Criminal Fall Outline

Saturday, October 09, 2010

Criminal Law
Incur formal and solemn pronouncement of moral condemnation of the community

Principles of Punishment
Accomplish primary goal of protecting society and to achieve all of related goals of theories applicable

Retribution- proportionate punishment according to crime

Isolation-
Deterrence- utilitarian; only justifiable if results in reduction of crime
General/specific deterrence
Education
Rehabilitation

Sources of Criminal Law

• Common Law
• Statutory Law
• Classifies into felony or misdemeanor.
• Model Penal Code
Determining Appropriate Sentence
Constitutional Limitations

A. Bill of Rights
Proportionality
8th amendment: excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment
inflicted.
"punishment should fit the crime"
3 Factor Test
1. Gravity of offense and harshness of penalty
2. Sentences imposed on other criminals in same jurisdiction
3. Sentences imposed for commission of same crime in other jurisdictions

A. 14th amendment via states

Law which abridges privileges or immunities of citizens of US
Due process
Equal protections of laws

Sentencing
State Law Majority: determinate sentencing (no discretion to corrections officers to reduce sentences based on rehab in
prison)
Federal Law: Federal Sentencing Guidelines
Death penalty does not violate constitution; but death penalty for other than murder usually disproportionate

Prohibition on retroactive crimes (Ex Post Facto)

Legislative Intent

Plain Meaning

Interpreting Statute
1. Statutes should be understandable to reasonable law abiding citizen (cannot be vague)
2. Should not delegate basic policy matters to enforcement officers
3. Judicial interpretation of ambiguous statutes should be biased in favor of accused (Lenity Doctrine)
4. If statutory language is clear then plain meaning governs
5. If common law not defined, then meaning assumed intended
6. Ejusdem generis: general language follows specific terms in statute. Construe more narrow (I.g. dangerous weapons
followed by weapon list. Anything not included is not a dangerous weapon)
7. Expression of one thing is exclusion of another: enumerating specific items; anything legislature did not include was
left out intentionally
8. Congress legislates with domestic concerns in mind

Model Penal Code: does not recognize lenity doctrine. Ambiguity interpreted through purposes of code

General Principles in Criminal Trials

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General Principles in Criminal Trials
Process
1. Investigation
2. Charges (Indictment)
3. Pretrial Motions
a. Exclusion of evidence
Preliminary Hearing (probable cause hearing)
1. Trial
Plea Bargain
1. Jury Instruction
2. Motion for judgment of acquittal
3. Basis of Appeal (insufficient evidence, improper jury instruction, evidentiary challenge, constitutional challenge)
Statutory Law

Jury Trials: right to jury only applies to non-petty offenses (more than 6 mo)
Few as six (federal govt= 12)
Substantial majority to convict (fed= unanimous)
Jury Nullification: can return acquittal even if believed guilty based on statute immoral, unjust, punished enough, or
misbehavior by prosecutor/officers

Proving Case
Most criminal trials law is not in dispute.
Facts
Raw: who did what to whom, when and why?
Normative: mental state determination

Burdens of Proof
A. Burden of Production: Prosecutor must produce enough evidence that rational trier of fact may determine that
elements of the crime have been proved beyond reasonable doubt.
If fails to satisfy burden of production then defendant entitled to directed verdict
Defendants Burden of Production: sometimes requires defendant advanced notice of defenses: more than a scintilla
of evidence or enough evidence to raise a reasonable doubt on issue of defense claimed.

Burden of Persuasion: Jury determines whose claim is more persuasive.

Prosecutors: (Winship Doctrine) person charged with crime presumed innocent: prosecutor burdened with proving
every element of crime beyond a reasonable doubt.

Defendants Burden of Persuasion: Prosecution to prove beyond reasonable doubt all affirmative defenses (Massachusetts) If
Defendant meets burden of production jury must permit defense to be evaluated. If not jury should reject defense.

State free to legislate whether burden of proof is on defendant on state for particular facts.

MPC: Except for exceptions listed required standard of proof being preponderance of evidence prosecution must prove
every element of offense beyond reasonable doubt including conduct that negates an excuse. Prosecutor must prove
defenses if defendant meets burden of production.

Challenging Credibility
Credibility Assessment- Attacking Credibility
Remembering: memory of witnesses - ask for precise details
Observing: impeding vision- poor vision
Truth telling: show bias
Communication

Fact finding Evidence- Character Evidence

A. Act of Propensity Evidence:

FRE 404 Generally prohibits using evidence of character or character traits to prove that a party or witness acted
consistently with those traits on a particular occasion.

