Critical Pass - Crim Law
Criminal Law Principles
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Actus Reus
The act required to commit a given crime
- A required component of every common law crime, along with mens rea (see Card 2)
Requirement—voluntary physical act
- To satisfy the actus reus requirement, D must perform a voluntary physical act, e., a voluntary bodily movement
Omission as actus reus—a failure to act can constitute actus reus if:
- D had a specific legal duty to act;
- D had knowledge of facts giving rise to the duty; and
- It was reasonably possible for D to perform the duty
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The mental element required at the time a crime was committed; a required element of common law crimes, along with actus reus (see card 1)
Forms of mens rea — intent requirements differ by crime:
- Specific intent — D must have a specific intent or objective to commit the given crime
- Specific intent must always be proven; never inferred
- Mistake of fact and voluntary intoxication are defenses
- General intent — D must be aware of his actions and any attendant circumstances
- May be inferred from the act itself
- Note — most crimes are general intent crimes
- Malice — D acts with reckless disregard or undertakes an obvious risk, from which a harmful result is expected
- Applies to arson and common law murder
Strict liability — no intent or awareness is required for strict liability crimes (i.e., no mens rea requirement)
- Arises with statutory rape, administrative, regulatory, or morality crimes
Vicarious liability — person without fault is held liable for another’s criminal conduct (like respondeat superior — See Torts)
- Often arises with employment or business associations
See Card 4 - Major Crimes & Requisite Mens Rea
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MBE questions occasionally invoke language from the MPC’s fault standards. Thus, it is important to know these definitions:
Purposely (subjective standard)
- A person acts purposely when his conscious objective is to engage in certain conduct or cause a certain result
Knowingly (subjective standard)
- A person acts knowingly when he is aware that his conduct is of a particular nature or knows that his conduct will necessarily or very likely cause a particular result
Recklessly (subjective standard)
- A person acts recklessly when he knows of a substantial and unjustifiable risk and consciously disregards it
Negligence (objective standard)
- A person acts negligently when he fails to become aware of a substantial and unjustifiable risk
Note—MBE generally tests common law, unless otherwise instructed
- Though the MBE usually tells you which law is applicable, when in doubt, apply common law
General intent
- Battery — see card 22
- Rape — see card 23
- Kidnapping — see card 24
- False imprisonment — see card 24
Specific intent
- Attempt — see card 12
- Larceny & Robbery — see cards 30, 35
- Forgery — see card 34
- False pretenses — see card 32
- Embezzlement — see card 31
- Conspiracy — see card 10
- Assault — see card 22
- Burglary — see card 36
- First-degree murder — see cards 26-27
- Solicitation — see card 9
Malice
- Common law murder (malice aforethought) — see card 25
- Arson — see card 37
Strict liability
- Statutory rape
- Regulatory crimes
- Administrative crimes
- Morality crimes (e.g., bigamy, polygamy)
Concurrence requirement — D’s criminal act and the requisite intent (i.e., mens rea) for the crime must occur simultaneously
- E.g., D plans on murdering victim at her home — D is not guilty of murder if he accidentally runs over victim with his car before reaching her house
Causation requirement — D’s conduct must be both the cause-in-fact and the proximate cause of the crime committed
- Cause-in-fact — but for D’s conduct, the result would not have occurred
- Homicide and manslaughter — any act by D that hastens victim’s death is a cause-in-fact, even if death is already inevitable
- Proximate cause — the actual result is the natural and probable consequence of D’s conduct, even if it did not occur exactly as expected
- Superseding factors — break the chain of causation
- Intervening acts — must be entirely unforeseeable to shield D from liability (e.g., victim’s refusal of medical treatment, third-party medical negligence — both are foreseeable and D is liable)
- Note — causation issues often arise in homicide crimes on the MBE
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D may be held liable if he intends the harm caused, but causes it to a different victim or object than intended
- Often applies to homicide, battery, and arson
- Does not apply to attempt
- Defenses and mitigating circumstances may also be transferred
Effect — under transferred intent, D is usually charged with two crimes:
- Attempt (to commit the originally intended crime); and
- The actual resulting crime
- E.g., D intends to shoot A, but kills B; D can be charged with the attempted murder of A and the actual murder of B
- Note — merger does not apply b/c there are different victims
- See Card 7 - Merger
- Note — merger does not apply b/c there are different victims
Under the merger doctrine, two or more offenses merge, prohibiting D from being prosecuted separately for each crime
- Merger concerns the relationship between either a) an inchoate offense and its completed substantive offense, or b) an offense and its lesser included offense
Inchoate offenses — only applies to solicitation and attempt
- Merger prevents D from being convicted of both solicitation/attempt and the target offense
- E.g., D completes a burglary after attempting it; D cannot be convicted of both attempt and burglary
- Does not apply to conspiracy (i.e., D can be convicted of conspiracy to commit a given crime and the crime itself)
- See cards 9-12 on Inchoate Offenses
Lesser included offenses — D cannot be convicted of a target crime and a lesser included offense
- Lesser included offense = consists of same but not all elements as the greater crime
- E.g., D robs V, but during the robbery D’s accomplice kills V; D can be convicted of felony murder but not the lesser included robbery offense
- Note — also barred by double jeopardy (see cards 59-60)
Note — crimes with different victims never merge
Requirements — to be liable as an accomplice, one must:
- Aid, counsel, or encourage principal before or during the crime
- With the intent a) to assist the principal; and b) that the principal commit the crime
Scope of liability — accomplice is liable for the crimes he committed or counseled and any other probable or foreseeable crimes committed
Defenses and exceptions — accomplice liability does not apply where:
- Withdrawal — accomplice can avoid liability by withdrawing from a crime before the principal commits it; accomplice must:
- Repudiate prior aid or encouragement;
- Do all that is possible to counteract the prior aid; and
- Do so before the chain of events is in motion and unstoppable
- Member of a protected class — those protected by a criminal statute are not liable as accomplices (e..g., minor-victims in statutory rape cases are not liable as accomplices to statutory rape)
- Parties not provided for in the statute — e.g., a purchaser of drugs cannot be an accomplice to the seller
Accessory after the fact — different than accomplice liability
- Involves helping a known felon escape arrest, trial, or conviction
- Gives rise to a separate, lesser charge of obstruction of justice
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Inchoate Offenses
Inciting, urging, or otherwise asking another to commit a crime with the intent that they commit the crime
- No affirmative response from the solicited party is required
Merges with the target offense — solicitation is complete when D asks solicitee to commit the felony
- If solicitee agrees, it gives rise to conspiracy and the solicitation merges with the conspiracy (i.e., the only crime remaining is conspiracy)
- Does not matter if the solicited party is convicted or if the solicited crime was impossible to commit
Defenses — very few defenses apply to solicitation
- Refusal by the solicitee is not a defense
- Impossibility and withdrawal are not defenses
- MPC allows renunciation as a defense, but common law does not
- Most jurisdictions follow the common law approach
An agreement between two or more people to commit a crime or unlawful objective
Required elements:
- An agreement between two or more people
- I.e., a “meeting of the minds”; express agreement not required
- Parties do not need to know of each other’s existence
- Intent to enter into the agreement
- Intent to commit the target crime or pursue the unlawful objective
- An overt act in furtherance of the target crime
- Not a requirement at common law
Unilateral vs. bilateral — at common law, two or more people must have criminal intent, but MPC allows only one party
