PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

I. JURIS/GENERAL MATTERS

A. Juris: State has juris if legal situs (CONDUCT or RESULT) (Omission where act should have been performed)

B. Merger: Generally NO merger
-> solicitation & attempt DO MERGE (if did it! NOT if difft victims)
-> conspiracy DOES NOT MERGE (conspiring & doing)

II. ELEMENTS OF CRIME (concurrence of Act + Mental State)

A. Physical Act
1. Any physical act but NOT reflex, unconscious/asleep, pushed
2. Omitting (failing to act): NO DUTY TO RESCUE, but if:
a. By statute (tax return)
b. K (nurse/lifeguard)
c. Relationship (spouses; parent/child)
d. Voluntarily assumed (can't back out)
e. You created the peril

B. Mental State
1. Common Law 4 Types: specific intent, malice, gen'l intent, strict
liability
a. Specific Intent
(1) Extra defenses vol. intox & any mistake of fact
(2) Crimes: SAC (solicitation, attempt, conspiracy), 1st degree
murder, assault, larceny, robbery, burglary, forgery, false pretenses,
embezzlemt
b. Malice (murder & arson)
c. General Intent (all other esp. RAPE & BATTERY)
-> Transferred intent (homicide, battery, arson) difft person
d. Strict Liability (no intent)
-> No adverbs in statute; no defenses negating intent (insanity &
invol. intox OK)
2. Model Penal Code Fault (don't need for MBE?)
a. Purposely/Knowingly (for Specific Intent)
Purposely: Engage in conduct no matter how unlikely to produce
the result; if does it's purposely
Knowingly: Engage in conduct overwhelmingly likely to produce a
result, even though I didn't care about the result
b. Recklessly (hit kid speeding to work)
c. Criminal Negligence (fell asleep at wheel)

C. Concurrence of Physical Act & Mental State

III. ACCOMPLICE LIABILITY

A. One who actively aids, abets or counsels crime (not just standing
around watching)
-> If couldn't be convicted as principal, can be an accomplice (woman
abetting rape)

B. Scope of Liability: THE CRIME ITSELF + all other foreseeable crimes

IV. INCHOATE OFFENSES (SAC; prep for serious offense)

A. Solicitation: asking someone to commit a crime
1. If agree to it's conspiracy & then solicitation merges

B. Attempt: act done w/ specific intent to commit a crime but falls
short for some reason
1. Specific intent to commit crime + substan'l step in direction of
commission
2. No attempt for negligent crimes
3. Defenses to Attempt
a. IMPOSSIBILITY no defense Except Legal Impossibility (didn't know
was a crime)

C. Conspiracy
1. Combination or agreement bet. 2+ people to accomplish some
criminal or other unlawful purpose
a. Agreement + intent to agree + intent to pursue unlawful
objective
b. Agreement can be tacit (no written/oral)
c. Can be part of w/o knowing others or details
d. MAJ: some overt act; minimal; mere preparation; MIN: no act
needed (common law)
2. No Merger
3. Scope of Liability: liable for all crimes of other conspirators if
committed in furtherance of the conspiracy and were foreseeable
4. Defenses
a. IMPOSSIBILITY No defense (NOTE: legal impossibility is
irrelevant b/c has to be unlawful purpose to begin w/)
b. Withdrawal: not for the conspiracy itself but can be for the
crime intended or subsequent ones

V. RESPONSIBILITY & CRIMINAL CAPACITY

A. Insanity
1. M'Naghten: disease of mind caused defect of reason such that D
lacked the ability at the time of actions to know the wrongfulness of
his actions or understand nature & quality of his acts (cognitive
capacity)
a. If delusion (false belief) could D have done the crime if his
beliefs were true?
b. Moral "rightness" no good unless lost capacity to recognize
society sees as wrong
c. Inability to control yourself is no defense
2. Irresistible Impulse Test: B/c of mental illness couldn't control
actions or conform conduct to law (suddenness NOT required) (volitional
capacity)
3. Durham Test: Conduct was product of the mental illness; wouldn't
have been committed but for the disease
4. ALI/Model Penal Code (M'Naghten + irresistible impulse)
Due to mental disease or defect lacked substantial capacity to
appreciate wrongfulness of his conduct or conform his conduct to
requirements of law

B. Intoxication (voluntary - addicts; involuntary)
1. Involuntary defense to ALL crimes
2. Voluntary (specific intent only)

C. Infancy (*usually wrong as an answer)
1. Common Law: PHYSICAL age at time of crime governs
2. Common Law Presumptions:
a. Under 7 (conclusive presumption no criminal liability)
b. Under 14 (conclusive presumed incap. of rape; rebuttable
presumption not capable of knowing wrongfulness of acts -- clear proof)
c. Over 14 (treated as adult)

