crim pro

  1. Statements Obtained in violation of "Miranda
    Cannot be used for the prupose of establishing PC to obtain a valid search warrant
  2. If W crossed @ prelim
    Prelim testimony can get intrial
  3. Warrants
    • permissible intensity of the search w/in the described premises is dtermined by the description of the things to be seized
    • Plain view= immediatley apparant, may not be used to extend genaral exploratory search (picking up stereo to reveal serial #)(futher inspection)
    • When the purposes of the warrant have been carried out, the authorty to search ends once item describe is found
  4. Massiah Rule (post- indietment iterrogation)
    • once proceedings have began against D, D has a right to counsel when Gov interrogates him
    • interrogate= attempt to obtain info R calculated to induce conversations relative to the crime
    • formal interrogation not necessary convo maybe ok!
  5. Harmless Error
    If an has not resulted in damage to the complaining party, it may be deemed harmless and new trial not need had
  6. Plain Error
    If a grave in justice might result from a serious TRIAL ERROR, the appellate court may issue a new trial (effects substantial rights)
  7. B.O.Production
    Proving Insanity
    • The initial burden of going foward (production burden) is placed upon the D (MPC too)
    • Burden of persuasion os upon prosecution
    • D presumed sane
  8. Right to Counsel after recess or adjourment
    Judge cant instruct D not to talk to counsel
  9. D making a statement during line up
    • appearing in a lineup and being required to make statements during the lineup arent testimonial activities, but demonstrative
    • may be introduced by pros @ trial
    • No 5th A right to refuse to make a staement
  10. 6th A
    "Dual reppresentation"
    • Dual reps creates conflict in intrest
    • Does not violate 6A unless presents a conflict of intrest
    • es: incriminating testimony from 1D to another
    • Court has a duty to inquire as to whetger theres a conflict
  11. waive of Right to Counsel
    (Right to self- representation)
    • Knowingly and intelligently
    • D has right to move foward pro se, court
    • cannot impose counsel if D has competence to move foward'Cannot be charged for councel impossed (courts have this power D is granted counsel lawfully)
  12. Informant's Identities (McCray Rule)
    The court may, in the exercise of its power to formulate evidentary rules for FED crimes, decline to disclose an informant's identity
  13. Informant info (Time when info Occurred)
    2months before is to remote in time to justify a present finding of P/C (for warrant)
  14. 5th A (states 14th)
    Self- Incrimination Protection
    • Firbids either comment by pros of accused sience or instruction by court that such silence is evidence of guilt
    • Pros cant mention D failed to take the stand
  15. Contemporaneous search
    When police make a lawful custodial arrest, the police may search the person of that individual
  16. PC to search Automobile (Acevedo Rule)
    Once P/C to search exist, the police can search the entire vehicle, including closed continuous where they have P/C to believe contraband or evidence is contained

  17. Randon Stopping
    Random stopping of a vehicle on the highway where the officer has no R suspicion is unlawful BECAUSE IT LEAVES TOO MUCH DISCRETION TO THE POLICE
  18. Reprosecution Following dismissial upon D's motion
    • Does not constitue an aquital on the merits and is not prohibited by the double jeopardy clause
    • Pros can retry after mistrial (double jeopardy doesnt attach)
  19. Indictment Delays After Arrest
    • Compare statutes S/L to amount of timed delayed
    • When D, after beng arrested and released is not indicted until a long time interval has passed the 6th A right to speedy trial is trigured
    • Look for: 1. Length of delay 2. GF justification 3. D's assertin of rights 4. Prejudice to D
  20. 4 Bases to exclude statements and confessions
    • 1. Voluntariness: statement must be voluntary based on (TDC) (Due process 5th,14th); 2. Miranda standard: made during custodian interro are inadmissible in the absence of MW(5th)
    • 3. Right to Counsel: made dring "critical stages" of a crim proceed are inadmissible unless the D is afforded the right the counsel 6th; 4. Fruits of illegal conduct: even voluntary statements obtained has fruits of prior illegal searches and seizures are inadmissible 4th
  21. Exclusionary Rule
    (used to deter polic misconduct)
    • Crim d must have standing (personally a V of police unreasonable conduct)
    • Excludes all evidence that has been illegally obtained (fruit of poisonous tree)
    • Courts balance (consider the benefied of the deterance w/ the benefir of remedy DOES NOT APPLY TO IMPEACHMENT
  22. Exclusionary Rule
    Good Faith
    • Appeals to consider: 1. GF reliance on a valid warrant; 2. Reliance on valid statute; 3. Reliance on a court a official rather than a police officer
    • Exception doesnt apply when: 1. The police lie or mislead; 2. Magistrate not neutral; 3. No R PO would have believed the warrant
  23. Limitations on Exclusionary Rue
    • 1. Doesnt extend to grand jury proceedings (evidence may be used in granting indictment)