- E.g., under MPC, D may be convicted of conspiracy with another party who was an undercover police officer
- Unless otherwise instructed, apply common law rule
Termination — conspiracy ends upon completion of the target crime
Defenses — impossibility is not a defense to conspiracy
- Withdrawal is generally not a defense to conspiracy but may be a defense to liability for co-conspirators’ subsequent crimes
See Card 11 - Co-Conspirator Liability & Withdrawal
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Co-conspirator liability — each conspirator is liable for co-conspirators’ crimes that are:
- Foreseeable; and
- Committed in furtherance of the conspiracy
Withdrawal:
- Under common law, one cannot withdraw from the conspiracy itself
- MPC allows withdrawal if the withdrawing party thwarts the conspiracy (e.g., by stopping it or notifying police)
- Subsequent crimes — one can withdraw from co-conspirators’ subsequent crimes, including the target offense of the conspiracy
- Affirmative act required — withdrawal is effective when the withdrawing party makes an affirmative act that notifies his co-conspirators he is withdrawing
- Must be timely — withdrawal must give enough time for co-conspirators to abandon plans for the target offense
- The withdrawing party must attempt to neutralize the effect of any assistance he provided to the original conspiracy
See Card 10 - Conspiracy
An act, done with the specific intent to commit a crime, that constitutes an overt or substantial step towards committing the crime but falls short of completing the crime
- I.e., an incomplete act that would be a crime if completed
Overt act — D must commit an act beyond mere preparation
- D must take a substantial step towards committing the target crime
- Under common law standard, attempt requires an act that is dangerously close to success
Intent — D must specifically intend to commit a particular crime
Defenses — legal impossibility is a defense to attempt
- Factual impossibility is not a defense
- Abandonment is not a defense — under majority rule, liability for attempt arises once D commits an overt act concurrently with the specific intent to commit a crime (i.e., D is liable for attempt before he can abandon the crime)
Capacity Defenses
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Legal insanity is a defense to all crimes, regardless of the intent requirement
- Depending on jurisdiction, one of four tests is used to determine whether D was so mentally ill when he committed a crime that he should be entitled to acquittal:
Four legal insanity tests:
- M’Naghten — D doesn’t know right from wrong
- Due to a mental disease or defect, at the time of the offense D lacked the ability to know the wrongfulness of his conduct or understand the nature and quality of his act
- Irresistible Impulse — D acted due to an irresistible impulse
- Due to a mental illness, D was unable to control his actions or conform his conduct to the law
- MPC — combination of M’Naghten & Irresistible Impulse
- As a result of D’s mental disease, D lacked the capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law
- Durham — but for his mental illness, D would not have acted
- D’s conduct was the product of a mental illness
Note — MBE questions will indicate which test applies
Infancy — a defense to criminal liability for minors
- Under 7 years old — no criminal liability
- 7-14 years old — rebuttable presumption against criminal liability
Diminished capacity — a defense based on D’s mental defect
- Available if D can show that he has some mental defect short of insanity that prevented him from forming the mental state required for the crime
- Usually limited to specific intent crimes
Due process & D’s mental condition during trial — Due Process Clause forbids D from being tried, convicted, or sentenced if, as a result of his mental disease or defect, D is unable to either:
- Understand the nature of the proceeding, or
- Assist his lawyer in the preparation of his defense
Capital punishment — D cannot be executed if he is incapable of understanding the nature and purpose of the punishment at the time of execution (see Card 69 - 8th Amend. & The Death Penalty)
Voluntary intoxication — a defense to specific intent crimes
- Voluntary intoxication = D chose to consume an intoxicant
- Alcoholics and addicts are voluntarily intoxicated
- Not available if D becomes intoxicated in order to commit the crime (i.e., “liquid courage”)
- Only a defense to specific intent crimes
Involuntary intoxication — a defense to all crimes
- Arises when D was given an intoxicant without her knowledge or forced to consume an intoxicant
- Requirements — an intoxicant is taken involuntarily if taken:
- Without knowledge of its nature,
- Under direct duress imposed by another person, or
- Pursuant to medical advice without notice of its intoxicating effect
- May be treated as a mental illness if, b/c of the intoxication, D satisfies the relevant jurisdiction’s insanity test (see card 13)
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Justification Defenses
Non-deadly force — may be used if D:
- No fault — D is not at fault (i.e., not the initial aggressor); and
- Reasonable belief of unlawful force — D reasonably believes it necessary to protect himself from imminent unlawful force
- No duty to retreat
- Allowable force — the amount of force permitted depends on the nature of the provoking offense; generally, it must be proportionate
Deadly force — may be used if D:
- No fault — D is not at fault (i.e., not the initial aggressor);
- Confronted with unlawful force —attacker must use unlawful force; and
- Reasonable belief of death or great bodily harm — D reasonably believes he is confronted with unlawful force that threatens imminent death or great bodily harm
- No duty to retreat under majority rule
Self-defense by an initial aggressor — available if either:
- Initial aggressor effectively withdraws before the need for self-defense arises and communicates his desire to do so, or
- Victim of the initial aggression suddenly escalates a minor dispute into a deadly altercation
Defense of others — same rules apply as for self-defense
- D can defend another if D reasonably believes the person he is protecting could have legally defended himself
Use of non-deadly force (NDF) or deadly force (DF) may be permissible to effectuate arrests or prevent crimes
Police use of force to effectuate arrest:
- NDF — permissible to reasonably effectuate arrest
- DF — permissible to:
- Prevent the escape of a fleeing felon; and
- Fleeing felon poses a threat of death or serious bodily harm
Citizen use of force to effectuate arrest:
- NDF — permissible if:
- Crime was actually committed; and
- Reasonable belief the person to be arrested committed it
- DF — permissible only if the person to be arrested was actually guilty of the offense for which the arrest was made and the DF was used to:
- Prevent the escape of the fleeing felon; and
- Fleeing felon poses a threat of death or serious bodily harm
Crime prevention — i.e., using force to prevent a crime from occurring
- NDF — permissible to prevent a serious breach of the peace
- DF — common law and modern rules differ:
- Common law — permissible to prevent commission of felony
- Modern — permissible to:
- Terminate or prevent a dangerous felony; and
- Felony threatens a serious risk to human life
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Defense of dwelling
- Non-deadly force — allowed to prevent or terminate an unlawful entry or attack on one’s dwelling
- Deadly force — may be used if one reasonably believes:
- Force is necessary to prevent attack on oneself or others by a person who made or attempted violent entry, or
- Force is necessary to prevent entry by a person who intends to commit a felony in the dwelling
Defense of property (non-dwelling) — deadly force not allowed
- Non-deadly force may be used if reasonably necessary to defend against unlawful interference with possessions or trespass on property
- Need to use force must reasonably appear imminent
- I.e., force not permitted if request to desist is sufficient
Recovery of property — force is not allowed to regain property wrongfully taken, unless one is in immediate pursuit of the taker
- E.g., D steals A’s purse; A can only use reasonable force to recover purse if she is immediately pursuing D
Miscellaneous Defenses
Necessity — valid defense if D believed his conduct was reasonably necessary to avoid an imminent and greater injury to society
- Objective standard — D’s commission of the crime must be reasonably necessary; good faith alone is insufficient
- Exceptions — necessity is not available if either:
- Crime committed results in the death of another, or
- D caused the events giving rise to the necessity
Duress — a valid defense to a crime D committed under reasonable belief that the crime was necessary to prevent death or serious bodily harm to D or a member of D’s family