Characters poor value in predicting behavior on specific occasion; human tendency to judge based on bad trait.
A. Mental Propensity and other Uses of Character
Using character to establish that someone had particular mental state on particular occasion. (Ronnie has always been
peaceful)

Doctrine of Objective Chances: when accused makes mistake, evidence that he or she has been repeatedly claimed to make
same mistakes in other instances, can be used to prove that accused in fact was not mistaken in case at hand (date rape)
"mistaken consent"

Forms of Character Evidence

1. Reputation: people in relevant character speak of your character
2. Opinion: someone who knows you well can offer opinion of character traits

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 2. Opinion: someone who knows you well can offer opinion of character traits
3. Specific acts: committed certain actions in past suggest deeper personality traits

Example: Jonnie charged with assault.

Neighbors testify jonnie peaceful person. 2. next door neighbor opinions jonnie is peaceful person. 3. neighbors recall seeing
jonnie take hits.

Motive: concerns specific relationship between or among to two or more people that gives a suspect a reason to think or act
in a particular way on particular occasion. Motive proven by specific acts. Motive is usually circumstantial evidence to help
prove existence of element.
Can be explicitly made element of crime (hate crimes)

Habit: habit is a very frequently repeated response to very specific stimulus, response so frequent as to make it a good
predictor of behavior. "always changes blinkers"

Common Plan, Scheme, Design: prior acts relate to broader scheme.

Signature: calling card

Essential Elements of Crime, Claim , or Defense

Exceptions to Act Propensity Bar

Mercy Rule: allows defendant to seek to raise reasonable doubt about his guilt by proving good character. But allows
prosecutor to prove bad character.

Pertinent Character Trait of Victim: bad trait of victim

Impeachment: offered for act propensity to impeach witness

Special Rules: Rape Shield: Prohibits defendant to offer character evidence of immoral behavior by victim.

Act+ Mental State+ Result = Crime - Defenses

Common Law Model Penal Code Modern Statute/Trends

Actus Reus
Voluntary Act Voluntary: any conduct not product of effort or Status: (alcoholic, drug addict)
a. Voluntary Act or omission determination of defendant either conscious or cannot be criminalized
b. That causes social harm habitual. (excluding civil fine or penalty conduct)

Involuntary act: unconscious acts Involuntary: reflex, sleep movements, under

result of hypnosis, unconscious movements
Omissions: no duty to act in order to prevent
harm to another unless I.g. introducing drugs into jail must be reasonable
• Duty based on relationship foreseeable or
• Statute
• Contract Omissions: law defining offense provides for it. 2.
• Assumption of care duty to act otherwise imposed by law
• Creation of danger
Possession: knowingly procured, received thing,
Constructive possession: dominion and control. acquired control, aware of control for sufficient
time.

Specific: intent to engage in proscribed conduct
1. Intentionally causes harm. 2. acts with
knowledge that harm certain to occur
Transferred intent transfers state of mind of
crime. (must be same crime for intent)
Exception TI: misidentification may not be
considered.
Mens Rea
Purposefully: conscious purpose of causing Statutory Transferred Intent:
desired result.
Knowingly: aware that result is practically certain
to occur. Guilty if finding of willful blindness or
deliberate ignorance. If defendant is aware of
high probability of fact but avoids or ignores.
"ostrich instruction"

(solicitation, attempt, conspiracy, first degree Recklessly: awareness that conduct of particular
murder, assault, larceny, robbery, burglary, nature will cause particular result. Substantial and
forgery, false pretenses, embezzlement) unjustifiable risk that constitutes gross deviation
from reasonable standard of care.

General: awareness of acting in proscribed Negligently: failure to be aware of substantial

