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s (parent, spouse) (iv) Voluntarily assuming a duty of care to someone else and then failing adequately to do it (v) Where ∆s conduct created peril] MENS REA (guilty mind) CONCURRENCE (Act and mental state existed at the same time) CAUSATION AND HARMFUL RESULT INTENT (Mens Rea) SPECIFIC INTENT CRIMES: Solicitation, attempt, conspiracy, assault, larceny, embezzlement, false pretenses, robbery, burglary, and forgery; Defenses only available to specific intent crimes: (1) voluntary intoxication (2) mistake (either reasonable or unreasonable) MALICE: Murder and Arson; Duress not a defense to Homicide GENERAL INTENT CRIMES: Intent is inferred from the act; Transferred Intent: if ∆ intended to harm victim 1 but harmed victim 2, her intent is transferred. Never merge different crimes that have different victims (shoot at 1, hit 2= attempt and murder) STRICT LIABILITY: Any defense that negates intent is a defense to strict liability; Mistake of fact not a defense; Statutory rape ACCOMPLICE LIABILITY Accomplices are liable for the crime itself AND all other foreseeable crimes. Not just present; MUST be actively in on the crime DEFENSES INSANITY: (1) M’Naghten Rule (lacked ability to know wrongfulness of actions) (2) Irresistible Impulse Rule (unable to control actions or conform to law) (3) Durham Rule (But for test: mental disease made me do it) (4) MPC (lacked ability to conform conduct to law) INTOXICATION: (1) Involuntary Intoxication (form of insanity and a defense to ALL crimes, including strict liability); (2) Voluntary Intoxication (defense ONLY to specific intent crimes) INFANCY: (Under 7: no criminal liability; Under 14, rebuttable presumption) SELF DEFENSE: Use proper force to respond DEFENSE OF OTHERS: Only if they had right to self defense DEFENSE OF DWELLING: Deadly force never allowed to protect property DURESS: Defense to all crimes except homicide MISTAKE OF FACT: (1) Specific intent crime- Any mistake (2) Malice and General Intent crimes- reasonable mistake only (3) Strict liability- NEVER allowed CONSENT: Almost never a defense ENTRAPMENT: Almost never available • Magistrate wholly abandoned his judicial role.* o Impeachment: (Confessions inadmissible because of Miranda warnings can be used to impeach the credibility of the ∆.) (All illegally seized evidence can be used to impeach the ∆- just the ∆, not all witnesses). Fruit of the Poisonous Tree: not only must illegally obtained evidence be excluded, but also all evidence obtained or derived from exploitation is excluded. Exceptions*** o Independent Source Inevitable Discovery Intervening Acts of Free Will by ∆: i.e. ∆ was o
illegally arrested on Friday, on Saturday he was let out on bail, Monday he hired an attorney, and Tuesday he went to the police and confessed. Intervening Acts broke the chain.
