Evidence III

5. Rehabilitating After Impeachment

a. Good reputation (opinion) for truth ONLY IF CHARACTER WAS IMPEACHED.
b. Prior CONSISTENT statement to rebut an express/implied charge of recent fabrication or improper influence/motive. (such a charge would require more than just demonstrating prior inconsistent statement). Must be pre-motive statement, admissible for its truth.

PRIVILEGES

Attorney-Client
Confidential communications between atty and client made during professional legal consultation are privileged from disclosure unless waived by the client (or representative). Privilege survives death. Communication, not objects/documents.
Exceptions:
facilitate future crime or fraud
client affirmatively puts communication in litigation (“Followed Atty’s advice.”)
suit b/w the atty and client

Mass: has asked about inadvertent disclosure. SJC uses balancing test, basically, how negligent was the disclosure (rsbleness of precautions, amt of time to realize disclosure, scope of materials requested that disclosure got included in, extend of disclosure, and interests of fairness & justice)

Physician/Psychiatrist-Patient
Alert: “doctor-patient privilege” in a bar exam Q? - prob. wrong
Mass: has no ordinary “doctor-patient” privilege.

Patient has a privilege against disclosure of confidential information acquired by a physician/psychiatrist in a professional relationship entered into for the purpose of obtaining treatment. (Evaluations made for the purpose of giving expert testimony are not privileged.) The information must be arguably necessary to facilitate treatment -- don’t talk about your tax fraud to your doctor.

Waiver: Privilege is waived if patient sues or defends by putting physical or mental condition in issue.

Spousal
Spousal Immunity - can’t force spouse to testify. (If want to testify, OK.)
criminal cases only!!
Confidential Marital Communication (confidential, made while married)
either spouse can invoke
protects only confidences, not all testimony

Mass: Confidential Marital Communication privilege CANNOT BE WAIVED.

Mass: Parent-Child Privilege - unemancipated minor living w/parent may not testify against parent in criminal proceeding unless victim is member of parent’s family and lives in parent’s household.


APPLICABILITY OF STATE LAW IN FEDERAL COURT

State law applies in federal court on a diversity case, including
1. presumptions and burdens of proof
2. competency of witnesses
3. privileges

HEARSAY

A. Definition of Hearsay

Hearsay: out of court statement offered (via writing, or witness testimony) to prove the truth of whatever the statement says.

Non-hearsay: being offered for some other purpose

• verbal acts or legally operative facts (words of offer, acceptance, defamation, conspiracy, bribery, cancellation, misrepresentation, waiver, permission) - b/c once you say the words, the relationship exists or crime has been committed.
• out of court statement offered to show an effect on the hearer (notice or knowledge, demonstrate probable cause, etc.)
• out of court statement offered to show declarant’s state of mind (only relevant if state of mind is relevant)

Prior statements of the witness
hearsay if offered for its truth, in which case, only admissible if one of the exclusions apply

Non-hearsay by definition

• prior inconsistent statement (under oath at a prior proceeding)
• prior consistent statement (to rebut charge of recent fabrication/motive)
• prior statement of identification made by a witness
• admission of a party

B. The Rule Against Hearsay

Hearsay bad! No allow!

C. Exceptions to the Rule Against Hearsay

• Mass: admission of a party (whether against interest at time or not, any format, includes vicarious admission by agent/servent in scope of employment)
• former testimony of now unavailable W (testimony in earlier proceeding OK if other party had chance/motive to cross at the original proceeding - same issue, some identity of parties)
• statement against interest (against interest at time of statement) (NB: if exposes declarant to criminal charge (penal interest) while exculpating D, corroboration required)
• dying declaration (think dying, statement about circumstances of death, unavailable now, only in homicide/civil cases) (Mass: must die, only allowed into evidence in homicide cases, not civil)
• business records
  • made at or near time of event
  • by or from person w/personal knowledge
  • if record made in the regular course of business
  • and kept in the regular course of business (NB: allows the record to testify in replacement of employee
    
• Mass: doctor’s reports are also exceptions to hearsay, when stating an opinion based on facts that are customarily relied on by doctrs in the field
  
• spontaneous statements (unavailability not reqd)
  • existing state of mind when declarant’s state of mind at issue
  • intent to do X in near future to infer intended act was done
  • excited utterance
    • startling event
    • uttered under excitement of event (time lapse may be OK)
    • about the event itself
  • present sense impression (NOT IN MASSACHUSETTS)
  • describing/explaining event/condition while perceiving event/condition or immediately thereafter
  • declaration of present (at the time) physical condition
  • anyone who hears it may testify - specific kind of present sense impression
  • declaration of past physical condition
  • for purpose of getting diagnosis treatment (not expert testimony)
  