- E.g., someone points a gun at D and threatens to kill him if he does not rob a bank
- Exception — duress is not a defense to any intentional homicide crimes
Consent — consent of victim is generally not a defense, but may be available if it negates an element of the offense
- Never available for certain offenses (e.g., statutory rape)
- Requirements — must be established that:
- Consent was voluntarily and freely given;
- Party was legally capable of consenting; and
- No fraud was involved in obtaining consent
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An available defense to criminal liability if a law enforcement agent has induced D to commit a crime
Required elements:
- Criminal design originated with law enforcement
- Criminal design = idea or plan for the crime
- D was not otherwise predisposed to commit the crime
- D must have had no predisposition to commit the given crime prior to his contact with law enforcement
- Law enforcement providing an opportunity for a person to commit a crime is not, by itself, entrapment
- E.g., undercover officer buying drugs from dealer; officer merely provided opportunity for D to make a sale
- Law enforcement providing an opportunity for a person to commit a crime is not, by itself, entrapment
Note — a very narrow defense; rarely effective b/c it is negated by any predisposition on D’s part
- As a result, it is unlikely to be a correct MBE answer
Mistake of law — almost never a defense
- Lacking awareness or knowledge that an act constitutes a crime, even if reasonable, is not a defense to that crime
- Exceptions — very rare, but can arise where either:
- Reasonable reliance on an invalid statute
- Mistake or ignorance negates an element of a crime requiring knowledge of the law
Mistake of fact — available as a defense only if it negates a requisite intent element (i.e., mens rea) for the crime — see table below
Note — mistake includes ignorance
Requisite mens rea element | Availability of mistake of fact defense |
Specific intent | Any mistake of fact is a defense |
Malice & general intent | Only a reasonable mistake of fact is a defense |
Strict liability (i.e., no intent) | Mistake of fact is never a defense |
Crimes Against the Person
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Assault — two theories of assault at common law:
- Assault as a threat — general intent crime
- Intentional creation of victim’s reasonable apprehension of imminent bodily harm
- Words alone are usually insufficient
- Assault as an attempted battery — specific intent crime
- Specific intent crime b/c it involves attempt
- Note — both of the above constitute assault for MBE purposes unless instructed otherwise
Battery — an unlawful application of force to the person of another resulting in bodily injury or offensive touching
- I.e., a completed assault
- General intent crime
Note — under modern statutes, both assault and battery have “aggravated” counterparts, which usually arise when the assault or battery is carried out with the use of a weapon
Common law — unlawful carnal knowledge of a woman by a man other than her husband, without effective consent
Modern statutes
- Often referred to as “sexual assault”
- The slightest penetration is sufficient to complete the crime
- Marital status insignificant
- Most states have abolished element of marital status
- Lack of consent — consent will not be found if:
- Penetration is accomplished by force or threat of immediate bodily harm,
- Victim is incapable of consenting due to lack of capacity (e.g., unconsciousness, intoxication, etc.), or
- Victim is fraudulently caused to believe the act is not intercourse
Note — other fraud or trickery alone does not constitute rape
- E.g., convincing someone you plan on marrying them in order to have intercourse is not rape
False imprisonment
- The unlawful confinement of a person without their consent
- Consent cannot be obtained through coercion, threat, or deception
Kidnapping
- The unlawful confinement of a person that involves either:
- Some movement of the victim (a.k.a. “asportation”), or
- Concealment of the victim in an unknown, hidden, or secret location
Note — false imprisonment can become kidnapping if the victim is moved and/or concealed
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The unlawful killing of another human with malice aforethought
Malice aforethought — arises when no mitigating facts reduce the killing to a lesser crime and D commits the killing with one of the following mental states:
- Intent to kill
- Intent to inflict great bodily injury
- Depraved/malignant heart — a killing committed with reckless indifference to an unjustifiable risk of human life
- Felony murder — killing caused during the attempt or commission of an inherently dangerous or statutorily enumerated felony
- Intent required = the intent necessary to commit the underlying felony
- Statutorily enumerated felony = statute dictates that a killing resulting from the crime constitutes felony murder
- See Card 27 - Felony Murder
Causation — D’s act must be both the actual and proximate cause of the victim’s death
- Any act by D hastening the victim’s death, even if already inevitable, is considered a cause
Most jurisdictions classify murder crimes into various “degrees” by statute
First-degree murder — arises if a killing is either:
- Deliberate & premeditated — D must have killed in a dispassionate manner and must have considered or reflected on his killing, even if only momentarily
- Specific intent crime — voluntary intoxication and mistake of fact are valid defenses
- Felony murder — killing during an enumerated felony
- Many states list felonies that may serve as the basis for felony murder
- See Card 27 - Felony Murder
Second-degree murder — a homicide not arising to first-degree murder
Note — if first-degree murder is not mentioned as a possibility in MBE question or answer choices, assume the question involves second-degree murder, which is often the “default murder” on the MBE
A killing that occurs during the attempt or commission of certain enumerated felonies
- Intent to commit felony murder = the intent necessary to commit the underlying felony
- Common felonies include burglary, arson, rape, robbery, and kidnapping
Felonies allowing for felony murder:
- Inherently dangerous felonies
- Statutorily enumerated felonies
- I.e., a criminal statute states that a killing occurring during its commission constitutes felony murder
Limitations on liability for felony murder
- D must be guilty of the underlying felony
- Valid defenses to the underlying felony are also defenses to felony murder
- The underlying felony itself must be independent of a killing
- E.g., involuntary manslaughter cannot be felony murder
- Victim’s death must be a foreseeable result (i.e., proximate cause) of the felony
- Victim’s death must be caused before D reaches a place of temporary safety
- D is not liable for the death of a co-felon killed by police or the original victim in majority of states
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A killing resulting from an adequate provocation (heat of passion killing) or imperfect self-defense
Adequate provocation — required elements:
- Provocation would cause sudden and intense passion in an ordinary person, causing him to lose self-control
- D was in fact provoked (i.e., D actually lost control)
- There was insufficient time for an ordinary person to cool off between the provocation and the killing
- D did not cool off between the provocation and the killing
- Note — adequate provocation is not a defense to murder
- But it can be a mitigating factor that reduces a murder charge to voluntary manslaughter
Imperfect self-defense — if D murders while acting in self-defense, his criminal liability can be reduced to voluntary manslaughter if either:
- D initiated the altercation that required self-defense, or
- D unreasonably believed deadly force was necessary
- Note — not recognized in all jurisdictions
A killing committed with criminal negligence or during the commission of an unlawful act not constituting felony murder
Criminal negligence — arises if D is grossly negligent
- E.g., D is texting while driving and hits and kills a pedestrian in a crosswalk
Commission of an unlawful act — a killing caused by an unlawful act may give rise to involuntary manslaughter
- Misdemeanors — a killing resulting from a misdemeanor will give rise to involuntary manslaughter if either:
- Act was inherently wrongful (i.e., malum in se), or
- Death was a foreseeable or natural consequence of the misdemeanor act (i.e., malum prohibitum)
- Felonies — any killing caused during the commission of a felony not giving rise to felony murder (see card 27) will be at least involuntary manslaughter
Note — if MBE questions simply state “manslaughter” without distinguishing between voluntary and involuntary manslaughter, both types must be considered
Crimes Against Property