    • 2. Ev obtaned under R veliance of the validity of S/W by a detached and neutral magistrate
    • 3. Ev excluded in 1 sovereign may be used in civil proceedings in another
    • 4. Impeachment
    • 5. Deportation or parole revocation hearings
    • 6. Civil Proceedings
    • 7. In court ID where W gained knowledge of D's identity rior to illegal arrest
  24. Fruit of the Poisonous Tree Eception
    • Subsque may be admitted if taint is purged by:
    • 1. Inevitable discovery: evidence would have been discovered regardless of the illegality
    • 2. Independent evidence: evidence obtained from source independent from original illegality
    • 3. an intervening act of free will by D (i.e subsequent confession after release)
  25. Police unlawful random stop
    the passenger has standing to challenge the search and seizure of items inside the vehicle
  26. Ways D can challenge warrant
    • By showing:
    • 1. affadavit contained false statements
    • 2. statements were made w/ disregard for truth
    • 3. P/C couldnt be found w/out false statements
  27. Exclusionary Rule Procedural and Enforcement Considerations
    • D has right to suppression hearing (judge determines by proponderance)
    • Suppression hearing: D's testimony may not be used against him
    • Neither denial of right to counsel nor coerced confessions is never harmless error
    • Admission of illegally obtained evidence constitute ireversable error, unless "harmless"
  28. Expectation of Privacy
    • D may assert 4th A right when D has R expectation of privacy (STANDING); satisfied when: 1. D has standing)(ownerhip or possessory interest, over night guest)
    • D must show a legitamate expectation of privacy in items seized or premises searched (nexus btwn D and premises searches NO REOP("held out to public) 1. handwriting exemp;ars; 2. voice exemplars; 3. Bank records; 4. Pen registers; 5. Private convos including eavesdropping
    • D loses REOP w/ discarded proporty
  29. Open Fields
    The open fields away from a home are not close or intimate enough to the home to provide protection from Gov interference or surveilance
  30. Kyllo
    "Devices not in general public use
    When Gov devices not in general use to explore details of private home, the surveilance falls under 4th A andpresumpting unreasonable w/out warrant
  31. Consent
    • 3 elements: 1. voluntariness (volntary and intelligent w/out coecion)
    • (nned not inform D that he has right to w/hold TOC
    • consent given pursuant to an invalid warrant is deemed involuntary
    • 2. Cannot be obtained by duress (Poic demanding entry to location;Fraud in claiming warrant or pose as repairmen)
    • 3. Voluntariness is assumed by engaging in certain behavior (air plane travel; regulated business0
    • SCOPE: Consenting party controls scope of search (expressly/impliedly)
    • Person on probation, unannounced warrantless searches valid
  32. Third-Party Consent
    • Person consenting must have actual apparent authority if: 1. Truely may consent; 2. has apparrent authority to consent(lie having a key,knowing where things are) even if it later turns out the persons lacked authority
    • ex: LL may not consent to the search of a tenants apt
    • motel owner may not consent to search of guest rooms
    • employer may not consent to search of an employers private storage area
  33. Consent joint control
    • General any person who has joint control or use of shared premises may consent and any evidence obtained may be used against the other occupants
    • Applies to common areas, BUT not private reserved areas where the D has exclusive control
    • Pros has burden of proving that the co- occupent had authority to grant access by joint access or control over the area
    • A co- occupants refusal to a search is comtrolling over himself and venders a warrantless entry and search invalid
  34. Probable Cause
    • quantity of facts and circumstances w/in the PO's knowledge that would warrant a R person to conclude a crime has been committed or specific items related to crim activity can be found a particular location
    • SUBJECTIVE intentions play no role
    • conditiona warrant: l. that evi of a crime or contraband will be found; 2. there is probable cause that triggering condition will occur
  35. Reasonable Suspicon
    • belief based upon articulable info,more than mere hunch, used by a R person or police officer that has the subject has or is abot to engage in unlawful activity
    • R articulable belief, not just mere belief/feeling
    • Totality of circumstamces: particularized and objective
  36. Stop/Frisk
    "Terry Stop"
    in order to stop/frisk, PO must have R articulable belief that: 1. The suspect is armed and dangerous; 2. Sudden flight from high crime area may be adeguate; 3. Anonymous tip alone not adequate (TOC)
  37. Administrative Searches
    • Conducted by an administrative agency-> LESSERS knowing of PK
    • Admin search of private homes and business generally require admin warrants except when:
    • 1. Searches of businesses that are traditionally subject to extensive regukation and affect importnt public interst (firearms,food,liquor,pharmacy,business that maintain license)