  
  

  Admission of a Party	Statement Against Interest
  nope	against interest at time statement made
  made by party	made by anyone
  nope	based on personal knowledge
  party is usually there	W must be unavailable

  
  
  THE 6TH AMENDMENT RIGHT OF CONFRONTATION
  
  6th Am right may block even a hearsay-exception-admissible statement, in the case of a
  
  • criminal case
  • unavailable declarant
  • “testimonial” statement (declarant makes statement that they anticipate will be used in the prosecution or investigation of the crime)
  • accused had no chance to cross when statement made
  • unless prosecution demonstrates D forfeited Conf. Cl. objection by wrongdoing that caused the declarant’s unavailability
  
  
  RECURRING TEST ISSUES
  
  • preliminary questions upon which admissibility depends do not fall under rules of evidence -- hearsay OK.
  • impeaching the hearsay declarant -- just as if they were in the courtroom, say, via prior inconsistent statement
  • mixing hearsay and writings (e.g., dictaphone recording present sense impression as V killed by D, officer wants to testify - hearsay exception OK - but bad under best evidence rule unless can account for why not enter the recording into evidence)
  • business records - germane to business and multiple hearsay Q’s (ask yourself whether employee could testify, rather than document)

Evidence II

Best Evidence Rule - if using writing to prove content of writing (rather than something else, like, that X was able to write on that day, or that contract existed at all) - General preference for original - either produce it, or account for its absence

1. Applies to legally operative documents (documents creating legal relationship in dispute) and when the witness’ sole knowledge comes from the document (so, witness doesn’t actually have personal knowledge).
2. Does not apply to facts independent of the writing (personal knowledge of W) and collateral documents (writings of minor importance, not involved in dispute)
3. Certified copies of public records, summaries of voluminous documents, duplicates that “accurately reproduce the original” (unless there’s a genuine Q raised about the original’s authenticity or it would be unfair to admit the duplicate in lieu of original), are all OK to admit.

Mass: Uniform Photographic Copies of Business and Public Records Act - primary evidence ok if the record made, kept, or recorded in the ordinary course of business.

Witnesses and Testimonial Evidence

A. Competency

1. Personal Knowledge and Oath
a. perception/observation of witness (saw event)
b. memory of witness (remember seeing it)
c. communication (can tell you)
d. sincerity (under oath)

2. Obsolete Forms of Witness Disqualifications
a. Lack of Religious Belief
b. Infancy
c. Mental Incompetency
d. Prior Conviction(s)
e. Interest in Outcome

3. Dead Man Acts - You’ll be told if there is one applicable
An interested survivor cannot testify for his interest against the decedent or decedent’s representatives about communications or txns w/the decedent in a civil case unless there is a waiver.

There is no Dead Man Statute in MA.

B. Form of Examination
1. Leading Q’s permitted when cross-examining, on direct for preliminary matters, or necessity otherwise requires it (difficulty eliciting testimony, adverse party or someone under their control, or genuinely hostile witness).
2. Witness use of writings in Aid of Testimony
a. refreshed recollection
W doesn’t remember, refreshes memory w/document (a writing, song, smell, etc.), resumes testimony. Must show refresher to opposing counsel, and they can use on cross, and put into evidence.
b. recorded recollection
W doesn’t remember, but used to know, wrote it tdown themselves, when fresh in their memory, and it was accurate then. The writing is read aloud into evidence.

C. Opinion Testimony

1. Lay
Rationally based on perception of witness
Helpful to the trier of fact
2. Expert
Subject matter appropriate for expert testimony, assists the trier of fact (reliable methodology, relevant)
Qualified (skilled, not necessarily ph.d)
Possess rsble certainty/probability regarding opinon (more than guessworkd)
Supported by proper factual basis
facts in personal knowledge of expert
facts supplied to expert in court (through a hypo)
facts of a type experts in that field rsbly rely on in the course of making professional decisions (doctors relying on technician’s reports)

Mass: as long as those facts are of a type experts in the field rsbly rely on AND those facts could be admissible if offered.

