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)