    • strict P/C not required: 1. Where R standards exist for inspecting; 2. Search isnt for the purpose of gathering a crim investgation; 3. Drug testing employees; 4. Schools (reasonable grants)
  38. Air line Searches (admin search exception)
    • Terry standard for reasonable suspicion
    • passenger may avoid by declining to board plane
    • Dogs may smell passenger luggage, any resulting detention must be brief, lugage seized subject to 4th A
  39. Boarder Crossing Searches
    • No P/C required when conducted by Gov agents in a routine
    • manner and not particularized for a specific person or properly; search may be conducted upon crossing any port of entry into US (international boarders and airports,post offices where foreign mail enters) May make reasonable searches (by virtue)
    • Vehicles people may be stopped w/out cause for questioning but PC required to fully; when subject refuses xray wait for natural boel movement to occur
  40. Plain View
    • Offices can seize prop that is clearly visible w/out a warrant if: 1. lawfully positioned; 2. its immediatley apparrent that eviden is incriminating
    • i.f. cops cant move stuff around
  41. Warrant Requirements
    • 1. neutral and detached based on PC
    • 2. warrent describe w/ particularity the place to be searched and the items persons to be seized
    • Scope: The scope is limited too contents of warrant but contraband can be seized if in plain view
    • P/C Test: 1. Facts or circumstances that are still relevent; 2. A R person would conclude it to be more probable than not
    • Improper when intrusion unusual (ie improper to remove bullet)
  42. Warrant Based on a informant's tip
    ("Totality of Circumstances)
    • 1. Credibility; 2. Reliable; 3. Police corrobaration; 4. Declaration against intrest
    • informant generally need not reveal identity
  43. Execution of Warrant
    • Persons unamed in warrant may not be search because of mere presence
    • Unless exception, search pursuant to invalid warrant generally unconstitutional EXCEPTION- evidence seized by cops acting in G/F on the basis of an objectively valid warrent OK if invalid due to issuing inagistrate
  44. Consent
    Individual may simply waive his 4th A right so long as its voluntary
  45. Hot Pursuit
    • when polic are in actual "Hot pursuit"of a fleeing suspect to apprehend him; mere evidence and contraband may be seized
    • Police may enter and search a private dwelling while im reasonable pursuit of fleeing suspect
  46. Automobile Exception
    • lesser expectation of privacy; The use of drugg-sniffing dogs does not invade D's privacy interest in vehicles
    • Once police have P/C to search vehicle, they ay seize the vehicle and search later, even if its time to get warrant
    • Police may inspect container w/in vehicle if they have P/C even when polic dont have PC on entire car
  47. Warrantless S&S of items from auto may be justifiable
    • 1. SILA
    • 2. PLAIN view
    • 3. impound search (to protect D's property and flase claims
    • 4. Fixed cjeck points (PC to search but RS to stop)
  48. Search of Parked vehicle
    Dcreased threat ofmobility ample time to obtain warrant thus search warrant must be obtained
  49. Mere lawful stop
    • where PC exist cops can search entire vehicle including closed centainers and luggage to find objects where PC exist
    • A mere lawful stop based on RS can ripen into PC for warrantless search
  50. Exigent Circumstances
    • situation where evidence may be lost/ destroyed before a warrant can be obtained
    • police may warrantless S&S provided that: 1/ PC to believe that nature of evidence venders it easily destroyed or likely to disappear before warrant is obtained; 2. The procedure for seizing evidence is R
    • Police may enter a home when they objectively reasonably believes that occupants is in serious imminent harm
    • police may search a crime scene w/out a warrant to seek other victims or remaining killers (protective sweeps)
  51. Accessory Before the Fact
    • one who aids or encourage the commision of a felony but is not present @ the scene
    • can be punished to same extent as principal
    • principal need not be convicted for the accessory before fact to be convicted (required at C/L)
  52. Defenders to Conspiracy "withdrawl
    • Commom law: not a a defense but may be to crimes in futherance
    • MPC: valid if timely notice of plans to all members and perform affirmative act to "thwart" the success of the conspiracy ( Affirmative Defense)
  53. Termination of Conspiracy
    once target has been committed the conspiracy terminates
  54. Condonation
  55. Consent
    • NO DEFENSE to a crime
    • Exception: where it negates a speific element of the offense
  56. Mistake of Law
    Not a defense unless: 1. Statute not readily available; 2. good faith reliance on erroneous official statement in admin order; 3.official interpretation by pub officer or dept
  57. Mistake of Fact (ignorance)
    • Defense when it negates the existence ofmental state (there would be no crime if fact are what D thought)
    • General intent: most be R a R person would make same mistake
    • specific intent: MAY BE unreasonable mst be honest
    • Not a valid defense for rape or S/L crimes
  58. Identifications Post- Indictment (6th A)
    • Right to counsel attaches no right before indictment