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General: awareness of acting in proscribed
manner. Volitional doing of prohibited act.
(Battery, Rape, Kidnapping, False Imprisonment)
Infer all mens rea from conduct
If no intent then general intent.
Malice: reckless disregard of known risk
(common law murder, arson)
Strict Liability: conscious commission of
proscribed act.
Public welfare offenses, statutory rape, selling
liquor to minors, bigamy.
Defenses of Mens Rea
Mistake of Fact: honest reasonable belief in
existence of facts should make act lawful
Specific: defense if mistake fact disproves specific
intent
General: Only reasonable mistake
Mistake of law: ignorance law no excuse even if
mistake reasonable.
Exceptions: passive crimes or no notice of crime.
Natural and Probable Causes: if natural and
probable consequences of actions then jury may
infer differently.
Actual Cause: requires government to prove that
but for the actions of defendant the result would
not have happened when it happened.
Proximate Cause: limits actual but for causation to
that directly related to the act.
F+P= Direct Cause: act direct cause of social harm If result deviates far from foreseeable, then not
and also proximate cause
Concurrent Sufficient Causes: if blows of each
could have caused result.
Obstructed Cause: perpetrator is protected from
suffering consequences beyond crime he
committed. Unless foreseeable.
Accelerating Result: If merely accelerated death,
defendant held responsible.
Unlawful killing of human being with malice
Aforethought
Actus Reas
Issue: year and day rule: at common law death
occurs more than one year after incident murder
is barred.
Mens Rea
Malice Aforethought
1. Intentional/knowingly kill
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Negligently: failure to be aware of substantial
risk; gross deviation from reasonable standard of
care.
Factors of Negligence: 1. gravity of harm 2.
probability of harm occurring 3. burden of
defendant desisting.
Recklessness implicates subjective fault that
defendant was in fact aware of substantial and
unjustifiable risk he was taking, but disregarded.
Discards common law distinction between general
and specific intent.
Limits mens rea to 4 terms
Requires application of mens rea to every
material element including affirmative defenses.
No strict liability except offenses as violations
All attendant circumstances must also be proved
with 4 culpable state of minds.
Mistake of fact and law:
Defense if
a. Knowledge or understanding element of
crime.
Legal defense if
a. Reliance upon official lawmaker
b. Defense proved by preponderance of
evidence.
Causation
But For Test exclusive meaning of causation.
Treats proximate cause as issues relating instead
to defendants culpability. Caused result with level
of culpability required.
Result too distant or accidental in occurrence to
have just bearing on liability.
guilty of purp/know.
Proximate cause handled within mens rea.
Purp/Know: causation not established if result
was not intended. Unless
Transferred intent
Injury less than intended
Rec/Neg: causation not establish if result not
within risk actor was or should been aware of.
Homicide
Victim born alive Some states protect fetus
No aforethought requirement/degrees.
Criminal Homicide: purposefully, knowingly,
recklessly, negligently cause death
(murder, manslaughter, or negligent homicide)
Murder
a. Purposefully, knowingly commits or
b. Commits during BAKER (burglary, ,
kidnapping, escape, or rape
c. Depraved Heart: extreme indifference to
 1. Intentional/knowingly kill c. Depraved Heart: extreme indifference to
2. Intent inflict grievous bodily injury human life)
3. Extreme recklessness d. Felony- presumption of recklessness and
4. Felony Murder indifference to human life
Kill another in commission or attempted
commission of felony. Manslaughter
Common law: escape part of felony a. Committed recklessly
Felony must be inherently dangerous. b. Committed under influence of extreme
(foreseeable risk of death) mental/emotional disturbance. Heat of
Passion Test.
Degrees of Murder 2nd degree

1st Negligent Homicide- negligent

a. willful, deliberate, premeditated "cold 3rd degree felony
blooded. Reasonable prudent person standard. Should
All 3 proven have known/aware of risks. Failure to use
Willful: intent to kill ordinary caution
Deliberate: course of action to kill
Premeditated: determination to kill
No set time
Factors: blows after death, ill-will,
conduct/statements, threats, brutal killings.

b. Killing by poison, lying in wait

c. Felony murder

2nd
Purposefully, knowing killing not 1st degree or
voluntary manslaughter.

Intentional- causing serious bodily harm

Felony murder- if not 1st by statute

Depraved Heart: extreme reckless killing

Voluntary manslaughter- intent to kill in heat of

passion. No malice

Test
1. Response to provocation
Would reasonable man lose control?
(mere words not enough)
2. Heat of passion
3. Time lapse not enough to cool down
4. Defendant subjectively has not cooled off.

Involuntary: unintentional killing

Rape
Sexual intercourse by male with female without Male sex with female not wife
consent
a. Compel force, threaten, bodily injury
1. Forcibly b. Substantially impaired
2. Means of deception c. Unconscious
3. Asleep or unconscious d. Less than 10
4. Non consent (underage, disabled, drugged,
mentally unable) 2nd degree unless- bodily injury or not voluntary
social companion with sexual history.
Statutory Rape: strict Liability
Fraud: fraud in factum: (not consenting to sexual
acts)

No strict liability statutory rape

Gross Sexual Imposition

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 Gross Sexual Imposition
1. Threaten (job loss)
2. Mental illness
3. Mistaken husband

Theft
Larceny 1. trespassory taking and 2. carrying away Value is market value.
of 3. personal property 4. of another person 5. Single larceny doctrine: same
intent to steal. bundle or parcel (same larcenous
impulse)
1. Trespassory: wrongful
2. Taking: interference possession rights
3. Carrying away: even one inch Receiving Stolen Property: person
4. Personal property has reasonable cause or should
5. Of another: not true owner just sole have reasonable cause to believe
possession property obtained through theft.
6. Intent to steal (Specific)
Dangerous weapon: represents or
Asportation: take and carry away conduct that person is armed in
manner to lead reasonable person.
Does not require to steal from lawful owner.
Larceny requires permanent deprivation. (if intent Use of Force: if use of force is used
does not exist at time but later decides to keep, to overcome interference of taking
cont trespass doctrine) then armed robbery.

