendant, and occurred without sufficient cooling time.

Involuntary Manslaughter

Involuntary manslaughter is an unintentional killing caused by criminal negligence or recklessness, or by commission of an unlawful act that does not support felony murder. The required culpability is greater than ordinary civil negligence.

Felony Murder

Felony murder is a killing caused during the commission or attempted commission of a qualifying felony. The felony must be independent of the killing, the death must be sufficiently connected to the felony, and the killing must occur before the felon reaches temporary safety. Jurisdictions differ on liability when a nonfelon causes the death.

Larceny

Larceny is the trespassory taking and carrying away of tangible personal property of another with intent to permanently deprive the owner. The intent must exist at the taking, subject to continuing-trespass doctrine when the initial taking was wrongful.

Embezzlement

Embezzlement is the fraudulent conversion of property of another by a person in lawful possession of it. Conversion requires serious interference with the owner’s rights; intent to restore equivalent property ordinarily is not a defense.

False Pretenses

False pretenses is obtaining title to another’s property through an intentional material misrepresentation of present or past fact on which the victim relies. A promise about the future may qualify when made with a present intent not to perform if governing law treats that intent as an existing fact.

Larceny by Trick

Larceny by trick occurs when the defendant obtains possession, but not title, through fraud with intent to permanently deprive. The victim’s consent to possession is vitiated by the fraud.

Robbery

Robbery is larceny from the victim’s person or presence accomplished by force or threat of immediate physical harm. The force or intimidation must be used to obtain or retain the property during the taking.

Burglary

At common law, burglary is breaking and entering the dwelling of another at night with intent to commit a felony inside. Modern statutes commonly expand the protected structures, times, methods of entry, and intended offenses. The required criminal intent must exist at entry.

Arson

At common law, arson is the malicious burning of the dwelling of another. Burning requires charring of the structure, and malice includes intentional or reckless burning. Modern statutes commonly expand the offense to other structures and property.

Possession and Receiving Stolen Property

Possession may be actual or constructive, but constructive possession requires knowledge and the ability and intent to exercise control. Receiving stolen property requires receiving, possessing, concealing, or disposing of property known to be stolen, with the requisite dishonest intent; property recovered by police may no longer legally be stolen under the traditional rule.

Attempt

Attempt requires specific intent to commit the target offense and an act beyond mere preparation. The act must constitute a substantial step strongly corroborating criminal purpose under the modern approach or come dangerously close under the common-law approach. Factual impossibility is not a defense; true legal impossibility may be.

Abandonment of Attempt

At common law, abandonment is not a defense once attempt is complete. Under the modern rule, complete and voluntary renunciation may be a defense if motivated by a genuine change of heart rather than fear of detection, increased difficulty, or postponement.

Solicitation

Solicitation is asking, encouraging, or commanding another person to commit a crime with intent that the crime be committed. The offense is complete upon the request even if the person refuses. Solicitation generally merges into the completed target offense but not necessarily into conspiracy.

Conspiracy

Conspiracy requires an agreement between at least the required number of persons, intent to agree, and intent to achieve an unlawful objective. Most modern statutes also require an overt act by any conspirator. The agreement may be inferred from coordinated conduct.

Conspirator Liability

A conspirator may be liable for substantive crimes committed by another conspirator in furtherance of the conspiracy and reasonably foreseeable as a consequence of the agreement. Liability continues until the conspiracy ends or the conspirator effectively withdraws.

Withdrawal from Conspiracy

Withdrawal generally is not a defense to the completed conspiracy but may end liability for later crimes. The defendant must take affirmative steps reasonably calculated to notify co-conspirators or disclose the scheme to authorities in time to thwart it.

Accomplice Liability

An accomplice is liable for the principal offense when the accomplice aids, encourages, or facilitates the crime with intent to assist and the mental state required for the offense. Mere presence, knowledge, or failure to stop the crime is insufficient absent a duty or purpose to aid.