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The taking and carrying away of another’s tangible personal property without consent (i.e., trespassory) and with the intent to permanently deprive the person of the property
Required elements:
- Taking — obtaining control or possession
- If D already has possession at the time of the taking, it is not larceny (but may give rise to embezzlement)
- Carrying away — the slightest movement will suffice
- Without consent — against victim’s free will (i.e., by trespass)
- The use of fraud or duress negates consent
- Note — this element distinguishes larceny from larceny by trick (see card 32)
- Intent to permanently deprive — must exist during taking
- Specific intent crime — not larceny if D takes property as security for a debt owed or believing it belongs to D
- Permanently = for an unreasonable period of time
- Continuing trespass — when one borrows property with the intent to return it, but later keeps it; larceny arises at the moment D decides not to return the property
Finding a lost item — larceny can arise if the true owner is known or ascertainable and D decides to keep the property (must be lost or misplaced; larceny cannot arise for abandoned property)
Fraudulent conversion of another’s personal property by one in lawful possession
Required elements:
- Fraudulent conversion — D uses another’s property beyond the scope of, or inconsistent with, D’s possessory rights
- By one in lawful possession — D must have lawful possession at the time of conversion
Distinguished from larceny — both involve obtaining property through misappropriation, but circumstances of the taking differ:
- Embezzlement = conversion of property in D’s rightful possession
- Larceny = taking property not in D’s possession
Special issues refuting embezzlement:
- Intent to restore — if D takes property with the intent to restore the exact property, no embezzlement has occurred
- Must be the exact same property; not even different monetary bills of equal value will suffice
- Claim of right — like larceny, embezzlement will not arise if the misappropriation is made under a claim of right to the property (i.e., D believes the property belongs to him)
False pretenses — obtaining title to another’s property using false statements of past or existing fact, with intent to defraud
- Required elements:
- Obtaining title — obtaining ownership, not mere possession
- By false statements — must be an intentional false statement
- Of past or existing fact — misrepresentation regarding a future event is not sufficient
- Intent to defraud — i.e., intent to steal
- Victim must be deceived or act in reliance on the false statement in passing title to D
Larceny by trick — obtaining possession of another’s personal property using false statements of past or existing fact
- Possession vs. ownership is the distinguishing factor:
- Larceny by trick — D acquires possession
- False pretenses — D acquires title
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Receiving possession and control of personal property known to have been illegally obtained, with the intent to permanently deprive the owner of her interest in it
Required elements:
- Receipt of possession and control
- Physical possession not required — D can have possession or control by designating the property’s location or arranging to sell it for the original thief
- Of stolen personal property
- Property must have been stolen when D receives it
- Known to have been illegally obtained by another
- D must know or have reason to know property is stolen
- With intent to permanently deprive the owner of his interest
Note — beware of “sting” situations: if police and the true property owner know of or arranged D’s receipt of property, it is not truly stolen
- D can be convicted of attempted receipt of stolen property if she intended to receive property, believing it to be stolen
Creating or altering a written document with purported legal significance to be false, with the intent to defraud
Required elements:
- Creating or altering
- E.g., drafting, adding, or deleting from a document’s contents
- Also includes offering a forged document as genuine even if D did not create the forged document
- A document with purported legal significance
- A document that carries legal value (e.g., a check or contract, but not a painting)
- To be false
- Modifying the document into something it is not; changing its legal significance, not just changing it to be inaccurate
- With intent to defraud
- Specific intent crime
- Note — actually defrauding somebody is not required; the mere intent to defraud is sufficient
Robbery — wrongful taking of another’s personal property from his person or presence by force or threat of injury, with the intent to permanently deprive
- Robbery = assault or battery + larceny
- Victim’s person or presence — interpreted broadly
- Force or threat of injury — a small force or threat will suffice
- Threat of injury must be to victim, a member of her family, or a person in her presence
- Victim must give up the property b/c she feels threatened or harmed
- Threats of future harm are insufficient
- Threat of injury must be to victim, a member of her family, or a person in her presence
- Larceny vs. robbery — robbery requires force or threats to obtain victim’s property, whereas larceny does not
- E.g., D commits larceny if he slips wallet from victim's pocket unnoticed, but D commits robbery if he pulls victim's wallet from victim's hand
Extortion — obtaining property through threats of future harm or exposing information
- Extortion vs. robbery — extortion does not require a taking from the victim’s person or presence
- Extortion involves threats of future, rather than immediate, harm
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Trespassory breaking and entering into the dwelling house of another at nighttime with the intent to commit a felony therein
Required elements:
- Breaking — can be actual or constructive; must be trespassory
- Actual — opening or enlarging (e.g., opening an unlocked door)
- Constructive — entry by threat, force, fraud, or duress
- Fraud negates any consent victim may have given
- Trespass required — entering with consent or through a wide open door is not a breaking
- Breaking not required under many modern statutes
- Entering — placing any portion of the body or the instrument used for the breaking inside the dwelling
- Dwelling = structure used for sleeping purposes
- Modern statutes expand to include non-dwelling structures
- Of another — ownership is irrelevant; occupancy will suffice
- At nighttime — common law requirement
- Not a required element under modern statutes
- With the intent to commit a felony therein
- Modern statutes include misdemeanor thefts
- Felony need not be completed; D must merely intend to commit a crime at the time of the breaking and entering
- Intent acquired after entering is insufficient
Note — on the MBE, apply modern rules unless otherwise instructed
The malicious burning of the dwelling house of another
Required elements:
- Malicious — with intent or extreme recklessness
- Burning — requires some damage to structure caused by fire
- Damage from smoke, water, or explosions is not sufficient at common law
- Dwelling house — structure where someone lives
- Common law requirement
- Note — On MBE it can be a non-residential structure
- Of another — another person’s house
- At common law, there can be no arson if you own the dwelling but do not reside there
Damages required — must be charring or something more
- Discoloration, blackening, or other lesser damage is insufficient
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4th Amendment
An arrest occurs when police take an individual into custody for purposes of criminal prosecution or interrogation
Probable cause is always required for any valid arrest
- Probable cause = trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is planning to commit a crime
Warrants are rarely required for arrests
Police generally do not need a warrant before arresting a person in a public place
- Exception — non-emergency home arrests require a warrant and reasonable belief suspect is at home
I.e., police must have an arrest warrant to arrest an individual in their home; police may only enter the home if they have reason to believe the suspect is in the home
Search warrant is required for police to execute an arrest of a suspect in a third-party’s home
- A warrant is not required for an emergency arrest occurring in the arrestee’s home
A governmental seizure of a person that is less than a full custodial arrest
Common govt. detentions:
- Stop & frisk (a.k.a. “Terry stop")
- Requires reasonable suspicion (see card 49)
- Automobile stop
- Requires reasonable suspicion (see card 40)
- Stationhouse detention
- Probable cause required to compel a person to enter a govt. location for fingerprinting, questioning, etc.