Burglary: 1. breaking and entering 2. dwelling 3.

nighttime 4. intent to commit a felony. (specific
intent)

Continuing trespass- defendant retaining

possession of item is trespass and moment
permanently hold item then larceny is complete.

Lost property: finder must make reasonable effort

to find owner.

Breaking Bulk Doctrine: when bailee breaks open

bale and takes portion then larceny.

Larceny by trick: obtain property for one reason

and with another intent.

False Pretenses: knowingly obtains title by false

premises. False representation of fact.
Nondisclosure only represents false pretense if
fiduciary relationship involved.

Embezzlement: entrustment of property then

conversion to personal use.

1. Specific Intent to commit crime 2. some acts in Substantial step in a course of conduct planned
furtherance of that intent.
Mens Rea Requirement: 1. mental state crime
requires 2. purpose to bring about acts and
results that are elements of crime. 3. merely
knowing of existence of attendant circumstances.
Negligent crimes are logically impossible.
Actus Reus Test
Preparation is not enough; must be in dangerous
proximity of committing crime.
Attempt
to culminate commission of crime.
Same Penalty as crime attempted.
Defenses
Allows renunciation or abandonment crime as
defense: voluntary renunciation of person's
criminal purpose.
Not all disturbing remarks are
criminal threats.
Most jurisdictions do not recognize
factual impossibility only true legal
impossibility as defense.
Legislatures can make certain
preliminary conduct a crime.

Indispensable: control over all factors in

commission of crime. Nothing left undone.

Last Proximate Act- test abolished

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 Last Proximate Act- test abolished
Penalty is proportion of crime.

Factual Impossibility: mistaken about facts but if

correct crime would have been accomplished.
Not support by CL

Defenses
Legal Impossibility Defense: D believes crime but
legally not a crime.

Does not recognize abandonment of crime

defense. Crime complete when perpetration line
crossed.

1. Soliciting another to engage in criminal conduct
2. With intent that that person do so
Party does not need to consent as crime is
completed as soon as solicitation.
Solicitation
1. Commands, encourages, requests another to
engage in specific criminal conduct.
2. Immaterial failure of communication
3. Renunciation defense: after solicitation
persuade other or prevent crime.
Solicitation Merges into crime of
attempt and completed offense.
Cannot convict person of both
solicitation and attempt.

Agreement between 2 or more persons to commit
a crime.
Specific intent crime
Intent to agree inferred by stake in outcome.
Conspiracy is separate crime from object crime. (i.g.
conspiracy to rob bank and bank robbery)
Elements
1. To agree
2. To commit the object crime
Conspiracy
Agrees to engage or aid in conduct that
constitutes crime.
Requires an Overt Act
Any form of behavior that can reasonably be
interpreted as behavior as agreement.
Unilateral requirement (i.g. undercover officer)
Merger: conspiracy may merge.
No Grading sentences
States are split on issue of plurality
Merger Majority Rule: conspiracy
separate offense than any
substantive crimes.
Abandonment: if accused abandons
agreement and withdraws. Courts
require communication with
coconspirators or notification of
authorities.

Mere presence is not enough to establish

conspiracy

Plurality requirement: two parties needed.

Conspirators not need to know everyone in

conspiracy.

"wheel conspiracy"

Proof can be used against every other member of

conspiracy.

Pinkerton Vicarious Liability: Overt act of one

conspirator may be act of all without new
agreement specifically directed to act. Offenses
must be reasonably foreseeable. Many states do
not accept.

Abandonment not defense

Accomplice Liability
Aiding and abetting; accessory Principal does not have to be convicted for Eliminates distinction between
Not a separate crime and only applies if target accomplice to be held liable. principals and accessories. All are
crime is committed. principals and imposed to same
Accomplice liable even if principal never tries to punishment.
commit crime.
Elements Accessory after the Fact: some states

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Elements
1. Intentional assistance
2. Same required state of mind as principal
3. Exceptional Natural and Probable
Consequences
Principal must be convicted for accomplice liability
Accomplices
1. Principal first degree perpetrator
2. Principal 2nd degree (accessory at fact) assist
in crime and scene of crime.
3. Accessory: not present but counseled,
advised, or directed commission of crime or
aided in escape.
Aiding and abetting
More than evidence of general criminal activity .
Must prove specific intent and knew of proposed
crime.
Encouraging can constitute aiding
Mental State
1. Mental state of crime and 2. purpose to
commit act of aiding.
Accessory after the Fact: some states
Mental State: must have purpose of aiding both have separate statute for any one
in committing acts and underlying substantive who aids, assists after crime.
crime.
Jury may charge defendant both as
Does not recognize natural and probable principal and accessory.
Natural and Probable Consequences
Doctrine: Some jurisdictions hold
liable for natural and probable
consequences: foreseeable
consequences of actions aided. (i.g.
murder in theft)
Innocent Instrumentality: person who
uses individual to commit crime is
principal unless person used was
aware of high probability of being
used. Willfully blind not defense.
Some states can be convicted of
greater crime than perpetrator: more
guilty mens rea.