Arrest Warrants • Public Place: Arrest Warrants are generally not required for an arrest in a public place. • Non-emergency arrest of a person in his home requires Arrest Warrant • Station House Detention: police need PROBABLE CAUSE to arrest you to get you to come to the police station either for fingerprinting or interrogation. Search & Seizure (4th)**** • Test Does the Person have a 4th Amendment Right? o (1) Government Conduct; (2) Reasonable expectation of privacy o Do Police have a valid search warrant? if warrant is good, then you have a valid search if no warrant, is there a valid exception? If warrant is invalid, is there an exclusionary exception? • Government Conduct (= police, on or offer duty; = private individuals acting at direction of police; ≠ privately paid police, unless deputized with power to arrest, i.e. campus police) • Reasonable Expectation of Privacy (i.e. STANDING): o Automatic Standing: (own premises searched; live on premise searched; overnight guest) Sometimes Standing: (own property seized; legitimately present o when search took place) No standing: (1) sound of your voice; (2) style of handwriting; (3) o paint on outside of your car; (4) account records held by bank; (5) monitoring location of car on public street or in driveway; (6) anything that can be seen across open fields; (7) anything that can be seen from flying over in the public airspace; (8) odors emanating from your luggage; (9) garbage on your curb awaiting pickup. o 3 Specific Standing Situations: (1) overnight guests do not have standing (2) passengers in car who claim they don’t own their car and don’t claim property in the car do not have standing just b/c they were present when the search took place. (3) an individual briefly on the premises of someone else solely for the purposes of cutting up drugs do not have standing. • Valid Warrant: Requirements o (1) PROBABLE CAUSE: (can use hearsay, use informants, even anonymous ones) o (2) Warrant must be valid and precise (must state with PARTICULARITY the place to be search and the things to be searched for). o (3) Neutral and detached Magistrate: must be neutral from law enforcement. Good faith defense is not available if magistrate is not neutral. • Exceptions to Warrant Requirement: o (1) Search Incident to an Arrest: (must be contemporaneous; Grab area can be searched) o (2) Automobile Exception (if police have probable cause to believe vehicle contains contraband or evidence, can search whole vehicle, including trunk and any package) Police pulls over a car,
CRIM PRO:
Exclusionary Rule & Limitations • Exclusionary Rule= prohibits the introduction of evidence at a CRIMINAL TRIAL obtained in violation of the ∆s 4th (search), 5th (miranda, due process) and 6th (counsel) Amendment rights. • Limitations on Exclusion o Grand Jury: Exclusion does not apply to Grand Jury (witness may be compelled to testify on illegally seized items. o Criminal only: Exclusion not available remedy to civil proceedings o Violation: in order to qualify for exclusion, the search in question must violate the constitution or some state statute. o Parole: exclusion is not an available remedy in parole revocation proceedings o Good Faith Defense: Police have a good faith reliance on judicial opinion later changed by another opinion. Police have a good faith reliance on a statute or an ordinance later declared unconstitutional Good faith reliance on a defective search warrant Exceptions: no good faith defense if: • o affidavit lacks probable cause (i.e no police would rely on it) o Warrant fails to state with particularity place & things to be searched o Police lied or mislead magistrate
gives a speeding ticket, police notices that driver and passenger fit description of people involved in an auto-theft. If the magistrate had been there, he would have issued an arrest warrant.
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(3) Plain View: (police must be legitimately present where he is doing the viewing) (4) Consent: must be VOLUNTARY & INTELLIGENT. (police saying they have a warrant negates consent. Police do not have to warn you that you have a right to consent). (authority to consentif 2 or more people have equal right of use, either can) (5) Stop & Frisk: Requirement= REASONABLE SUSPICION (< probable cause). If frisk reveals evidence of a crime that is not a weapon or contraband, test is How Much Like a Weapon or Contraband Could It Have Seemed From the Outside. (6) Hot Pursuit & Evanescent Evidence: (evanescent evidence= evidence that might go away if we took time to get a warrant; i.e. scrapping under ∆s fingernails.) Once the police enter someone’s home from hot pursuit, there is no effective limit on the search. Police in hot pursuit may enter anybody’s home, even if it is not the pursuitee.
CRIM LAW/PRO (BREEDEN ATTACK SHEET)
• Wiretapping: all wiretapping & eavesdropping requires a warrant; Exception: everyone assumes the risk that the person to whom he is speaking either consents to the Govt. monitoring or is wired. • Standards: ∆ must show (1) deficient performance by counsel; (2) but for the deficiency, the result would have been different. (very difficult to prove).