Scope of Accomplice Liability

An accomplice is liable for the intended crime and other crimes that are the natural and probable consequences of the aided crime under jurisdictions using that doctrine. Modern approaches may instead require the culpability specified for each resulting offense.

Withdrawal by Accomplice

An accomplice may avoid liability for later commission by timely repudiating encouragement, neutralizing prior aid when possible, or warning authorities or otherwise making reasonable efforts to prevent the crime. Withdrawal must occur before the crime becomes inevitable.

Self-Defense

A person may use nondeadly force when reasonably believing it necessary to prevent imminent unlawful force. Deadly force is permitted only when reasonably believed necessary to prevent imminent death or serious bodily harm, or in specified serious crimes. The initial aggressor generally may not claim self-defense unless the aggressor withdraws and communicates withdrawal or the victim escalates nondeadly force to deadly force.

Duty to Retreat

The majority rule imposes no duty to retreat before using deadly force when otherwise justified. In retreat jurisdictions, a person must retreat if safely possible, subject to exceptions commonly including the home and sometimes the workplace.

Defense of Others

A person may use force to defend another when the person reasonably believes the other would be entitled to use that force in self-defense. The defender is generally protected by a reasonable mistake about the need for defense under the modern rule.

Defense of Property and Habitation

Reasonable nondeadly force may be used to prevent or terminate unlawful interference with property after a request to desist when feasible. Deadly force may not be used solely to protect property, but may be used when the intrusion also creates a reasonable threat of death or serious bodily harm or falls within a narrowly defined habitation rule.

Necessity

Necessity excuses criminal conduct when the defendant reasonably chooses the lesser of two imminent harms, did not substantially create the emergency, had no adequate lawful alternative, and the harm avoided exceeded the harm caused. Necessity generally is unavailable for intentional homicide under the traditional rule.

Duress

Duress excuses a crime committed under a threat of imminent death or serious bodily harm to the defendant or another when a person of reasonable firmness would have been unable to resist and no reasonable escape existed. Traditionally duress is not a defense to intentional homicide.

Insanity

Depending on the jurisdiction, insanity may be established when mental disease or defect caused the defendant not to know the nature or wrongfulness of the act, rendered the defendant unable to control conduct, caused the criminal act, or left the defendant without substantial capacity to appreciate criminality or conform conduct to law. The defendant must satisfy the jurisdiction’s test.

Voluntary Intoxication

Voluntary intoxication may negate the specific intent required for a specific-intent offense if the defendant was so intoxicated as to lack that intent. It is not a defense to malice, recklessness, negligence, strict liability, or ordinary general intent.

Involuntary Intoxication

Involuntary intoxication may excuse criminal liability when it renders the defendant unable to understand the nature or wrongfulness of conduct under the applicable insanity standard. It may also negate a required mental state.

Mistake of Fact

A mistake of fact is a defense when it negates the required mental state. For specific intent, even an unreasonable honest mistake may suffice; for general intent, the mistake ordinarily must be honest and reasonable. Mistake is generally no defense to strict liability.

Mistake of Law

Ignorance or mistake about criminal law is generally no defense. Limited exceptions may apply when the law was not reasonably available, the defendant reasonably relied on an official interpretation by an authorized official, or knowledge of illegality is itself an element.

Criminal Battery

Criminal battery is the unlawful application of force to another resulting in harmful or offensive contact. At common law it is a general-intent offense; modern statutes commonly grade it by injury, weapon, victim, or culpability.

Criminal Assault

Criminal assault is either an attempted battery or intentional creation of reasonable apprehension of imminent bodily harm, depending on the jurisdiction. An attempted-battery form requires intent and a sufficient act toward contact even if the victim is unaware.

Rape

At common law, rape required unlawful sexual intercourse by force and without consent. Modern statutes define prohibited sexual penetration more broadly and may base liability on force, threat, incapacity, lack of consent, or specified relationships, with marital immunity generally abolished.