Defenses
Right to Present- 5th amendment + 6th amendment (due process + right to confront witnesses)

Inconsistent Defenses allowable in court if supported by sufficient evidence

Client Perjury: dissuade client from making false statements, professionally acceptable to notify court of clients intent. Some courts
encourage lawyers to call defendant to witness and have him narrate to avoid lawyer making false statements.

General Defenses
1. Countering/Contesting
a. Failure of proof- Motion for directive verdict/ judgment of acquittal
b. Impeachment
c. Misidentification- DNA evidence
d. Alibi Defense- places defendant at relevant time in a difference place than the scene involved and so removed as to render
impossible for accused to be guilty party.
1. Affirmative (Burden of Proof always on Prosecution in MA)
a. Justified- e.g. self defense
If allowed in evidence, then right to defense/justification claim
b. Excused- insanity, incompetence
1. Cultural/Religious Defenses
2. Limitation on the Right
a. State law- states has right to limit certain rights to defense
b. Speculative/unwarranted
c. Unduly Repetitive

Common Law Model Penal Code Modern Trends

Self Defense
Right to defend oneself against unlawful force Non-deadly force Battered Spouse Syndrome Defense
Person may not use self defense to resist an
1. Honest reasonable fear of personal harm arrest even if arrest in unlawful.
2. Imminent and unlawful
3. Belief force necessary to repel Deadly Force
Majority: objective view Necessary to protect himself against
4. Force proportionate 1. Death
5. Defendant not aggressor 2. Serious bodily injury
6. (some states) defendant must retreat before using 3. Forcible rape
deadly force. 4. Kidnapping

*Cannot be an aggressor
Defendant must prove self defense by

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 Defendant must prove self defense by
preponderance standard. Retreat Rule
Cannot use deadly force if complete safety
Use of Non-deadly force by retreating is an option.
One is never permitted to use deadly force to repel Retreat not required at home or place of
non-deadly attack. work.

Use of Deadly Force Defense of Others

When confronted with deadly force
1. No more force than reasonably
Retreat Rule believes necessary to protect 3rd
Majority: no duty to retreat party.
2. Reasonably believes 3rd party
Castle Rule: no duty to retreat if in house unless justified in using self defense
aggressor. 3. Reasonably believes intervention is
necessary for 3rd party protection.
Battered Spouse Syndrome: woman cannot be
expected to retreat before using deadly force Defense of Property
No immediacy requirement
Imperfect Self Defense
Disproportionate use of force Defense of Habitation
Defendant erroneously believed in danger No recognition
Murder to manslaughter
Law Enforcement
Defense of Others
justified in using to extent that 3rd party is justified May not use deadly force to apprehend
in acting in self defense. felon.
Majority View: Reasonable Appears necessary
Use Deadly force if threat to others
Defense of Property
Use of non deadly force if reasonably believes force No allowance of spring guns.
is necessary to prevent imminent and unlawful
dispossession of property. No use of deadly force
allowed.

Hot Pursuit can use reasonable force to retake.

Defense of Habitation
Person may use deadly force to defend home.

Law Enforcement
A. Crime prevention
Majority rule: use deadly force to prevent violent
crime.
B. Arrest: fleeing felon rule separates citizen/officer
Pursue and use deadly force if reasonably believed
felony

Spring Guns: allows contraption as if present

Excuse Defenses
Necessity - Choice of Evils Duress
1. Plaintiff faces choice of evils
2. No apparent legal alternative Model Penal Code: no imminence or
3. Imminent harm deadly force required
4. Plaintiff reasonably chooses lesser evil (a crime) Murder not exempted.
5. Plaintiff did not create necessity
Split as to homicide Entrapment: Objective Test
*objective officers nature of police conduct
*Generally Economic Harm is not enough before crime
*State court can place burden of proof on
defendants for affirmative defenses.