    • Based on right to counsel and previous out-of-court ID, doesnt bar an in-court ID @ trial when pros can C&C show subsequent ID came from an independent source
    • Improper admission= conviction overturn inless harmless error
  59. Mistake of Fact
    • Specific intent= reasonable or unreasonable
    • General intent= mistake must be reasonable (type of mistake a R person would have made under circumstances)
  60. Conspiracy& Solicitation
    Solicitation merges into the conspiracy charge
  61. Mistake of fact defense
    There would be no crime if the facts were such as the D thought them to be
  62. Factual impossibility Defense to attempt
    No defense to ttempt where the D intends a criminal act but cannot accomplished itbecause of facts unknown to him @ the time of the act
  63. Use of force by non-aggressor
    • non-aggressor justified in using R force against adversary when he R believes: 1. He's in immediate danger of unlawful bodily
    • 2. that the use of such force is necessary to avoid this danger
  64. Felony- Murder
    rule (guilt)
    In order for one to be found guilty of murder under the felony murder rule he must also be found guilty of the underlying felony
  65. Arson Defense
  66. Duress Defense in Felony Murder
    may be a deffense if it negates the underlying felony
  67. Felony Murder
    unintentional killing= murder
  68. False Pretense
    must intend to defraud
  69. Arson and Burglary (common law)
    Require commission @ the dwelling house of another
  70. Assesory before the fact
    D needs knowledge or participation in planned scheme
  71. Deadly force self- defense
    can only use DF if: 1. D reasonable believes that she is in immediate danger of death or serious bodily harm; and 2. the use of force is necessary to avoid danger
  72. Receiving stolen property
    D has to know the property was stolen when D took it
  73. MPC
    "Substantial Step"
    1. Possession of material to be employed in the commisiom of the crime which are specially designed for such unawful purpose of the actor under the circumstances
  74. Lesser included offense of robbery
    • lareny assailt and battery
    • all merge into greater offense
  75. Difference btwn robbery and larceny
    robbery must be accomplished by force,violence or intimidation
  76. Attachment of jeopardy for lesser- included offenses
    • attachment bars retrial for the greater offense
    • Exception: where the state is unable to proceed on the more serious charge at the out set because additional facts mcessary to subtain that can charge have not yet occured
  77. Depraved Heary Murder
    unintentional killing resulting from Ds RECKLESS conduct that involves a very high degree of unjustifiable homicidial danger
  78. Attempt
    • 1. INTENT to commit target offense
    • 2. a substantial step
    • C/L impossibility= defense
  79. Examples of unjustifiable risk to human life (depraved heart murder)
    1. shooting a bullet into a room that a D knows folks are in; 2. Like #1, but into a car; 3. Throwing a 1q bottle 2 someone holding flamable goods; 4. Russian roulette; 5. Shooting @ somebody; 6. Speeding down the ave; 7. Shaking a baby
  80. MBB style of questing
    Common Law rule will generally apply
  81. Arson
    • Reqs: 1. Malacious; 2. Burning; 3. Dwelling; 4. of another
    • Intentional or reckless burning
    • mere blackening will not suffice, there must be some charring
  82. Receiving Stolen Property
    Reqs: 1. recieving stolen party; 2. Known to be stolen; 3. W/ intent permanantly deprive the owner CD excercise control
  83. Larceny by Trick
    • D obtains prop by means ofrep or promise he knows is false at the time he takes possession
    • ex: driving off not paying for gas
    • Typically Money is delivered to D
  84. Obtaining Property by False Pretenses
    • Reqs: 1. false repof; 2. Present or past material fact; 3. Which causes V topass title of prop; 4. To the D; 5. Who knows his rep is false; 6. Intends to defend
    • Title transfers by D's lies (larceny by trick contra)
    • scope: written instruments,stocks,bonds,notes and deeds,money, credit
  85. Robbery
    • larceny: the taking must be from the person or presence of the victim; 2. Must be taken by force or threat of violence (must put V in fear at time of taking)
    • Lesser imclded arceny,assault,battery
  86. Kidnapping
    • C/L elements; 1. Unlawful; 2. Restraint of a persons liberty; 3. By force or show of forces; 4. So as to send the V to another location
    • Aggravated look at age and restraints
  87. Mayhem
    C/L- intent to injure or do harm by act that: 1. dismemberd V; 2. disabled V use of some bodily part tht was useful in fighting
  88. Murder by Degrees
    • 1st degree- intent to kill, premedittation and deliberation felony murder any reflection- can be rief
    • 2nd degree- all other murders
  89. Grand Jury Indictment
    • written accusations charges against
    • -W has no right to consel
    • - Accused has no right to confront or cross W's or present evidence
    • - No Miranda warnings given
  90. Rights During dscovery (exculpatory Info)
  91. Pros must disclose: 1. Favorable to the accused; 2. when there is a R prob that its favorable to the accused; 3. Unrequested excul ev where it creates a R doubt that did not exist