Statutory Rape

Statutory rape is sexual intercourse or conduct with a person below the age of consent. It is traditionally strict liability as to age, though statutes may permit a reasonable-mistake defense or close-in-age exception. Consent by the minor is not a defense.

Kidnapping

Kidnapping is unlawful confinement of a person in a bounded area or movement of a person by force, threat, or fraud, often with an additional purpose or substantial movement required by statute. Movement merely incidental to another offense may merge under some statutes.

Territorial Jurisdiction

A jurisdiction may prosecute when conduct or a result constituting an element occurs within its territory, conduct outside is intended to cause a prohibited result inside, or another recognized jurisdictional basis exists.

Competency to Stand Trial

A defendant may not be tried while unable to understand the proceedings or rationally assist counsel. When reasonable doubt arises, the court must conduct an adequate inquiry; competency concerns present ability, not mental state at the time of the offense.

Right to a Speedy Trial

Whether delay violates the constitutional speedy-trial right depends on length and reason for delay, the defendant’s assertion of the right, and prejudice. The right attaches upon arrest or formal accusation; dismissal with prejudice is the constitutional remedy.

Public Trial

A criminal defendant has a right to a public trial. Closure requires an overriding interest likely to be prejudiced, a closure no broader than necessary, consideration of reasonable alternatives, and findings supporting the closure.

Impartial Jury and Venue

A defendant is entitled to trial by an impartial jury drawn from a fair cross-section of the community in the state and district where the crime occurred. Pervasive prejudice may require careful voir dire, change of venue, continuance, or other protective measures.

Guilty Plea

A guilty plea must be knowing, voluntary, and intelligent. The court must address the defendant personally and ensure understanding of the charge, maximum and mandatory penalties, trial rights waived, and the plea’s consequences, and must establish a factual basis.

Plea Bargain Enforcement

A prosecutor must honor a material promise that induced a guilty plea. A defendant generally may withdraw before acceptance for a fair reason and after acceptance only under stricter standards. The court is not bound by a sentencing recommendation unless the governing plea arrangement so provides.

Double Jeopardy Attachment

In a jury trial, jeopardy attaches when the jury is sworn; in a bench trial, when the first witness is sworn; and upon acceptance of a guilty plea. The clause protects against a second prosecution for the same offense after acquittal or conviction and against multiple punishments beyond legislative intent.

Same-Offense Test

Two offenses are the same for double-jeopardy purposes when each does not require proof of a fact the other does not. A greater and lesser included offense are ordinarily the same offense. Separate sovereigns may prosecute the same conduct under their respective laws.

Retrial After Mistrial

Retrial is permitted after a hung jury or manifest necessity. When the defendant requests a mistrial, retrial is generally allowed unless prosecutorial conduct was intended to provoke the request. Retrial after reversal for trial error is allowed; reversal for legally insufficient evidence bars retrial.

Cruel and Unusual Punishment

Punishment may not be grossly disproportionate to the offense, and certain punishments are categorically barred based on the offense or offender. Death is generally unavailable for nonhomicide crimes against individuals and for persons who were juveniles or intellectually disabled at the time of the offense.

Burden of Proof

The prosecution must prove every element beyond a reasonable doubt. A state may place on the defendant the burden of proving a true affirmative defense, but may not shift the burden of disproving a fact that is part of an offense element.

Presumptions in Criminal Cases

A mandatory presumption that relieves the prosecution of proving an element violates due process. A permissive inference is valid when the proven fact rationally supports the inferred fact and the jury remains free to reject it.

Harmless Constitutional Error

Most constitutional trial errors permit affirmance only when the prosecution proves beyond a reasonable doubt that the error did not contribute to the verdict. Structural errors affecting the framework of trial generally require reversal without ordinary harmless-error analysis.

Right to Appeal and Counsel

There is no general federal constitutional right to an appeal, but when a state provides a first appeal as of right it must administer it fairly and provide counsel to an indigent defendant. The right to appointed counsel does not generally extend to discretionary review.