Learned Treatise - used to impeach other side’s expert, OFFERED FOR ITS TRUTH, under FRE may be used to support own expert’s opinion - is read into evidence
Establish by
* opposing expert used this src themselves
* eliciting admission from expert on cross that it is learned treatise
* call own expert to get them to admit it
* judicial notice (so well known in field ask judge to take notice it is authoritative and reliable)

D. Credibility and Impeachment

1. Cross-Examination
FRE: cross doesn’t exceed scope of direct
Mass: cross is wide open
Collateral Matters Doctrine - can’t bring extrinsic evidence to contract a witness on a collateral matter (b/c it’s a collateral matter, not material to the case)

2. Accrediting Your Own Witness
Wait until your witness is impeached
Prior Consistent Statement would be admissible if the statement was one of identification (hearsay exclusion). Anybody can testify to the i.d., doesn’t have to be person who made it. But, the person who made i.d. must be avail for cross.

3. Impeaching Your Own Witness

Mass: can only use prior inconsistent statement

4. Impeaching Your Adversary’s Witness

Things to ask yourself:
can I use extrinsic evidence?
If I can, what foundation do I need to lay?

a. prior inconsistent statement
generally admissible only to impeach W
but if given under oath in a prior proceeding, may be allowed in for its truth
extrinsic evidence admissible to prove prior inconsistency
W must have opportunity to deny/explain inconsistency
Prior Inconsistent Statement qualifies as an admission

Mass: prior inconsistent statement only to impeach, but grand jury testimony can come in for the truth of the matter if it was not coerced, if the statement was the W’s own (not responding to leading Q), and some reliability satisfied.

b. showing of bias/interest/motive

great way to sneak stuff in

c. prior conviction (character)

Only if the right sort of crime: involving dishonesty, or any felony (upon court’s discretion), but not too remote (not > 10 years)
Extrinsic Evidence OK

Mass: Any crime OK to impeach W, but court has discretion to exclude D’s convictions. Also, if > 10 yrs, too remote, unless W committed another crime w/in the past 10 yrs. For misdemeanors, it’s a 5-yr rule.

d. specific acts of deceit/lying (character)

NOT IN MASSACHUSETTS AT ALL

in discretion of court
must ask in good faith (can’t go fishing for acts you don’t know about)
acts inquired must involve deceit/lying
NO EXTRINSIC EVIDENCE; cross-exam only

e. bad rep or opinion (FRE) as to truthfulness/veracity (char.)

MASS: REPUTATION ONLY, NOT OPINION

5. Rehabilitating After Impeachment

Evidence I

I. Relevance

A. Logical Relevance - evidence that has any tendency to make a material fact more or less probable.

* similar occurrences (so, different time/event/person, which normally are not relevant) may be used to

• prove cause and effect
  (show prior accidents or claims) to show a common plan or scheme of fraud, or where the prior accident/claim is relevant on the issue of damage
  NB: accidents involving the same instrumentality and occurred under the same or similar circumstances are admissible to whos notice to or knowledge of a D, or that the instrumentality is dangerous
  
• show intent or state of mind in issue (e.g., discrim intent)
  
• to rebut a defense of impossibility
  
• to establish value of chattels or parcels of real property
  must be of same general description, sales about the same time period, and in about the same location
  
• to show habit (specific, detailed conduct, and recurring often enough to be automatic - always, automatically) (NOT IN MASS)
  
• to show business routine
  
• to show industrial or trade custom, but non-conclusive as to standard of care

B. Pragmatic/Policy/Discretionary Relevance - even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of:

1. unfair prejudice
2. confusion of the issues
3. misleading jury
4. undue delay
5. waste of time
6. cumulative evidence

NB: "unfair surprise" is not on this list.

* Liability Insurance - not to show negligence, wrongful act, or ability to pay
but, show ownership or control, or impeach witness by showing interest or bias/motive.
* Subsequent Remedial Measures - not to show negligence, culpability, defect in product, or need for warning

• but, show ownership or control, or to rebut/impeach statements re: feasibility of precautionary measures

(MASS: in products liability cases, subseq. rem. measures are on the table automatically, don't have to wait to rebut.)
* Settlements - not to prove fault, liability, or amount of damage

• Admissions of fact, liability, or damage made in the course of an offer are not admissible - not severable from offer itself. MASS DOES NOT FOLLOW THIS RULE. Unseverable only if you say "for settlement purposes only".
• There must be a claim, with dispute as to either liability or amount.
• A naked offer to pay medical expenses is not admissible, even though it's not a settlement offer. But a fact accompanying it is severable and may be admitted.