Civil Disobedience- Direct/Indirect

Direct: protesting existence of law by breaking
law directly.
Indirect: violating law that is not itself object of
protest

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 protest

Duress
1. Plaintiff coerced to commit crime
2. By unlawful threat of death/grievous injury
3. No fault of plaintiff
Does not excuse murder
*Future harm is not enough

Entrapment
1. Applies only to government agents
2. Subjective (majority)
3. Issue of Selective Prosecution

*subjective defendants disposition before

offense (predisposition: defendants willingness
to commit crime before entrapment)

Competency (To stand Trial)

1. Focus- Plaintiffs state of mind at trial
2. Test (Preponderance of Evidence on defendant
to prove unable
a. To understand charges Involuntary: Self Induced
b. To assist lawyer Usually cannot be charged with crime of
purpose or knowledge
Usually raised before trial and is submitted to
examination and cross examination.

Burden of Proof on defendant.

Usually bench trial.

Once Plaintiff found incompetent

Civil Commitment until found competent.
Length of holding must be reasonable proportionate to
crime.
Drugs can be used to restore sanity.

Insanity
Insanity not constitutional right.

Focus- plaintiffs state of mind at time of crime.

Insanity Tests
a. M'Naughton Rule: distinguish right from wrong
b. MPC Test: lacked capacity to conform conduct
to requirements of law.
c. Irresistable impulse: unable to control actions.

Procedure of Insanity (Notice)

Meet Burden of Proof
Verdict- Not guilty by reason insanity, not guilty, guilty
but mentally ill)
Confinement

Diminished Capacity- Partial Responsibility MPC (Extreme mental or emotional

disturbance)
Capacity (infancy)
Under 7 no criminal activity 15 under- JC
7-14 presumed 16-17 " "
14+ same as adult Unless court waives and binds order (judge
decision)

Intoxication

Voluntary: generally not excuse Intoxication is defense.

Can negate purposeful/knowledge
Involuntary (some states complete defense) Burden of proof for defendant to prove.
1. unaware

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 Burden of proof for defendant to prove.
1. unaware
2. Forced to take
3. Unforeseeable (medication side effects)
May serve as defense for general/specific

Strict Liability

Cannot be defense unless negates element of crime.

Criminal Procedure
Tuesday, September 28, 2010
8:12 AM
4th Amendment: Rights of people to be secure in their persons, homes, papers, effects, against unreasonable searches and seizures,
shall not be violated, and no warrants issue but upon probable cause, supported by oath, describing place, persons to be seized.

Theme: Balance of prerogatives of government and liberty of the individual

 Warren Court: civil liberty (Mapp and Miranda) 60s

 Rehnquist Court: lifting constraints on police "War on Drugs" 80-90s
 Warren Court- applies federal rules to states

Overview

14th amendment fused state/federal constitution law "not deprive any person of life liberty or property without due process of law.

Exclusionary Rule requires suppression of evidence obtained in violation of 4th

Mapp v Ohio - suppression of evidence covered state

Miranda- protects accused 5th rights against compelled self incrimination

Criticism: violates federalism- tips scale too much in favor of accused

1970s- court limits exclusionary rule

 Deny standing
 Good faith exceptions
 Curtail impact of Miranda and Mapp

States can expand protections; constitution is floor mandate

Search and Seizure

Framers Intention: Avoid open ended licenses to search

View: Warrantless searches and seizures are generally unreasonable barring certain circumstances

When Does 4th amendment apply? Was there a search under the 4th?

" 4th implicated only when government intrudes into an area deemed in one in which citizen may reasonably expect privacy."

Whether private party is covered by 4th is determined by whether he is "acting as an instrument of the state"

1. Degree of government encouragement

2. Purpose of action (government or promote own business objective)

Reasonable expectation of Privacy

"people not places" Katz

1. Does person have reasonable expectation of privacy. 2. would society deem as objectively reasonable? Overturned Olmstead
Trespass Doctrine

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Whether search occurred: the setting observed and vantage point of search.

Home has Greater Expectation of Privacy

Overnight Guests of home afforded protection under 4th. (Minnesota v Olsen)
Hotel rooms are protected (Stoner v CA)
Cannot use technology that trespasses confines of home (Kyllo v US)

No Expectation of Privacy
"open fields do not provide setting for intimate activities that amendment shelters"(Oliver v US)
Business Associates not given same protection of house as overnight guests (Minnesota v Carter)
Curbside Trash (CA v Greenwood)

Justification of Search

Probable Cause- Standard for Search and Arrest

Warrantless search then police make evaluation of probable cause

A reasonable person conclude that particular individual has committed a crime/or about to, or that specific items related will be
found.

Trustworthy hearsay (must be demonstrated in court) or personal observations (Gates)

Informant needs to be reliable and credible.
Balanced assessment of relative weights of all various indicia of reliability of tip
Draper Test: basis of knowledge prong
Probability not technical, not a neat set of legal rules
Based on specific facts not mere suspicion

Flight alone is not enough for probable cause; just a factor.