    New trial if pros doesnt disclose
  92. Seperate Sovereig Doctrine
    • D doesnt apply to: 1. fed court state (vice versa)
    • 2. 2 diff staet courts
  93. Necessity
    When D R believes that crim conduct is neccessary to avoid a greter harm or to avoid imminent injury resulting from natural forces not a defense where D is at fault for peril
  94. Competency
    • D lacks the capacity to assists counsel and rationally defend himself by undetstanding the nature of proceeding
    • speakes to D's mental state at the time of trial
  95. Infancy
    • Common lay- < 7= incompacity
    • modern- state specific
  96. Diminished Capacity
    • As a result of a mental defect the D didnt have a state of mind that is element of the offense
    • Used to negate a specific mental state required for the particuar crime
  97. MPC Test (substantial Capacity)
    • D not liable if the time of offense
    • 1. A result of mental disease ordefect
    • 2. D lacked substantial capacity to appreciate wrongfulness
    • 3. Conform his conduct to reqs of law
    • "mental disease or defect" does not include abnormalities manifested only by repeated crim or antisocial conduct
  98. Irresistible Impulse Test
    • D not guilty if: 1. He mental disease
    • 2. Disease keeps him from controlling hs conduct
  99. Durham/NH Test
    D not guilty if act was the product of mental disease or disease or defect
  100. M'Naghten Test
    • at the time of commision D: 1. Suffered a defect of reason from disease of mind
    • 2. Didnt know nature of doing or quality
    • 3. If he did, didnt know what he was doing was wrong
    • includes mental abnormal but not pschopathic personality
  101. Elements of Crimes
    Prosecution must prove: 1. Actus Reus; 2. Mens rea; 3. Concurrence in time; 4. Causation; 5. Harm
  102. Intent to KIll Murder
    1. Consciously desires to kill another person or makes the resulting death in evitable (absent justfication, excuse or mitigation to voluntary manslaughter
  103. Malicious Crime
    • D must act w/ a reckless disregard of high risk that harm will occur
    • ex: de[raved heart murder arson
  104. Depraved-Heart
    unintentional killing resulting from wanton indifference to human life and a conscious disregard of an unreasonable risk of death or SBG ( Extreemly Neg conduct)
  105. Inadmissible Statements ( Involuntary)
    • under DP of 4th&5th. W has the right to waive 5th A.
    • BAsed on the trustworthiness and reliability TOC (age,sex,education,physical/mental heath) cops may trick but may not offer false promises of dropping charges to eliot confession
    • If D's confession a result of coercion trial use= auto reversal
    • 5th A against self-incrim as applied by Miranda no person compeled to W againgst self. when W has reason to fear that answer would in crim; Privelage may be asserted where testimony may be used against you (grand jury); Priv against self -esteem protects aggainst admission of TESTIMONIAL evidence (not physical or real)
  106. General Intent Crime
    • requires merely intent to do the proscribed actues reus (emcompasses all forms of mens reasons)
    • rape
    • bateery
    • kidnapping
    • false imprisonment
    • D need not listen to comitt crime
  107. Self- Defense
    • Reqs: 1. R belief of imminent danger or bodily harm unless agressor
    • Agressor regains right if: 1. complete w/drawl as perceived by other person; 2. escalation of force by victim
    • There is no duty to retreat
    • Defense of others- R force only if D R believes the victim had right to use such force (also special relationshp)
  108. Stop& Frisk
    • Officer R believes that crim actvity may be a foot;(must be supported by objective evidence) (RS)
    • Terry Stop:(RS) officer safety if R belief that D is armed and dangerous; may extend to interior of car where D is sitting (wing span); Cop can seize anythig that feeels like a weapon/contraband
    • Flight is enough for RS; Cops subjective motives irrelevant
  109. Double Jeopardy
    • Attaches: 1. Non- Jury Trial= A When 1st W is sworn
    • 2. Jury Trial= When jury is empanelled and sworn
    • Same offense= 2 crimes occurrin out of the same transaction, unless 1 of them requires proof of an additional element not contained in the other
  110. Strict Liability Crime
    • Culpability is imposed on D for doing the act
    • -R mistake no defense to public welfare offenses
    • S/L crimes: 1. Regulating offenses (trafic vios etc)
    • 2. Public welfare (food,drugs& guns)
    • 3. Morality (statutory rape, bigamy)
  111. Accessory After the Fact
    • 3 Reqs: 1. Completed felony comitted
    • 2. Accessory must have known of commission of felony
    • 3. Accessory must have successfully given aid to felon to HINDER the felons apprehension, conviction or punishment
    • Not an accomplice, nor punished on same level to same extent as prescribed for felon
  112. Theft
    • C/L Reqs: 1. Trespassory talking; 2. Carrying away; 3. Tangible personal property; 4. Of another; 5. With the intent to permantly deprive the owner
    • complete upon the slightest movement; applies to services and intangibles
    • Applies to misplaced/mislaid prop (D knows owner)
    • Good Faith claim to right valid defense
  113. Must Know Distinctions