- Detention to obtain a search warrant
- Requires probable cause
- If police have probable cause to believe a suspect has contraband hidden in her home, they may prevent her from entering her home for a reasonable time while they obtain a search warrant
- Purpose must be to prevent destruction of evidence
- Detention of occupants of a premises
- If police have a valid warrant to search premises, they may detain occupants for duration of the proper search
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Automobile stop — reasonable suspicion required
- To stop or pull over a vehicle, police must have reasonable suspicion that a law has been violated
- Pretextual stops — ulterior motive for a stop is OK if police have probable cause of a traffic violation
Accompanying searches — police may search:
- Passengers and passenger compartment (but not the trunk) if officer reasonably believes weapons may be present
- Police can order passengers out of the vehicle
- Entire car may be searched if probable cause arises pursuant to the automobile search exception (see card 48)
- Note — automobile may also be searched incident to a lawful arrest (see card 45)
Police checkpoints — must relate to a vehicle-specific purpose
- Requirement — a police checkpoint/roadblock that stops cars without individualized suspicion (e.g., DUI checkpoints), must:
- Stop cars using a neutral, articulable standard (e.g., every fourth car); and
- Serve purposes related to automobiles and their mobility
- E.g., DUI checks relate to road safety, but drug checkpoints are insufficiently related to driving, and are thus unconstitutional
Govt. searches and seizures of evidence must be reasonable under the 4th Amend., which requires a valid search warrant, unless one of six exceptions applies (see below)
Determining the reasonableness of a search or seizure:
- Is there govt. conduct constituting a search or seizure?
- 4th Amend. only applies to govt. conduct (direct or authorized); does not protect against private conduct
Authorized conduct — private persons acting at the direction of govt. agents constitutes govt. conduct
- Does D have standing?
- D must have a reasonable expectation of privacy in the thing or place to be searched (see card 42)
- Is there a valid search warrant? (see card 43)
- If there is no valid search warrant, was there a valid exception to the search warrant requirement?
Exceptions to the search warrant requirement:
- Search incident to arrest
- Plain view search
- Automobile search
- Valid consent to search
- Exigent circumstances
- Stop & frisk
- See cards 45-50
4th Amend. only applies if a person has a reasonable expectation of privacy (REOP) regarding the thing or place searched and/or the items seized
- Standing to challenge a govt. search requires a REOP
- REOP is determined by the totality of the circumstances
No REOP for inherently public things
E.g., handwriting, voice, location, odors, public records, things viewable from public space, bank account records, smell of luggage
Areas outside the curtilage are unprotected by the 4th Amend.
- I.e., areas outside one’s home and outbuildings are subject to police search and seizure (e.g., garbage placed on street)
Automatic standing — REOP always exists if D either:
- Owns, has a right to possess, or lives in the premises to be searched, or
- Is an overnight guest of the premises to be searched
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Unless an exception applies, govt. must have a properly executed warrant to conduct a search
Requirements for a valid warrant:
- Based on probable cause — usually a police affidavit demonstrating probable cause that the search or seizure will produce evidence
- Affidavits — must contain facts showing probable cause
- May include information from anonymous sources
- If (1) there was a false statement, (2) affiant intentionally or recklessly included a false statement, and (3) false statement was material to finding probable cause, then warrant is invalid
- Affidavits — must contain facts showing probable cause
- Precise on its face — warrant must describe, with reasonable precision, the place to be searched and/or items to be seized
- Issued by a neutral and detached magistrate
Good faith exception — exclusionary rule does not apply if police act in good faith on an invalid search warrant (see card 55)
- Exceptions to good-faith reliance — police cannot rely on a defective warrant obtained in good faith if:
- Affidavit completely lacks probable cause (i.e., no reasonable police officer would have relied on it),
- Warrant is defective on its face,
- Police or govt. official lied or misled magistrate, or
- Magistrate has “wholly abandoned her judicial role”
See Card 44 - Execution of Search Warrants
Timing — search warrant must be executed without unreasonable delay after it is issued
Knock and announce requirement — police must knock and announce their purpose, then wait a reasonable time for admittance before entering on their own accord
- Exception — knock and announce is not required if officers have reasonable suspicion that announcing their presence would be dangerous, futile, or would inhibit the investigation
Scope of search — limited to what is reasonably necessary to discover items described in the warrant
- Police can detain people found on the searched premises
- But police cannot search detained persons unless they are specifically named in the warrant or a valid warrantless search exception exists
Valid Warrantless Searches
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Police may search a lawfully arrested person and his immediate surrounding area without a warrant
Requirements:
- Arrest must be lawful
- Search must be contemporaneous with the arrest
- Search must be limited to area within suspect’s reach or movement (i.e., where he could obtain weapons or destroy evidence)
Protective sweeps — police may sweep an area for officer safety or with reasonable belief that accomplices may be present
Inventory search — police may search arrestee’s belongings or seized property when jailing an arrested suspect
Automobiles — after arresting occupant, police may search the vehicle’s interior, including glove box, if at the time of the search:
- Arrestee is unsecured and may access the vehicle interior, or
- They reasonably believe evidence of the crime for which the arrest was made may be found in vehicle
- Police cannot search trunk without probable cause or consent
- Breathalyzer — a warrantless breathalyzer test is valid following a lawful arrest based on probable cause of drunk driving
Limitation: cell phones — police may not search digital information on a phone seized during an arrest without a warrant
Police may search from any place where they are legitimately present when viewing (i.e., when conducting the search)
Seizure based on plain view — police may seize evidence in plain view without a warrant if:
- Police are legitimately on the premises from which they viewed the evidence to be seized;
- Criminal activity or contraband is immediately apparent; and
- Police have probable cause to believe that plainly viewed evidence is contraband or relates to a crime
Scope of plain view searches — includes anything viewable from land or public property, even if only viewable through binoculars
- Plain smell — included within plain view
- If a smell gives rise to probable cause from a place of legitimate police presence, they can search that item
Limitations — police cannot use technology not generally available to the public to view evidence that may constitute a plain view search (e.g., infrared scanners that can view through walls)
- Note — use of drones for plain view searches is unsettled law and thus unlikely to appear on the MBE
With valid consent, police may search anything
Requirements for valid consent:
- Voluntarily and intelligently made
- Police cannot falsely claim legal cause to search
- Police have no obligation to inform suspects that they have a right to refuse consent
- Person giving consent has authority to consent
- Authority to consent must be reasonably apparent
Scope of consent — can be limited by consenting party