High crime area is only a factor in establishing probable cause

Cannot hold someone without hearing of probable cause (Gerstein and Dunaway)

Reasonable Suspicion - "Stop and Frisk" interest of effective crime prevention

Brief detainment/questioning and frisk for weapons
Specific and articulable facts to reasonable suspicion that crime is about to occur.

Informant can provide "indicia of reliability" (Adam v Williams)

For search- armed and dangerous only

What Constitutes a Stop?

"when officer of physical force or authority restrained liberty of citizen"
"if a reasonable person would have believed that he was not free to leave"

Terry stop must last no longer than is necessary to effectuate the purpose of the stop.
Although rigid time frame for Terry Stop (US v Sharpe)
Stop cannot go beyond what is needed to find weapons. Must immediately be aware of contraband feel and touch is okay (Minn v
Dickerson)

If nature and detention arise to arrest then probable cause must be shown

Expansion of Terry Stops

Automobile
Officer may stop under articulate reasonable suspicion person violated law (Hensley) or traffic violation. (Whren) Frisk if suspected
of weapons (Moore)
May also require person to identify themselves (Hibel)
Home
Protective Sweep only long enough to resolve danger- only where persons may be found (Maryland v Buie)
Administrative Searches (impounds (Oppermann), DUI checkpoints (Sitz), drug screening, inspections)
Balance Test
Importance of administrative object to public interest v 1. scope of intrusion 2. discretion 3. expectation of privacy
Searches conducted to neutral standardized criteria and procedures. Probable cause is not needed

Search and Arrest Warrants

1. Issued by neutral magistrate

2. Probable cause
3. Warrant must describe place, items, person to be searched/seized

Execution of Warrant

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Execution of Warrant
Police can conduct warranted unannounced entry if circumstances are necessary. Knock and Announce not needed (Wilson v
Arkansas)

Unreasonable to search entire house with arrest warrant, barring exigent circumstances (Chimel v CA)

Mere evidence collected during valid search admissible (warden v Hayden)

Warrantless Searches and Seizures

Exceptions that require probable cause: exigent circumstances

Compelling urgency, warrant was risky
1. Probable cause that suspect had committed crime (Watson)
Hot Pursuit Doctrine
Officers must be in pursuit of person and have probable cause they have committed a crime and are in a particular dwelling.
Probable cause can be based on witnesses. Immediate and continuous pursuit
1. Destruction of evidence
2. Escape of suspect
3. Danger to police or others

Exceptions that require probable cause: Search Incident to an Arrest

Permits search of person and area immediately surrounding object of arrest (Edwards)
1. Arrest must be lawful (probable cause)

Exceptions require probable cause: Automobile search and containers

Warrantless search of car as long as officer has probable cause to believe there was contraband in vehicle. (Acevedo)
Less privacy in car and searches are permitted of containers/entire car (Chambers v Maroney)

Exceptions that require reasonable suspicion: stop and frisk

Exceptions that require administrative justification: admin/inventory searches

Custodial administrative search at station (Lafayette)
Federal Statutes such as railway which protect public interest (Skinner)
Area code enforcement on consent (Camera v SF)

Warrantless intrusion with no justification: Consent Doctrine

Rule: Would a reasonable person decline the officer's request?

Co-occupant may consent (Matlock)

Police in good faith may get consent by resident with no real authority to allow search (Rodriguez)

If consent is disputed by co-occupant then no search (Georgia v Randolph)

Plain View Doctrine

Does not permit search (Az v Hicks), only seizure of something already discovered. Does not provide justification of entry

1. Original intrusion lawful

2. Observed while officer is in permissible scope of intrusion
3. Immediately apparent item is contraband
*Inadvertent Discovery not criteria (Horton v CA)

Schools
Only reasonable suspicion needed to search at public schools (NJ v TLO)

Exclusionary Rule (Mapp)

Fruit of the Poisonous Tree Doctrine

Evidence directly and indirectly derived from violation is excluded as well

Test: whether secondary evidence was discovered by exploitation of initial illegality or instead by means sufficiently attenuated to
be purged of the original taint. (Wong Sung)

1. Time period between illegality and obtaining

2. Occurrence of intervening events
3. Flagrancy of initial illegality

Factors Helping: Miranda, Free Will, Other intervening factors <Evidence> <Time Lapse)

Exceptions of Exclusionary Rule

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If obtained from independent source and not solely on exploitation, then evidence will not be suppressed. (Kastigar)

Inevitable Discovery Rule (Nix v Williams)

Limitations of Exclusionary Rule

Standing: person must have had rights violated in order to exclude evidence. (Rakas)

Exclusionary Rule irrelevant in grand jury proceedings and habeas corpus

Good Faith Exception: faulty warrants: officers reliance on warrant must be objectively reasonable. (Herring)

Impeachment Exception: evidence unlawfully obtained is admissible when being used to impeach. (Ventris)

Harmless Error: if conviction would have resulted due to overwhelming evidence, verdict not overturned.