    • deproved- heart murder/ involuntary manslaughter
    • Embezzelement/ larceny by trick
    • False pretenses/ attempt
    • Legalimpossibility/ factual impossibility
    • Extortion/ mistake of law/ mistake of fact
  114. Attachment of Jeopardy
    • for a lesser included offense bars retrial for greater offense
    • Exception: where the state is unable to proceed on the more serious charge at the outset because additional facts necessary to sustain that change have yet togrow
  115. Defense of Property
    • non- deadly force (threatens only bodily harm) to defend against theft, destruction or trespass where D has R belief that prop is in immediate dangers and no > force necessary
    • immediate pursuite- NDF be used to regain possession or re- enter real property
    • Deadly force may never be used
  116. Entrapment
    • where crim plan is product of creative activity originating w/ law enforcement officials and D is no way predisposed to the crime ( Gov can encourage by providig opportunity or equipment)
    • D cant raise if D denies participation in the crime
    • D's past crim record relevant in proving predisposition
  117. Solicitation
    • Encouraging another to commit a felony or breach of piece; MPC REQUESTING another to commit any offense [ crime is commited once selicitation is made]
    • NO DEFENSE at common law
    • MERGES w/ the target felony
    • D must specifically INTEND the other party to commit the crime
  118. Voluntary Manslaughter
    • intentional killing mitigated by adequate provocation or other circstances negating malice after thought
    • casual connection must exist btwn the provocation and the killing( Timing= must not be long enough that a R person would have cooled off)
    • Mere words not sufficient for provocation
    • EX: "sharing that girl"
  119. Specific Intent Crime
    • Objective fault intent includes an actual subjective intent to caus the proscribed result
    • May be indicated by the words: "intentionally" "kowingly""purposely" "willfully"
    • The following are specific intent crimes: 1. Solicitation; 2. Conspiracy; 3. Larceny; 4. Larceny by trick; 5. False pretense; 6. Embezzlement; 7. Forgery; 8. Burglaty; 9. Assault; 10. Robbery, intent to kill murder; 11. Voluntary manslaughter
  120. Burglary
    Reqs: 1. beaking; 2. entering; 3. dwelling the house; 4. of another; 5. night time; 6. w/ the intent to commit a felony or larceny @ the time of breaking Must be an actual breaking (force or enlargining of opening) entering through open door or window insuffic Entry accomplished when body part enteers; Insertion of tool sufficient Constructive breaking entry gained by fraud
  121. Rape
    • C/L act of unlawful sexual ntercourse by a male person w/ a female person w/out her consent (penetratin required, busting a nut is not)
    • intercourse accomplished by sex may also be rape
    • no defese for "statury rape"
    • if the V is incapable of consenting, its rape
  122. Extortion
    • obtaining property by the use of threats of future harm to the V or his property threats include: Threats to expose V or her family to disgrace and threats to accuse V of Crime
    • Doesnt require threats if imminent harm MPC= expands scope
    • Defense: threats honestly made as restitution
  123. Right to Speedy Trial
    (6th A)
    • attaches once D is accussed (arrestt/ file charges)
    • pre- arrest delays, during investigation, may violate DP if sufficient prejudice (REMEDY= complete dismissed of charges)
    • The court balances: 1. lenght; 2. reason; 3. prejudice to D (presently incarcerated, loss of memory of W5)
    • The right is waived when D wilfully delays trial by filing suppression motion or pre trial motion
  124. Retrial After DJ attaches
    • Permitted if: 1. D appealla an constittion waiver and wins because of an error at trial; 2. Appeal was granted because of amount of evidence supporting conviction
    • 3. After mistrial on D's motion
    • 3. Manifes necessity (jury doesnt agree)
    • If judge grants acquital instead of mistrial following a hung jury retrial not permitted
  125. Duress
    • D R believes the only way to avoid unlawful threat of great bodily harm or imminant death is to engage in conduct proscribed by law
    • Must be R belief that threat will be carried out
    • Not available as a defense to MURDER
    • Defense to: arson, kidnapping, robbery, burglary
    • May be defense to felony murder if negates underlying felony
  126. Identifications
    Pre- indictment Due process Standard
    1. Pre-Indictment only line up will be in admissible if unecessarily suggestive; when out of court ID is exclded for suggestiveness or unreliabilty, subsequent in court ID inadmissible unless pross shows independent source of ID Factor consider and balanced against suggestiveness: 1. opp to view D @ scene; 2. W's degree of attention; 3. accuracy of W's description; 4. Degree of certanity of W; 5. Time interval btwn crime and id
  127. D J
    lesser- included offenses
    • once jeopardy had attached for a lesser-included offense, retrial is barred for greater offense
    • Exceptions: 1. elementsof the 2nd offense have not occured
    • 2. D makes motion for seperate triaks (waiver)
    • Seperate trials and punishments are proper when 1 unlawful act produces more than 1 separate crim offense