II. Character Evidence (as substantial evidence -- to show disposition or propensity to commit the act in question)

Always ask:
* purpose of offer of character evidence

• character is directly in issue in case (direct evidence)
• character is circumstantial (offered to prove conduct in conformity w/character)
• character used to impeach a witness (i.e., propensity for untruthfulness)

* method of proving character

• specific acts
• opinion (of witness)
• reputation (in community)

* type of case (civil v. criminal)
* what trait of character is involved (peacefulness/violence for assault, truthfulness for perjury)


A. Civil Cases (basically, not going to happen)

1. Not admissible as circumstantial evidence
2. Admissible as direct evidence when character in issue (rare)

• defamation action where truth is defense
• negligent entrustment case
• wrongful death action (what kind of spouse was the deceased?)

3. when admissible, use opinion, reputation, specific acts - any of the three methods.

B. Criminal Cases (MASS - reputation only) - Character in criminal cases is not on the table until D puts it there

1. Bad character is not admissible by P if to show action in conformity w/that bad character, unless the D opens the door by offering evidence of good character for the pertinent trait.
P may then cross a W giving that good char evidence, by asking if they've heard of acts that D has committed that would tarnish reputation (or opinion, under FRE). Naturally, W can still be impeached as any W can be impeached. P may also call prosecution Ws to testify to bad opinion/reputation, now that "door is open".

2. Victim's character, by D, in cases of self-defense argument. P can then cross, impeach, call other Ws to testify to good opinion/rep. And, may now attack D's character on the same trait. MASS: specific acts of V OK, but not reputation for violence.

3. Victim's character in sex cases
Specific acts only, to prove some 3d party source of semen/injury/physical evidence, or to show prior consensual intercourse b/w V and D.

MASS: reputation of V for violence may not be admitted (state of mind of D upon hearing rep still OK)
specific acts of V's violence may be admitted to infer that V was first aggressor in a self-defense case.

4. Specific Acts of prior misconduct may not be offered during P's case in chief to show criminal disposition, but may to show some other material fact, i.e., motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

• Motive
• Intent
• Mistake, absence of
• Identity (including by m.o.)
• Common Plan or Scheme

NB: still could be outweighed by prejudicial nature, etc., of evidence, and excluded.

NB: Prior Similar Acts Allowed to Show Propensity in Sexual Assault and Child Molestation Cases.

III. Writings - authentication


A. Writing must be authenticated to admit as evidence. Must lay foundation that writing is what it purports to be.

1. Methods to Authenticate

Admission
Eyewitness Testimony
Handwriting Proof

• lay witness (recognize signature from pre-existing familiarity - not familiarity acquired just for litigation)
• expert witness (compare disputed signature with known genuine one)
• jury comparison (ditto)

Ancient Document rule (if it's 20 yrs (MASS: 30), regular on its face, and found in place of natural custody)
Solicited Reply Doctrine: disputed document came in reply to some prior communication.

2. How much authentication? Sufficient evidence to justify a jury finding of genuineness. Rsble jury could find genuine.

3. Self-Authenticating documents

• certified copies of public or business records
• official publications
• newspapers/periodicals
• trade inscriptions or labels (to indicate ownershop or control)
• acknowledged documents (certificate of acknowledge attached to a contract)
• signatures on certain commercial paper under UCC

4. Authenticating Photographs
Witness testimony that photo is a "fair and accurate representation" of the thing/place in the photo.

Store surveillance camera - photo speaks for itself.

• Need proof operating properly
• Need proof of time it was functioning
• Need proof how film was handled up until time of trial

Agency and Partnership

Agency and Partnership

Agency

1. Principal's Liability for Agent's Torts
a. assent, benefit, control, plus scope of agency
b. no vicarious liability for independent contractor's torts unless ultra-hazardous activity or estopped from denying liability
c. intentional torts generally outside scope of agency (but not for bouncers)

2. Principal's Liability for Agent's Contracts
a. actual express authority - oral, except land, revocable unless durable (explicit survival language).
b. implied authority - necessity, custom, or prior dealings.
c. apparent authority - P cloaks A, plus 3rd party relies.
d. ratification - P has knowledge of A's dealing, and accepts benefits.
e. authorized agents are not liable unless there is an undisclosed principal.

3. Duties Agent owes Principal
a. reasonable care
b. reasonable obedience
c. loyalty

Partnership

1. Formation
a. no formalities for general pship
b. association of 2 or more people, to carry on as co-owners of a business for profit.