VI. EXCULPATION PRINCIPLES

A. Justification Defenses
1. Self-Defense
a. Non-deadly force (anytime reas. believes about to be used on
him)
b. Deadly Force (MAJ: anytime reas. believes deadly force about to
be used on him) (MIN: retreat if safe except home, rape/robbery, police
officer)
c. Aggressor Using Self-Defense (rare!) (must communicate his
w/draw to original victim)
2. Defense of Others
OK to use whatever force reas. appeared could have used themselves,
even if ACTUALLY NONE) (generally no special relationship to person
needed)
3. Defense of Property: if no burglary can never use deadly force
4. Duress & Necessity (for all crimes EXCEPT HOMICIDE)
a. Duress: imminent human threat death/bodily harm you or others
b. Necessity: D reas. believed (OBJECTV) b/c of pressure from
natural forces, conduct nec'y to protect greater society harm (D can't
create the situation though)

B. Other Defenses
1. Mistake of Fact: must negate the state of mind for the crime
(strict liab. NEVER; specific ANY; others ANY REAS. MISTAKE)
2. Mistake of Law: generally NO defense didn't know criminal, even if
reas.
a. ATTEMPT allows legal impossibility (not a crime) as defense
b. Might be OK if crime requires some knowledge of some law
(selling gun to known convicted felon)
3. Consent Defense: generally must negate element of the crime; show
voluntarily & freely given, capable of consenting & no fraud in
obtaining
4. Entrapment: only if crim. design originated w/ officer and D in no
way predisposed to commit crime

VII. OFFENSES AGAINST THE PERSON

A. Assault & Battery (misdemeanor)
1. Battery (gen'l intent): unlawful application of force to person of
another resulting in bodily injury or offensive touching
a. Force need not be direct (poison drink) & intent not required
(crim. neglig. OK)
b. Aggravated Battery if deadly weapon, woman, child, cop, serious
bodily harm involved
2. Assault (2 theories)
a. As an attempted battery (unlawful attempt to injure + present
ability; specific intent needed)
b. Assault as a threat (intends to & commits some act, not mere
words, putting in fear of receiving bodily injury; general intent)

B. Homicide (make sure human)
1. Murder (today 2d degree; if 1st can negate specific intent)
a. Unlawful killing of human being w/ malice aforethought
b. Malice (at common law):
(1) intent to kill (2) intent to do serious bodily harm (3)
abandoned & malignant heart (depraved heart) (reckless indiff. to high
risk to life, int'l act substantially likely to result in death/serious
bodily harm) (4) felony murder
2. Voluntary Manslaughter (provocation/passion)
a. Intent'l killing done due to adequate provocation
b. Passion to ord. person that would cause loss of self-control, D
was provoked, insufft cooling period & death results
3. Involuntary Manslaughter
a. Criminal Negligence (fall asleep) tort neglig.
b. Misdemeanor manslaughter (kill during misdemeanor or non BARRK)
4. Statutory Modifications: degrees
5. Defenses to FELONY-MURDER
a. Defense to underlying felony
b. Deaths not foreseeable
c. Deaths after pt of temporary safety
d. Death of co-felon by victim resistance (or cop or bystander) *if
misses co-felon you are liable
6. Causation (also for ALL crimes)
a. Consequences: D responsible for all natural & probable results
of conduct, though didn't anticipate manner would occur
(1) must be cause in fact & legal cause
(a) cause in fact is wouldn't occur but for D's act
(b) legal cause (natural & prob. consequence, even though
precise manner unanticipated)
(2) Homicide must result in death w/in year + 1 day
b. Intervening Acts
Superseding factor (not liab. acts of nature)
c. Hasten inevitable result: still liable
-> Simultaneous where each could be cause; BOTH liable as
independently sufficient cause
7. Analysis for Homicide
a. Malice aforethought state of mind?
-> If statute, can we to 1st degree?
b. If malice, can we reduce to voluntary manslaughter?
c. If no malice, is there involuntary manslaughter?
d. Is there adequate causation (year + day; factual cause "but
for"; legal/prox. cause)

C. False Imprisonment: unlawful confinement of person w/o valid consent
(not confinement if alternative routes)
1. Consent freely w/ capacity not coercion, threats, deception is
valid (Incapacity if mental illness, retardation, youth)

D. Kidnapping: confinement of person w/o valid consent w/ some movement
of person or secret place concealment
1. Common Law: forcible abduction from own country & send to another
2. Aggravated Kidnapping (other crimes, ransom, rape)

VIII. SEX OFFENSES

A. Rape: unlawful carnal knowledge of woman by man not H w/o effective
consent (slightest penetration completes)
1. No consent by force/threat/incapacity (intox, unconscious, mental
condition)
2. Fraud OK, unless fraud that act not sexual intercourse