  128. Massiah Rule
    (6th A right to counsel)
  129. suspect has right to consel during police qestioning
    • once attached subsequent waiver of this right to any police initiated interrogation is valid ( D may nitate interro)
    • counsel must be present at all questioning until D waives right absent effective waiver- in crim stments w/out counsel or any deliberate eliciation not admissible
    • Polic Informants: passive listenng OK;BUT action beyond mere listening designed deiberatley to elcit in crin remarks wrong
    • Entrapment= confession or statement excluded
  130. Waiver of Miranda Rights
    • Burden on pros to prove waiver reqs: 1. knowing; 2. Intelligent (General inquiry= was there cop overreacting)
    • waiver must be explicit and voluntary cannot be presumed from D's sikence
    • Need not be in writing
    • Waives have been uphe;d even when obtained after police had misrepresented the strength of the case or the seriousness of the crime being investigated
    • When transactionalimmunity is granted no priv against self-in crim(anything you say will not be used against yu; not pro for what D did)
    • waiver valid as long as D was aware of M warnings and understood waiver
  131. Miranda Rule
    • Protects against undue influence while in custodial interrogation
    • M warning must be given when interrogation occurs where police know or R should know that acts or inquires wll result in incrimin response by D (need not be repeated if short break btwn interrogation)
    • statements made in violation are admissabe to impeach D's testimony at trial
    • If D request attorney or to remain silent all questions must stop
    • to resume: 1. time to elaspe and 2. fresh miranda
    • D may be questioned to unrelated crimes provided new miranda
    • public saftey exception: immediate threat to safety outweigh need to provide warnings
  132. Mens R
    • Intentionally: Desire to cause or substantially certain
    • Knowingly: Knows that the nature result of conduct exist ashe thinks
    • Purposely: there exist a conscious objective to engage in conduct or cause result
    • Wilfully: intentionally and purposely (evil purpose n crmes involving koral turpitude)
    • Wanton Conduct: high degree of risk of harm and awareness of such harm is requiredst occur at the time of the act (Actus Revs)(casual connection)
    • MU
  133. Intoxication
    • Valid defense for SPECIFIC intent crimes if it negates the mens rea. NOT A VALID DEFENSE FOR GENERAL INTENT CRIMES (desnt require specifc mens rea.)
    • Voluntary- no defense to crimes involving malice,recklessness,negligence, or strict liabilty
    • Involuntary-same circumstances as insanity
    • Excesive use- may bring about real insainity (if so insanity defense applies
  134. Attempt
    • elements: 1. specific intent; 2. significent over act
    • Merges w/ the target offense
    • specific intent can apply to both gen and specific intent crimes
    • over act= close enough that crime. Mere prep not enough Defense Abandoment: MPC voluntary and complete abandonment= renunciation (affirmative defense)
    • Legal impossibility
    • Inherent Impossibility (D inadequate to fulfill)
  135. Conspirac
    • Elements: 1. unlawful crm combo; 2. 2 or more peeps; 3. agreement; 4. w. specific intent to commit unlawful act
    • An overt act in furterance required
    • Scope: Each member liablefor crimes where: 1. Foreseeable outgrowth of the conspiracy; 2. Where committed in futherance of conspiratal goal
    • Nature of agreement determines single or mutiple:
    • single= chain= crimes commited under large scheme; members generally know each other and commonly of interest
    • Multiple: hub and spoke; 1 common member enters a series of independent crimes w/ diff peeps
  136. Common Law Classifications
    • Principal in 1st actual perpetrator who performs
    • Principal in 2nd present at scene of felony and encorages commision
    • Mere presence- insufficient bases w/out assistance or assistance w/out intent
    • May be punished to same extent as perp
    • Accomplice: gives assistance on encouragement or fails to act when duty and purposely intends to effectuate commission of crme
  137. Acomplice Liability
    • 2 Reqs: 1. Specificintent that crime be commited; 2. Accomplice must aid and a bet or encourage
    • Whether alleged accomplice intended to give aid or encouragement
    • Scope: R foreseeable in the process of commiting contemplated crime
    • Victim cannot be liable
    • Withdrawl may be a defense
    • Not liable for acts of false accomplice (secret agent)
    • Pretending to agree doesnt count
  138. Murder
    • C/L: unlawful killing of a human being w/ malice after thought (must be living person)
    • Applies to assisted suicide but not suicide
    • Proximate cause D may be guilty even if D didnt foreseeable exact chain of events ( BUT look for inteving events)
    • Timing requirement- w/in 1 year and 1 day
    • D takes the victim as he finds him- liable even if unusual condition of V attributes to death
    • Malice after thought= 1. intent to kill; 2. intent to cause serious bodily harm; 3. Depraved heart murder; 4. felony murder
    • Deadly waepons doctrine- inference raised through intentional use of instru.