2. Liabilities to 3rd Parties
a. general partners liable personally for pship obligations/debts.
b. estoppel - if you represent as partners, liable as if general partners
c. limited partners plus registered limited liability partners have limited liability.

3. Relationships Between Partners
a. Fiduciaries - file an action for accounting
b. Only a share of the profits (not control or pship assets) is liquid personal property of the partner
c. Absent an agreement, partners share equal control, receive no salary, receive equal profits, and share losses in the same way they share profits.

4. Dissolution
a. Dissolution: absent an agreement, the death or express will of a partner dissolves a pship
b. Priorities in payment:
Outside and inside creditors (must pay, even require partners to pay money into pship)
Capital contributions (must pay, even require partners to pay money into pship)
Profits (shared equally absent an agreement)
c. Distribution rule: Each partner must be repaid their loans and capital contributions, plus their share of the profits, but also minus their share of the losses.

Criminal Procedure

Exclusionary Rule

Items seized via an illegal search, or a coerced confession, are excluded from admission as evidence.

To apply, there must be a violation of the Const. or federal statute.

Limitations

This rule does not apply to the conduct of a grand jury. A witness may have to testify based on illegally seized evidence.
This rule does not apply in civil proceedings.
This rule is not available in parole revocation proceedings.
Can't exclude due to violations of the "knock and announce" rule in the execution of warrants.

The Good Faith Exception (Defense) -- if cops rely in good faith on a
* judicial opinion that is later changed by another judicial opinion
* a statute or ordinance that is later declared unconstitutional
* a search warrant that is later found defective
to search and seize evidence, that evidence is not excluded.

However, the good faith defense against the exclusionary rule will not prevail in the case of a defective search warrant if:
* the affidavit underlying the warrant is so lacking in probable cause that no reasonable officer would have relied on it; or,
* the warrant is invalid on its face (doesn't state with particularity the place to be searched or items seized); or,
* the affiant officer lied to or misled the magistrate; or,
* the magistrate has "wholly abandoned his judicial role" (isn't neutral/detached anymore).

Excluded evidence may be used to impeach D's trial testimony. (Excluded due to Miranda failure or illegal search.)

Fruit of the Poisonous Tree Doctrine

The doctrine: exclude evidence obtained/derived from the police illegality (whatever it is).

How to break the chain:
* independent source for that evidence
* demonstrate it would have been inevitably discovered anyhow
* intervening acts of free will on the part of the D

Where there is a Miranda violation leading to evidence, the fruit doctrine does not apply.

Fourth Amendment

Arrests

Arrest warrants generally not required to arrest X in a public place.
Warrant is needed for the non-emergency arrest in X's own home.
Station house detentions:
Need probable cause to arrest you to compel you to come to station house for fingerprinting or interrogation.

Search and Seizure -- use flowchart on page 5 of CMR. This is a favorite topic on the MBE and essay.

Is there government conduct?
* publicly paid police (on duty or not)
* private person under direction of public police
* private police deputized w/power to arrest (campus police for private school)

Yes -> Is there a reasonable expectation of privacy?
yes:
* owner of place being searched
* place being searched is your home (whether you own it or not)
* overnight guest on premises being searched
sometimes:
* someone legitimately present when the search takes place
* owner of item being seized
no:
* public items:
voice, handwriting, paint on car exterior, records of account at bank, location of car on public street or driveway, things seen across open fields, things seen flying over in public airspace, odors emanating from luggage, garbage put out for collection.

Yes -> then a 4th Am. right exists.

Was there a warrant?
Yes -> test the validity of the warrant.
Warrants may be obtained via hearsay, i.e., informers. Probable cause is fact specific. Affidavit must set forth enough to enable magistrate to make a determination independent of officers' conclusions.

Affidavit may be sufficient even though reliability, credibility, basis for knowledge are not established. Identity need not be revealed.

Mass.: warrants based in part on informers' tips, the affidavit underlying the warrant must
1. set forth sufficient underlying facts and circumstances to allow the magistrate to know how the informer got their info; and,
2. must credit the reliability and credibility of the informer (how many times used in past, leading to how many convictions).

Warrant must be precise on its face
state with particularity the place to search and things to seize

Warrant must be issued by neutral/detached magistrate, otherwise, they've "wholly abandoned their judicial role".

No -> is it a valid warrantless search?