- Violation of scope renders the entire search non-consenting
Third-party consent — allowed if there is authority to consent
- Where multiple people have property rights (e.g., ownership, authorized use, occupancy), any single one can consent to the search of any area where they have authority to consent
- A resident’s right to consent trumps a non-resident
- E.g., if both a tenant and landlord are present, the tenant’s refusal trumps the landlord’s consent
- Scope of consent is dictated by the person present with highest authority to consent
- Refusal trumps consent — no consent if two present persons with equal right to possession disagree on consent
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If probable cause exists, police may search an entire vehicle (including the trunk) and containers or compartments inside that may contain the evidence they are searching for
Requirements:
- Police must have probable cause to search the vehicle; and
- Probable cause must arise before the search begins
Scope of permissible search:
- Police can search entire vehicle and all containers within the vehicle that might contain the object for which they are searching
- E.g., police may open packages or luggage that might contain evidence relating to the reason they searched the vehicle
- Police may search passengers and their belongings
- Vehicle parked within curtilage of one's home (e.g., driveway) requires search warrant
Police may detain a person for an investigative purpose if they have reasonable suspicion of criminal activity
Allowable scope of stop & frisk:
- Length — detention must be no longer than necessary to verify the suspicion
- Frisk — if police have reasonable suspicion the person is armed or dangerous, they may frisk for weapons
- Plain feel — if police have reasonable belief during the frisk that what they feel is a weapon or contraband, they may seize the suspected item
- Officers cannot manipulate the item to develop reasonable belief — it must be plain touch only
- Evidence validly seized is admissible
- Plain feel — if police have reasonable belief during the frisk that what they feel is a weapon or contraband, they may seize the suspected item
Stop vs. arrest — a stop is a brief detention, less than an arrest
- But police may develop probable cause to arrest based on anything occurring or discovered during the stop and/or frisk
Note — stop & frisk is often called a “Terry stop"
If exigent circumstances exist, police can search or seize evidence without a warrant
- Hot pursuit, evanescent evidence, and emergencies are forms of exigent circumstances justifying a warrantless search or seizure
Hot pursuit — while actively pursuing a fleeing felon, police can search for anything relating to the pursuit or can search for their own protection
- Permissible scope is as broad as reasonably necessary to prevent suspect from escaping or resisting
- Police can enter into a private dwelling after attempting arrest in a public place if they have probable cause
Evanescent evidence — police can search or seize evidence that could disappear if police were required to secure a warrant
- E.g., drugs that may be discarded, DNA evidence that may not last
Reasonableness judged by totality of the circumstances
Emergency — warrantless searches are justified for emergencies that threaten health or safety if not immediately acted upon
E.g., police see someone injured or threatened with injury, bomb threats, need to find source of a food or drug contamination
Whether an emergency exists is viewed objectively
Note — a valid plain view search can arise from any of the above warrantless searches
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Other 4th Amendment Searches
Administrative searches — govt. agencies may conduct routine searches or inspections of highly-regulated businesses or industries
- E.g., building code inspection, inspections for food safety, airline passenger searches
- A warrant is required for inspections of private residences or commercial buildings
- Requires less particularity than standard warrants
- A general and neutral enforcement plan for the searches will suffice to validate the warrant
Public school searches — to conduct a search, school officials must have reasonable grounds to believe the search is necessary
- Less burdensome standard than probable cause
- School search is reasonable if:
- Search offers a moderate chance of finding evidence of wrongdoing;
- Procedure for searching is reasonably related to the objectives of the search; and
- Search is not excessively intrusive
- Drug tests — random urinalysis is permissible for public school students participating in extracurricular activities
Border searches
- At borders, officials may conduct routine searches of persons and their effects (including vehicles) without a warrant, probable cause, or reasonable suspicion
- Border = any place where one can arrive in the U.S. from a foreign country (e.g., there is a “border” at Denver International Airport)
Detentions — reasonable suspicion required
- Officials may detain a traveler at the border if they have reasonable suspicion she is smuggling contraband
International mail
- Officials can open and inspect international mail if they have reasonable suspicion it contains contraband
Immigration
- Officials may raid a business to determine citizenship status of its employees
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Electronic surveillance (e.g., wiretapping, eavesdropping) that violates a reasonable expectation of privacy constitutes a search under the 4th Amend. and requires a warrant
Warrant requirements for electronic surveillance:
- Probable cause that a specific crime is being or has been committed
- Warrant must name suspects subject to surveillance
- Warrant must describe with particularity the subject of conversations that can be surveilled
- Surveillance must be limited to short periods of time
- Surveillance must terminate when desired information is obtained and must be turned over to the court
Note — all speakers assume the risk that the person to whom they are speaking is wired and/or recording the conversation
- Therefore, police do not need a warrant if they get someone to wear a wire and talk to the suspect
- A speaker who makes no attempt to keep a conversation private has no reasonable expectation or privacy
Exclusionary Rule
Prohibits the introduction of evidence obtained in violation of D’s constitutional rights in a criminal trial
Fruit of the poisonous tree doctrine — evidence derived or obtained from illegal govt. conduct is excludable against D
- Arises when illegal police action leads to evidence
- Exceptions — illegally obtained evidence is admissible if govt. can “break the chain” between the illegal govt. conduct and the seized evidence; common ways to break the chain:
- Independent source — govt. had an independent source for obtaining the evidence, i.e., independent from the original illegality
- Inevitable discovery — govt. would have discovered illegally derived evidence even without illegal conduct
- Attenuation — where evidence challenged is too remote and attenuated from unlawful search or seizure
- Includes intervening acts of free will by D (e.g., after initial illegality, D consciously leads police to the evidence)
Remedy for exclusionary rule violation — harmless error review
- For admission of illegally-seized evidence to be upheld on appeal, govt. must show that it was harmless beyond a reasonable doubt
See Card 55 - Limitations on the Exclusionary Rule
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The exclusionary rule applies only to searches in violation of a fed. statute or the U.S. Constitution
Exclusionary rule does not apply to:
- Grand jury proceedings, civil proceedings, parole hearings, or administrative cases
- Violations of the “knock and announce rule” in executing search warrants
- Evidence derived from statements obtained in violation of Miranda
Excluded evidence and impeachment — confessions resulting from Miranda violations or illegally obtained evidence may be used to impeach D’s testimony at trial (but only D’s testimony)
Govt. good-faith defenses to the exclusionary rule