  139. Felony Murder
    • unintentional killing proximantly caused during the comission or attempted comission of a serious in herently dangerous felony (BARRK burglary,arson, robbery, rape or kidnapping)
    • underlying felony must be independent from actus revs of death ( FM doesnt apply to murder manslaughter or agg assault)
    • Resulting death must be foreseeable (most are)
    • Death must occur during comission or preparation of felony
    • May be liable for deaths occured while fleeing, however reaching a safe house terminates the felony and D cannot be gulits of felont and murder
  140. Involuntary Manslaughter
    • Unintentional killing resulting w/out malice after thought caused by crim negligence or during the commission or attempted comission of an unlawful act
    • Crim neg= Gross neg or crim neg (D doesnt have to be conciously aware)
    • Unlawful act: msdemenor in malum in se(wrong in it self) or a felony which is not of the inherently dangerous type
    • killing must be foreseeable consequence or crim neg
  141. Assult
    • attempted battery intent to cause physical injury to V (intent to cause R apprehension to V)
    • intent to merely frighten= not enough
    • some states require present ability
    • condional threat insufficient w/out overt act to accomplish threat
    • Aggravated when: 1. D commits assault w/ deadly weapon; 2. D acts intent to rape or murder
  142. Embezzelment
    • Reqs: 1. Fraudulent; 2. Conversion; 3. Property; 4. Of another; 5. By one is already in lawful possession
    • One in lawful possession or entrusted with anothers property who fraudulently conerts it is guilty
    • intent may be negated by a claim of right or by an intent to restore to exact prperty
  143. Murder and voluntary manslaughter
    • Muder= Malice after thought
    • Voluntary manslaughter= dude provoked you to do that shit (heat of passion)
    • [Depraved heart murder= reckless indifference for human life]
    • Involuntary= you didnt mean it but you did some dumb sht ( negligence) or during commission of breaking the law (unlawful act)
  144. Search Pursuant to Stop
    • Must be reasonable 4th A seizure NO PC, but RS that crim activity is a foot; as the scopr of the stop increases, so should the justification for the stop;
    • Automobile stop: cops cannot randomly stop a vehicle for license and reg (too much cop discretion), May stop traffic to check so long as: 1. Random; 2. fixed on some formula
    • Sobriety CP's OK! to check for recent cromes when police set up CP to search vehicle for illegal drugs= not random or based on formula unlawful because primary purpose is indistinguished from law enforcement
  145. S.I.L.A
    • Purpose= to protect cops and prevent destruction of evidence includes- cursory scans of adjacent rooms (protective sweeps) If possible accomplice? cops can search entire house D's personand wng span can be searched (area w/in immediate control)
    • I arrest occurs in car cops can search passenger compartment only if R believes D will hace access of it contraband of offense
    • Merely a traffic citation Polic may not search car
    • Full custodial arrest= search even w/out fear ofsafety or belief of contraband
  146. Arrest
    • Person in custody when: 1. In presence of law enforcement; 2. Not free to leave; or taken into custody to commerce trial Generally no warrant req for arrest only (PC warrant req for arrest in home); 2. fear of flight or destruction of evidence; 3. hot pursuit [unless exigent circumstances exist'arresting officer must knock and annouce (K&A would be dangerous,futile or would inhibit investigation.
    • Cops may break windowns or other property
    • Generally cannot search in home of 3rd party (absent exigency)(or consent) for D w/out warrant
Card Set
crim pro