If there is no warrant or a bad warrant, may still be good search:
1. incident to lawful arrest
a. arrest lawful
b. search contemporaneous in time and place
c. search person and their wingspan (area can reach for weapons or to destroy evidence)
N.B.: when validly arrested in a car, wingspan includes interior of car but not trunk.
2. automobile exception
a. If have probable cause (same as would be needed for warrant) that the car contains fruits, instrumentalities, evidence, may search whole thing, including trunk, and open anything that might reasonably contain the fruits, evidence, etc.
b. Can stop for another reason, but probable cause must exist before the search begins.
3. plain view
a. officer legitimately present
b. 'views' the item (plain touch, conducting a valid search for X and find Y)
4. consent
a. voluntary (saying "we have a warrant" negates consent)
b. intelligent
NB: where two people have equal right to use property, any of them may give consent.
5. stop & frisk
a. articulable & reasonable suspicion to stop
b. pat down if think may be armed/dangerous
c. 'plain touch' seems like weapon or contraband
6. hot pursuit/evanescent evidence (will disappear if wait to get warrant)
a. hot pursuit of a fleeing felon
b. evanescent -- get scraping of fingernails before X can go wash their hands

Wiretapping and Eavesdropping

Must have warrant
However, X assumes the risk that Y is an "unreliable ear" -- wired or otherwise monitored by govt.

Mass.: Not in own home.

Confessions

Miranda
* must be in custody (not free to leave -- probation interviews and routine traffic stops are not custodial)
* volunteered/blurted info don't need a Miranda warning in order to bring in as evidence
* interrogation -- any conduct where cops know or should know they might get a damaging response

right to remain silent
anything said may be used against in court
right to have atty present during questioning
right to have atty appointed if can't afford one

Miranda waiver

* voluntary
* intelligent

Right to terminate interrogation -- once asserted, starting again w/o atty violates 5th Am right to counsel, which arises when Miranda is invoked. -- request for help during interrogation process. Not offense, but custody specific. 6th Am right to counsel is offense specific.

Pre-Trial Identifications

Attack via denial of right to counsel, and denial of due process.
During a post-charge lineup or showup, right to counsel. None when cops just showing photo.
Denial of due process occurs when id process is so suggestive as to be likely to produce a misidentification.

Remedy? Exclude identification in court. State can defeat remedy by showing an independent source for that i.d. (ample opportunity to look at the guy at the time of the crime).

Pre-Trial Procedures

1. Bail issues are immediately appealable
2. Preventive detention is constitutional.

Grand juries
* states don't have to use
* exclusion rule doesn't apply
* proceedings are secret
* no D right to appear
* no right to send witnesses

Trial

Right to unbiased judge.
Bias:
actual malice
financial interest in outcome of case

Right to jury trial
any time D tried for offense where max sentence > 6 mo.
NB: If the sum of the sentences for contempt > 6 mo, the alleged contemnor is entitled to go back and have a jury trial.

Size of jury
Minimum 6 - unanimous.
If 12, no unanimous. USSC has OK'd 10-2 and 9-3 splits.

Mass.: UNANIMOUS JURY DECISION REQUIRED

Right to representative jury

Jury pool must reflect fair cross-section of community. Not jury itself, just pool.
Unconstitutional for P or D to use preemptory challenges to exclude prospective jurors based on race or gender.

Right to effect assistance of counsel

Deny relief on this argument, unless the ineffective assistance had a material impact on the case's outcome.
1. deficient performance by counsel
2. but-for, result of case would be different

Guilty Pleas & Plea Bargaining
(waivers of right to jury trial)

Two USSC Trends:
1. will not disturb guilty plea after sentencing
2. use contract theory of plea bargaining

Judge must tell D, on the record:
* nature of the charge
* maximum sentence, and any mandatory minimums
* that D has the right to plead not guilty, and to have a jury trial, and that by pleading guilty they waive a jury trial.

If flawed plea,
* withdraw plea
* plead again

Withdrawal of Plea
* Involuntary plea
* Lack of Jurisdiction
* Ineffective Assistance of Counsel
* Breach of Bargain by P

Death Penalty
Any question you get on this, just barf back the following:

Any death penalty statute that does not give D a chance to present mitigating facts and circumstances is unConstitutional.
There can be no automatic category for imposition of the death penalty.
The state may not, by statute, limit the mitigating factors; all relevant mitigating evidence must be admissable or the statute is unConstitutional.
Only a jury, not a judge, may determine the aggravating factors justifying imposition of the death penalty.