- Illegally obtained evidence will not be excluded if the govt. demonstrates that it relied in good faith on either:
- A reasonably relied upon but defective search warrant, or
- Evidence seized via an invalid warrant obtained in good faith will be excluded in some situations (see card 43)
- A judicial opinion or statute that was later changed or declared invalid
- A reasonably relied upon but defective search warrant, or
See Card 54 - Exclusionary Rule
5th Amendment
Any person in any proceeding (civil or criminal) may refuse to answer a question if her response might incriminate herself
Privilege only available for compelled testimonial or communicative evidence:
- Testimonial = verbal or otherwise communicative evidence
- Lineups and physical evidence — not testimonial
- Compelled = elicited or induced
- Evidence produced from D’s free will is not compelled (e.g., D’s diary is not compelled)
- Lie detector tests, custodial interrogations, etc. are compelled and 5th Amend. privilege will apply
Does not apply to companies — a legal entity (e.g., corporation, partnership, LLC) has no 5th Amend. privilege against self-incrimination
Exceptions — privilege does not apply if:
- Grant of immunity — govt. can grant immunity from prosecution for self-incriminating testimony
- Incrimination is not possible — e.g., statute of limitations has run
- Extinguished by waiver — D waives the privilege
Note — at trial, prosecution cannot comment on D’s silence or failure to testify
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Those in custody must be informed of Miranda rights prior to interrogation; otherwise subsequent statements are inadmissible
Custodial interrogation required — Miranda only applies when accused is in custody and interrogated
- Custody — accused is not free to leave
- Interrogation — statements by police likely to elicit incriminating responses
- Unsolicited statements are not protected
- Note — routine questioning (e.g., during booking or a probation interview) is not considered interrogation
- Public safety exception — police may interrogate suspects without giving Miranda warnings if necessary for public safety (e.g., D has info about a bomb that could go off in public)
Miranda warnings — police must inform accused that he has:
- A right to remain silent;
- Anything said can be used against him;
- He has a right to the presence of an attorney; and
- One will be appointed if he cannot afford one
- Substantial compliance in reading warnings is sufficient
- Failure to give warnings implicates 5th Amend., not 6th Amend.
See Card 58 - Invoking & Waiving Miranda Rights
An accused may terminate an interrogation at any time by invoking his right to remain silent or by requesting counsel
Invoking right to silence — police must cease all questions
- Only the accused can re-initiate dialogue
- Police may resume questions after a significant period concerning unrelated crimes, but D must be re-warned of Miranda rights
Invoking 5th Amend. right to counsel — once accused requests counsel unambiguously, police must cease all questions on any topic
- Note — different than 6th Amend. right to counsel, which is offense-specific and only attaches once charges are filed (see card 61)
- If accused initiates communication, interrogation is allowed
Waiving Miranda rights — valid Miranda waiver must be (1) knowingly and (2) voluntarily made
- Burden is on prosecution to prove this by preponderance of the evidence
14th Amend. & confessions — to be admissible, the 14th Amend. Due Process Clause requires that confessions be voluntary
- Voluntariness is assessed based on totality of circumstances, including suspect’s age, mental/physical condition, education, and the duration, manner, and setting of the interrogation
A D cannot be retried for the same offense once jeopardy has attached
Arises when D is prosecuted with one crime and tried, then charged again based on the same offense
Same offense — offenses are different if conviction for one offense requires proof of an element not included in the other offense
- Lesser included offense — once jeopardy attaches for the greater offense, D cannot be charged for a lesser included offense
- Examples:
- Same offense — e.g., first offense requires proof of A, B, & C; second offense requires proof of A & B; second offense is barred
- Different offense — e.g., first offense requires proof of A & B; second offense requires proof of A, C, & D
- Exceptions:
- New evidence for greater offense becomes available
- D can be tried for battery and subsequently tried for homicide if the victim later dies from the battery
When jeopardy attaches — start of trial generally required
- E.g., does not attach for charges or grand jury proceedings alone
- Jury trial — attaches once jury is impanelled and sworn in
- Bench trial — attaches once first witness is sworn in
- Pleas — attaches once court accepts a plea agreement
See Card 60 - Double Jeopardy: Exceptions Permitting Retrial
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Once jeopardy has attached, retrial is still allowed if either:
- Hung jury
- Mistrial due to manifest necessity
D may be retried when there is a manifest necessity to abort the original trial (e.g., D is too ill to continue) or if it is discontinued at D’s request on grounds not constituting an acquittal
- Retrial after a successful appeal by D
- D can be retried unless the basis for reversal was insufficient evidence to support a guilty verdict
- D breaches a plea bargain agreement
- Separate sovereigns
- D can be tried for the same crime in different states
- D can be tried for the same crime in fed. and state court
6th Amendment Right to Counsel
Once 6th Amend. right to counsel attaches, police may not elicit incriminating statements outside the presence of D’s counsel
- Application — right attaches once charges have been filed
- Applies at all critical stages of a criminal prosecution after formal proceedings have begun
- Scope — right is offense-specific; police can question D about any other crime without violating D’s 6th Amend. rights
5th vs. 6th Amend. right to counsel:
- 5th Amend. right to counsel
- Not automatic— accused must invoke the right by unambiguously requesting presence of counsel
- Applies to any custodial interrogation
- Not offense-specific — once invoked, police must stop questioning on all subjects
- Not automatic— accused must invoke the right by unambiguously requesting presence of counsel
- 6th Amend. right to counsel
- Automatic— attaches once charges have been filed and applies at all subsequent critical stages
- Offense-specific — Police can question D about any other crimes
Right to effective counsel — included in 6th Amend. right to counsel
- To establish ineffective assistance of counsel on appeal, D must show there is a reasonable probability that his trial’s outcome would have been different absent counsel’s deficient performance
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Right to counsel — a suspect has a right to counsel at any post-charge, in-person lineup or showup
- Does not apply to non-live identification procedures (e.g., photographic lineups, fingerprinting)
- Lineup — witness is shown several possible suspects
- Showup — witness is asked to identify a single suspect
Due process considerations — D can attack pretrial identification procedures as a denial of due process rights if:
- Identification is unnecessarily suggestive; and
- There is a substantial likelihood of misidentification
- Determined under the totality of the circumstances
- Tough standard; must be extremely suggestive
- E.g., perpetrator believed to be male and suspect is the only male in lineup; would likely violate due process
Remedy for violation
- D may move to suppress any subsequent in-trial identifications made by the witness
- Note — remedy for a violation is rare b/c govt. can often prove the identifying witness has an independent source of identification to overcome the exclusionary rule
Trial Rights & Procedures
Grand juries are required in fed. court under the 5th Amend. and are used to determine whether there is sufficient probable cause to bring charges against a suspect