5th amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall
any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation.[1]

Voluntariness Standard

Balance: legitimate interest of police in obtaining evidence and protecting individual

Non-voluntary statement not admissible in court

Length of detention, deception. Generally must be product of overreaching by police

1. Police subjected suspect to coercive conduct
2. Conduct was sufficient to overcome will of accused

Factors: police conduct, vulnerability of defendant (child, mentally challenged, duress)

Threats, Coercion, deception and trickery alone do not constitute threshold. The totality of circumstances as a whole must be taken
into consideration.

Miranda Approach (1966)

Right to remain silent and anything he says may be used against him in court. Right to have attorney present during questioning and
if he cannot afford one, appointed to him.

If individual exercises right to silence or attorney, interrogation must cease and cannot be assumed guilt (Doyle)
Post Miranda if statement is read prosecutor has to meet "heavy burden" that defendant knowingly and intelligently waived right.

Only active in context of custodial interrogation." restrain of freedom like to a formal arrest" would a reasonable person in suspect's
position believed himself to be in custody and deprived of freedom?

Interrogation
Voluntary statements not covered by doctrine
Physical evidence obtained from un-Mirandized voluntary statements is admissible, although the statements, themselves may not
be. (Patane)
Functional equivalent of questioning (reasonably likely to elicit an incriminating response) (Innis/Brewer)
Must have essential ingredient of a police dominated atmosphere. (Perkins/Mathiason)
Routine background questions not interrogation (Muniz)
Cannot use condition of termination for public employees as coercion (Garrity)

Waiver of Miranda Rights

Defendant must unambiguously invoke rights and silence is implied waiver (Berghuis)
Express or implied waiver of rights through conduct of suspect. (Montejo)
"knowingly intelligently, and voluntarily waived his privilege. (Elstad)

Use of Statements for Impeachment

Illegally obtained statements can be used against defendant in impeachment (Harris)

Suppression of Fruits of a Statement Obtained in violation of Miranda

Evidence derived from statement (physical or testimonial) will be admissible as long as statement was not coerced and involuntary
(Elstad)

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6th amendment Right to Counsel (Applies to State Powell)
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district
where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his defense.

Effective legal counsel:

Defendant must prove 1. deficient 2. and deficiency prejudiced the defense. Standard is of reasonable effective assistance.
(Strickland)

Speedy Trial is relative to the totality of circumstances (Barker v Wingo)

Cross Examination of Witnesses is a right (Crawford/Pointer)

Jury Selection cannot discriminate against race or gender without specific reason (Batson/JEB/McCollum)

First Appeal only (Douglas/Moffit)

Massiah Doctrine: Government cannot deliberately elicit incriminating statements after right to counsel has been invoked (Brewer v
Williams)
1. Government deliberately elicited incriminating statements from accused in absence of counsel. And 2. after initiation of
judicial proceedings. (Kirby)

Government must take some deliberate action to elicit a confession. Much lower bar for sixth violation than Miranda.

Waiver

Initiation of further communication after waiver of counsel.

Other Investigatory Procedures

Eyewitness Identification: physical attributes on public display are not protected (facial appearance, hand writing (Anderson) , voice)
(dionisio)

Totality of circumstances
Show-up (no attorney needed) but illegal if
1. Unnecessarily suggestive 2. likely to lead to mistaken identification (Kirby)

Bodily Intrusions

Weigh intrusiveness and risks against governments need for evidence. (Winston v Lee)

Under 5th, evidence needs to be testimonial. (Muniz)

Rights of Accused
 Double jeopardy bars litigation between the same parties of issues actually determined at a previous trial. (Ashe v Swensen)
 Double Jeopardy only attaches after a judgment has been rendered. (Somverville)
 If defendant is unruly he can be placed in contempt or thrown out of court (Allen)
 Where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause f or
his failure to raise the claim in accordance with applicable state procedures. (Reed v Ross)
 Criminal Trials open to public/media (Richmond Newspapers)
 The state courts must instruct juries under due process to find the defendant beyond a reasonable doubt guilty (Victor)
 False testimony may be a factor in sentencing. (Grayson)
Evidence
To overturn conviction; a reasonable probability conviction would have been different if material evidence have been disclosed.
(Agurs)
If evidence is destroyed/lost defendant must prove acted on bad faith (Youngblood)
Testimony at suppression hearing may not be admitted against defendant at trial. (Simmons)
Plea Bargaining
If guilty plea is voluntary it is valid (Brady/Alford)
8th amendment
No excessive Bail (Stack v Boyle)

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