Double Jeopardy -- can't be tried for same offense twice

Attaches when jury sworn in (for jury trial) or 1st witness sworn in (bench trial).
Doesn't attach to civil proceedings.

Exceptions permitting retrial:
1. jury can't agree on verdict;
2. mistrials for manifest necessity (D becomes ill, hospitalized, makes sense to start over after out of hospital rather than keep this jury until then)
3. retrial after successful appeal
4. breach of agreed upon plea bargain by D (plea and sentence can be withdrawn and original charges reinstated).

Two crimes do not constitute the same offense if each have elements the other does not.
Attachment of jeopardy for a greater offense bars retrial for lesser included offenses, and vice versa, with one exception: if victim of battery dies after jeopardy attaches (battery trial jury sworn in), may retry for murder.

Separate sovereigns may both prosecute. State/fed, two different states, but not state X and city Y within state X.

Fifth Am Privilege Against Compelled Testimony

anyone may assert
any kind of case
assert 1st time an incriminating answer needed, or waive privilege

not protection against having government use body to incriminate -- blood/urine/hair samples -- b/c not testimony.

It is unconstitutional to comment on D's failure to testify or silence after a Miranda warning.

Eliminating this 5th Am. privilege:
1. Grant of immunity
'use and derivative use' -- won't use against you, but could still prosecute you on earlier evidence

Mass.: transactional immunity: no prosecution for transactions about which you testify in immunized testimony.

2. No possibility of incrimination (statute of lim. already run)
3. Waiver
D waives by taking stand, as to all legitimate subjects of cross-examination.

Criminal Law

Jurisdiction

The legal situs of the crime (conduct or result happened there). If crime of omission, where act should have been performed.

Merger

Generally, no merger of crimes. However, solicitation and attempt merge into the substantive offense. Conspiracy does not.

I. Essential Elements of a crime

A. An act

1. Any bodily movement

Exceptions: conduct not a product of own volition; reflexive or convulsive act (e.g., seizure); unconscious or asleep (sleepwalking).

2. An omission when there is a legal duty to act arising

by statute
by contract
voluntary assumption of duty of care and then failing to adequately perform
due to relationship b/w parties (e.g., parent-child)
where your party created the peril

B. Mental State

1. specific intent
1. inchoate crimes: solicitation, conspiracy, attempt
2. 1st Degree Murder (unless specified, 'murder' is common-law murder, not this)
3. assault
4. common-law offenses against property: larceny, embezzlement, false pretenses, robbery, burglary, forgery


2. malice - reckless disregard that obvious high-risk a harmful result will occur (murder & arson)


3. general intent (most crimes are this, e.g., rape, battery)


4. strict liability (no intent at all)


• if crime is in an administrative, regulatory, or morality area
• if don't see any adverbs in statute (e.g., "knowingly")

Intent may transfer from one person to the next -- intent to murder X, shot Y instead, intent xfers to Y. Additionally, attempted murder against X. The two crimes don't merge b/c different victims.

II. Accomplice Liability -- Liable for the crime itself and all other foreseeable crimes. Must be actively in on the crime, not just present.

Mass.: a person can be convicted on the testimony of an accomplice, unless immunity was granted. if it was, corroboration required.

III. Inchoate Offenses

A. Solicitation -- asking person to commit crime. Once they say yes -> conspiracy.

B. Conspiracy

1. agreement - not necessarily express, and everyone doesn't have to know each other
2. intent to agree
3. intent to pursue unlawful objective (impossibility of object is no defense)

Each co-conspirator are liable for all the crimes committed in furtherance of conspiracy, that were foreseeable.

Majority rule: agreement plus overt act (any little act will do, e.g., recruiting others)
Minority rule (including Mass): agreement only

Mass.: If you conspire only, you're not liable for substantive crimes of the other co-conspirators.

Withdrawal from the conspiracy may be a defense to crimes committed in furtherance of the conspiracy after withdrawal, but not to the conspiracy itself (b/c 'conspiracy' has already been committed -- it's already complete).

C. Attempt -- Specific intent plus substantial step in direction of commission of the crime beyond mere preparation. Mere preparation is not enough for attempt.