Miranda (5th) • Miranda Requirements: CUSTODY (person not free to leave); INTERROGATION (conduct police knew or should know would elicit a damaging statement) o Miranda not required for spontaneous statement o Probation interviews ≠ custody o Routine Traffic Stops ≠ custody • Waiver: must be KNOWING, VOLUNTARY, and INTELLIGENT. (no waiver from silence or shoulder shrugging). • 5th Amendment Right to Counsel: arises only when someone who hears a Miranda warning says “I want a lawyer”. NOT OFFENSE SPECIFIC= police cannot interrogate ∆ on any subject. • 6th Amendment Right to Counsel: for all criminal proceedings; OFFENSE SPECIFIC= police can question about different offenses w/out lawyer (different crimes= at least 1 different element). Arises post-filing. Pre-trial Identification • Attacking Pre-Trial ID: post-charge lineup and showups give rise to 6th Amendment right to counsel. (no right to counsel at showing of photographs.) If lineup is suggestive, violates due process. • Remedy: exclude in-court id; however Govt can still assert and Independent Source (i.e. witness had ample time to look at ∆ at time of the crime. If prosecutor can show independent source, we will permit the in court ID.) Pre-trial Issues • Bail (bail issues are immediately appealable; preventive detention is constitutional) • Grand Juries (states do NOT have to have GJ as part of process) (GJ witness may be compelled to testify based on illegally seized evidence.) (Proceedings are secretive. ∆ has no right to appear). Right to a Fair Trial • Right to an unbiased judge (bias = financial interest in outcome OR some actual malice against ∆. (“next time you are back here, im giving you the max” ≠ bias) Right to Jury Trial • **Attaches at any time ∆ is charged with an offense if Max punishment > 6 months. o Criminal Contempt: if the sum of the sentences for criminal contempt exceed 6 months, you have a constitutional right to a jury trial. • Number of Jurors: Rule= at least 6. (if 6, must be unanimous, if you use more, does not) • Peremptory Challenges: cannot exclude jurors because of race or gender. Right to Counsel • Right to counsel is the right to the effective assistance of counsel.
Guilty Pleas & Plea Bargaining • Guilty Plea= waiver of right to jury trial • Requirements of Guilty Plea= (1) revealed on record; (2) judge notifies ∆ of nature of charges, maximum sentence, and right to plead guilty. • Mistake: ∆ may withdraw his plea & plead again if mistake • Collateral Attacks on Guilty Pleas: General Rule: Supreme Court will not disturb guilty pleas. EXCEPTIONS: (1) plea was involuntary; (2) lack of jurisdiction; (3) Ineffective assistance of counsel (never works); (4) failure of prosecutor to keep an agreed upon plea (crt will determine if specific performance or withdrawal). Sentencing & Death Penalty • Appeals: ∆ may not be given a harsher sentence on retrial after a successful appeal. • Mitigating Facts: any death penalty that does not give ∆ a chance to present mitigating facts and circumstances is unconstitutional. State cannot limit, by statute, mitigating factors. All relevant mitigating evidence must be admissible.* • Aggravating Facts: only a jury, and not a judge, may determine the aggravating factors justifying imposition of the death penalty. • No automatic category: no crime where it is automatic you get the Death penalty Double Jeopardy When Jeopardy Attaches (jury trial- when jury is sworn in; bench trial- first • witness is sworn). • Exceptions Permitting Retrial: (1-jury is unable to agree on verdict; 2mistrial for manifest necessity i.e. ∆ gets sick; 3- Retrial after successful appeal; 4- breach of an agreed upon plea bargain by ∆). • 2 crimes: 2 crimes do not constitute the same offense if each crime requires proof of an initial element that the other does not. (i.e. Manslaughter with a vehicle & hit & run ≠ same offense; nor is recklessness & drunk driving) • Lesser Included Offenses: being pit on jeopardy for the greater offense bars trial for lesser offenses, and vice versa. Exception- if tried for battery; and victim •
dies; you can be tried for murder.
Separate Sovereigns: you can have a separate prosecution under state & federal; state and state.