- Prosecutors present their cases to the grand jury, which votes to issue an indictment if they find probable cause
Grand jury proceedings
- Secret
- Suspect has no right to confront witnesses or attend proceedings
- Witnesses are not entitled to Miranda warnings
- Witnesses may not challenge a subpoena
- Witnesses do not have right to counsel inside a grand jury
- 5th Amend. privilege — witnesses can refuse to testify for fear of self-incrimination
- Immunity — prosecutors can grant immunity in some form (i.e., use or derivative-use immunity) in exchange for potentially incriminating testimony
- Exclusionary rule does not apply
- I.e., an indictment can be based on evidence that would be inadmissible at trial
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Pretrial (preliminary) hearing — may be required to determine if there is probable cause to detain the suspect
- Required if:
D is incarcerated or released on bail (i.e., does not apply if D is released on sole condition that she appear for trial)
There has been no determination of probable cause
- E.g., not required if arrest was made with warrant
- Must occur within 48 hours of detention, if required
Bail — cannot be higher than necessary to ensure D will appear at trial
- Detention without bail is constitutional but a decision to refuse bail is immediately appealable; arbitrary denial of bail violates due process
- For denial of bail, govt. must show either:
- D poses a flight risk, or
- D poses a danger to the community
Right to speedy trial — 6th Amend. protects D from unreasonable delay between the time charges are filed and the beginning of trial
- Right attaches once D has been arrested or charged
- Violations — determined by the totality of the circumstances
- Factors: length of delay and reason for delay (e.g., did D cause delay?), if delay has prejudiced D, whether D asserted right
- Remedy for violation = dismissal of case with prejudice
A D may enter a plea bargain, but doing so waives his 6th Amend. right to a jury trial (see card 67)
Requirements for valid plea bargain — judge must:
- Determine plea is voluntary and intelligently made; and
- Ensure that D understands:
- Nature of the charge and its critical elements
- Maximum authorized penalty and any mandatory sentence
- That D has a right to plead not guilty
- That D is waiving his right to a jury trial
Appellate courts will not disturb valid pleas unless:
- Plea was made involuntarily (e.g.., due to a misunderstanding),
- The court that took the plea lacked jurisdiction,
- D had ineffective assistance of counsel, or
- The prosecutor failed to honor the plea
Contract theory of plea bargaining
- Pleas will be enforced against both parties, but the judge is not required to accept or adhere to the agreement
- The prosecutor can threaten D with a more serious crime than he was initially charged with and even follow through on such threats if D does not accept plea
Govt. has a duty to disclose material exculpatory evidence to D
- Failure to disclose violates due process, whether intentional or not
- Violation is grounds for reversing conviction
Establishing violation — D must show:
- Evidence impeaches or is exculpatory;
- Evidence is favorable to D; and
- Prejudice has resulted — will be found if there is a reasonable probability the result of the case would have been different if the undisclosed evidence had been presented at trial
Applicability of duty to disclose:
- Applies to evidence relevant to prosecution’s case in chief
- Duty does not apply to post-conviction proceedings
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6th Amend. provides right to a jury trial for all “serious offenses”
D has a right to be present for all critical stages (e.g., jury selction)
- Serious offense = potential imprisonment for more than 6 months
Jury size and selection requirements:
- Jury size and unanimity — jury must contain at least 6 jurors
- Unanimous verdict is required for all serious offenses
- Juror composition requirements — the jury pool (“venire”) must be a representative cross-section of the community
- The chosen jury does not have to be representative
- Right to an impartial jury — D can question potential jurors on possible prejudices if relevant to the case (e.g., racial biases, feelings on the death penalty)
Jurors can be struck for cause if their views would prevent or substantially impair them from performing their duties
- Peremptory challenges — parties may exercise peremptory challenges for any reason
- Exception — cannot be used to exclude jurors on account of race or gender (violates equal protection)
Judge cannot direct a verdict of guilt — deprives D of his right to a jury trial (but judge may direct a verdict of acquittal)
6th Amend. gives D the right to confront adverse witnesses
Confrontation — D has a right to have adverse witnesses testify in-person and subject to cross-examination
- In-person testimony not required if:
- Exclusion is necessary for public policy; and
- Reliability of the testimony is otherwise assured
- D can be removed from court for disruptive behavior
Co-defendant confessions — a co-D’s confession implicating D is inadmissible against D at a joint jury trial (OK at bench trial)
- Exceptions — confession of a co-D is admissible if either:
- Confessing co-D testifies subject to cross-examination,
- Ds have separate trials,
- Confession is redacted so that all portions referring to the co-D are eliminated, or
- Co-D’s confession is used to rebut D’s claim that his confession was obtained coercively
Hearsay — prior testimonial statements of unavailable witnesses are only admissible if D had the opportunity to cross-examine the declarant when the statement was made
- See Evidence section on Hearsay
8th Amendment Cruel & Unusual Punishment
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The 8th Amend. prohibits cruel and unusual punishment, which bars punishment that is grossly disproportionate to the offense
- Death penalty is permitted under 8th Amend. prohibition on cruel and unusual punishment
Grossly disproportionate — e.g., life sentence for minor vandalism
- Life without parole is not permissible for juveniles convicted of non-homicide crimes
Death penalty — may only be used at sentencing if the victim dies as a result of D’s crime
- Requirements:
- Statute allowing death penalty must not be unconstitutionally vague
- Jury must be allowed to consider mitigating circumstances
- E.g., D’s abusive childhood, mental impairment, etc.
- There must be at least one “aggravating circumstance” (e.g., prior convictions) supporting the sentence
- Limitations — death penalty cannot be imposed if either:
- D was under 18 years old when the crime was committed,
- D is mentally disabled,
- D is insane at the time of execution, or
- The conviction was for felony murder; and either:
- D was not a major participant, or
- D did not act with depraved indifference to human life
Due Process: Burden and Sufficiency Requirements
The 14th Amend. Due Process Clause requires that the govt. prove guilt beyond a reasonable doubt in all criminal cases
Proving guilt beyond a reasonable doubt — prosecution must prove all elements of every crime charged beyond a reasonable doubt
- Burden is always on the prosecution
- This cannot be changed
- E.g., a state law shifting burden onto D to prove he is not guilty is unconstitutional
- D has burden of proving any affirmative defenses he raises
State laws vary on what burden D must satisfy (i.e., there is no single constitutional requirement)
A conviction is valid unless no rational judge or jury, viewing evidence in the light most favorable to prosecution, would convict D
- Note — know these requirements; burden of proof questions often appear on the MBE
Jury instructions & mandatory presumptions — judge cannot give mandatory jury instructions on elements of a charged crime
- Requiring jury to make a presumption regarding an element of the charged crime violates due process
- E.g., in murder trial where body was never found, cannot instruct jury to presume that a missing person is presumed dead
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