IV. Defenses

A. Insanity -- defense to all crimes including strict liability

M'Naughton -- at time of conduct, lacked the ability to know the wrongfulness of the act or to understand the nature and quality of their actions.
Irresistible Impulse -- lacked the capacity for self-control and free choice
Durham test -- conduct was a product of mental illness
MPC (Mass) -- lacked ability to confirm conduct to the requirements of law

B. Intoxication

voluntary -- only a defense to specific intent crimes
involuntary (a form of insanity) -- defense to all crimes including strict liability

C. Infancy

minority rule (including Mass.) requires retreat to the wall if safe to do so, prior to using deadly force, however,

1. no retreat reqd out of home
2. no retreat reqd if victim of rape or robbery
3. no retreat reqd if cop

E. Defense of a Dwelling -- no deadly force solely to defend property. Property, no, people, yes.

F. Duress (gun to head scenario) -- Defense to all crimes save homicide

G. Mistake of Fact

Mental State of Crime Charge	Application of Defense
specific intent	yes, any mistake
malice and general intent	only a reasonable mistake
strict liability	no, never

H. Consent -- almost never a defense

I. Entrapment -- very narrow, b/c the predisposition of the defendant to commit the crime negates it.

V. Common Law Crimes -- All states have tweaked these via statute.

A. Battery -- general intent crime, never strict liability -- a completed assault

Unlawful force resulting in unwanted touching or bodily harm. Typically misdemeanor.
Aggravated batteries (deadly weapon, serious bodily harm, child or cop) may be prosecuted as felonies.

B. Assault -- attempted battery (specific intent crime), or creation of reasonable apprehension of imminent bodily harm (general intent crime)

Aggravated assaults, too.

C. Homicide (victim must be human -- and dead)

Intent to kill. (note: intentional use of deadly weapon? Infer intent to kill.)
Intent to do serious bodily harm.
Depraved heart/highly reckless (intentional performance of an act entailing substantial likelihood of risk to human life).
Intent to commit a felony.

D. Manslaughter

Voluntary: heat of passion/provoked killing.
Involuntary:

• criminal negligence
• misdemeanor manslaughter (committing a misdemeanor or unenumerated felony (something not on the felony murder list))

E. 1st Degree Murder -- no uniform definition

Mass.: if premeditated, particularly vicious, or committed in the course of a felony that is punishable by death or life imprisonment.

F. Felony Murder

Intent not to kill, but to commit felony, yet someone dies. Felony may be attempted, not even completed.
Defenses:

1. Defense to underlying felony
2. The felony must be somethign other than the killing
3. The death must be foreseeable
4. Deaths caused while fleeing are felony murder, but once reach a place of temporary safety, deaths after are not
5. Not liable for death of co-felon as a result of resistance by victim or police

Mass.: One perp. must do the killing, and a non-perp must die, for it to be felony murder.

G. Sex Offenses

1. Rape - unlawful carnal knowledge of a woman, by a man, not her husband, without her effective consent. The slightest penetration is sufficient.
Achieved via force or threat of force/great and immediate bodily harm; incapable of consenting due to unconsciousness/intoxication/mental condition; fraudulent caused to believe the act is not intercourse.
2. Statutory Rape -- carnal knowledge of female under age of consent. Strict liability crime.

H. Property Crimes

1. Larceny (achieves possession, not title))

taking
and carrying away
of another's property
w/o their consent
w/ intent to permanently deprive them of it

2. Embezzlement

Fraudulent
Conversion (deal with the property in a manner inconsistent with the trust arrangement providing lawful possession)
of property
of another
by a person in lawful possession of that property

- Illegally converts property already lawfully in possession. No need to be for benefit of self, or for there to be a carrying away.

3. False pretenses (achieves title)

Obtaining title
To property of another
By an intentional (knowing) false statement of past or present fact ("by" - major or sole cause being the misrepresentation)
With intent to defraud the other (know its a lie, subject victim to risk of loss)

- Persuade owner to convey title under false pretenses or representation. Not a false promise for future, but false representation of present or past fact.

4. Robbery

Larceny plus assault. Taking from person or in their presence, by violence/force or putting them in fear of imminent harm. Picking a pocket is NOT robbery.

5. Extortion (blackmail)

Threats of future harm.
Don't have to take from person or presence.

I. Offenses Against Habitation

1. Burglary

breaking (actual or constructive, via threat or fraud)
entering (body crossing plane of house)
dwelling house
at night
w/intent to commit felony inside -- intent must exist at the time

2. Arson

malicious burning
of a dwelling house
of another
causing a material wasting of fiber of the building by fire (not smoke/water/explosion)