Self-Incrimination (5th Amendment) Who can assert? Anybody. In any kind of proceeding; but if you don’t assert • the first time, the privilege is waived for all subsequent prosecutions. • Scope: 5th Amendment does not protect us from using our bodies to incriminate ourselves; only protects from compelled testimony. (no lie detector tests) • Comment to Jury: prosecutor cannot make a negative comment to jury about ∆s failure to testify or remaining silent after Miranda warnings. • Eliminating the privilege: (1) immunity (use & derivative); (2) no possibility of incrimination (i.e. SoL); (3) waiver (∆ taking stand waives privilege as to all legitimate subjects of cross-examination)
CRIM LAW/PRO (BREEDEN ATTACK SHEET)
COMMON LAW CRIMES
Attempt • • • •
Specific Intent Crime
Substantial Step (beyond mere preparation) In the direction of the commission of the crime (merges into substantive crime if completed)
• Rape •
∆ IS liable for deaths of innocent 3rd parties as a result of the resistence. Slightest penetration completes the crime of rape.
Solicitation • Specific Intent Crime • =asking a person to commit a crime. • Ends when ∆ asks. • Merger: if the person you ask agrees, crime merges into conspiracy. Conspiracy • Specific Intent Crime • Agreement (need not be express or know each other) • Intent to Agree • Intent to Pursue an unlawful Objective • Overt Act (Majority Rule) (Minority- you only need an • •
Statutory Rape • Strict liability crime • Mistake of fact or consent are no defenses Larceny • • • • • •
Specific intent crime
Taking (by trespassers or trick)- wrongful Carrying Away (can be very slight) Tangible personal property of another By Trespass Intent to permanently deprive*
agreement)
(each co-conspirator is liable for all crimes of the coconspirators. If those crimes were committed in furtherance of the conspiracy and were foreseeable.) (withdrawal- can never withdraw from liability, only from subsequent crimes
Embezzlement • Specific intent crime • Lawfulness of possession followed by Unlawful conversion • Fraud • Conversion • Property of Another • By a Person in Lawful Possession of that property False Pretenses • Specific intent crime • ∆ persuades owner of property to convey title • Obtaining title • To property of another • By intentional false statement of past or existing fact • With intent to defraud • Larceny by trick v. False Pretenses: Larceny by trick obtains possession; False Pretenses obtains title. Robbery • Robbery = larceny + Assault • Taking • Personal Property of Another • From other’s person or presence • By force or intimidation** (must be of IMMINENT harm, not necessarily to the victim) • With intent to permanently deprive Extortion • = blackmail • Extortion v. Robberty: Extortion= threat of future harm,
Assault & Battery • Battery= completed assault (general intent crime) • Assault (2 types) o Attempted battery (specific intent crime) o Assault as a threat (general intent crime) Murder • Common law murder- 2nd Degree • Malice Crime • Must show 1 of 4 intents o Intent to Kill or o Intent to Inflict GBH o Reckless Indifference to An Unjustifiably high risk to human life; malignant heart o Intent to commit a Felony (i.e. Felony Murder) Manslaughter • Voluntary Manslaughter o (killing from passion) • Involuntary Manslaughter o (killing from crim. negligence) or o Misdemeanor Manslaughter (killing someone while perpetrating a misdemeanor or an unenumerated felony i.e. a felony that does not qualify under felony murder. 1st Degree Murder • No common law 1st degree murder • Statutory, no uniform definition • Need premeditation and deliberation Felony Murder • If ∆ has a defense to underlying felony, he has a defense to felony murder • Felony must be something other than killing • Deaths must be foreseeable* • Deaths caused while felling felony are felony murder BUT once ∆ reaches some point of temporary safety, deaths caused thereafter are not felony murders. • ∆ not liable for deaths of co-felons as a result of resistance by victim or police.
does not need to be from person or presence; Robbery = imminent harm, from person or presence.
Burglary • Specific intent crime • Breaking (actual or constructive) • Entry (any part of ∆s body enters) • Of the Dwelling (=for sleeping purposes) • Of Another • At Nighttime*** • With intent of committing a felony therein (must exist at time of the breaking) Arson • • • • • • •
Malicious Burning (fires only, no explosions, etc.) Of the Dwelling Of Another Damage required= charring, not scorching. If you own it, it is not common law arson
Malice Crime