B. Statutory Rape: only defenses voluntary intox & insanity; below age
can't consent (unless no other answer)

IX. PROPERTY OFFENSES

A. Larceny: trespassory taking & carrying away of personal property of
another w/ intent to permanently deprive the person of his interest
1. Consent by fear/fraud not valid (larceny by trick)
2. Intent to deprive owner must exist at time of taking
3. Continuing Trespass: wrongful taking/later intent to steal
4. Defenses to Larceny (ANY mistake of FACT; vol. intox.)
a. Mistake of law NO good
b. If believe property yours & entitled to it IS good

B. Embezzlement: fraudulent conversion of property of another by person
in lawful POSSESSION (NOT custody alone)
1. No taking or carry away needed
2. Conversion is anything inconsistent w/ reason has it
3. Requires fraudulent intent (returning exact same property or
converted believing valid claim of right is NOT fraudulent intent)

C. False Pretenses: obtaining title to property of another by intent'l
or knowing false statement of past or existing fact, w/ intent to
defraud other
-> NOT by false promise to do something in future
-> Intent'l or knowing false statement must be why got propty

D. Robbery (assault + larceny): taking of personal property of another
from their person or presence by force or intimidation, w/ intent to
permanently deprive them of it
-> Smallest force OK; imminent not future harm; aggravated robbery
(deadly weapon)

E. Extortion (blackmail): obtaining property from another by
oral/written threats (usually to harm you/others)
-> Future harm OK; don't have to take anything from person
-> Common Law: corrupt fee collection by officer under color of
office

F. Receiving Stolen Property: receiving poss'n & control of "stolen"
personal property known gotten by another person by criminal offense, w/
intent to permanently deprive owner's interest

X. OFFENSES AGAINST HABITATION

A. Burglary: breaking & entering of dwelling house of another at night
w/ intent to commit felony therein
-> breaking constructive/actual however slight; any body part is
"entry"; owner can burglarize rental property; felony intent at time of
breaking & entering

B. Arson: malicious burning of dwelling house of another
-> Burning material is wasting of fiber of bldg, NOT charring; owner
could burn rental property
-> Malice means burning can't be accidental, but doesn't have to be
ill will either, just intent or knowledge would burn or reckless
disregard of obvious risk it would burn

CRIMINAL PROCEDURE

I. CONSTITUTIONAL RESTRAINTS ON CRIMINAL PROCEDURE

A. Bill of Rights binding on states via 14th Am Due Process Clause

B. Exceptions:
5th Am Rt to Grand Jury Indictmt (state can use charge by info)
8th Am Rt to bail (own version in state Constn)

II. EXCLUSIONARY RULE (chipping away)
Victim of illegal search or coerced confession can have its product
excluded

A. Limitations on Exclusion Under the Rule
1. Doesn't apply to Grand Jury Conduct
2. Not available in civil proceedings
3. Search didn't violate Fed Constn/Statute (vs. agency rule)
4. Won't exclude if cops relied in good faith on:
a. Case later overturned
b. Statute/ordinance later unconstn'l
c. Defective Search Warrant, EXCEPT:
(1) Warrant affdvt clearly lacks probable cause to a reas.
officer (states "have it on good info")
(2) Warrant invalid on face (lacks particularity)
(3) Affiant lied/mislead magistrate
(4) Magistrate wholly abandoned judicial role
5. Voluntary confessions, though inadm. b/c no Miranda warnings, can
be used to impeach & any evidence from illegal search can be used to
impeach D

B. Expansions on Exclusionary Rule
1. Fruit of Poisonous Tree: evid. via improprr evid. out too
2. But can be used if:
a. Independent Source for Derived Evidence
b. Inevitable discovery
c. D's Intervening Acts of Free Will (illegal arrest, later comes
in & voluntarily confesses)

III. 4th AM (persons should be free from unreas. search & seizure)

A. Arrests
1. Common law W'less arrests by cop: misdemeanor in presence; felony
if reas. grounds to believe committed & this person did it
2. W generally not required for public place; required for hom arrest
unless emergency
3. FULL probable cause to do station Q or prints

B. Evidence Search & Seizure
1. Analysis Model
(a) Govt conduct?
(b) Reas. expectation of privacy? (not if lack standing to object
or item held out to public)
(c) Did they have search W?
(d) If so, was it valid?
(e) If not, is there a good faith defense?
(f) If no W, is search squarely w/in 1 of the 6 exceptions?
2. Govt Conduct: publicly paid police; citizen at direction;
deputized private cops
3. D Must have Reas. Expectation of Privacy
a. Standing to Object to Search (of BODY as well)
(1) Owners, residers, overnite guests automatic standing to
object to search
(2) Owner of seized property & persons there when search occurs
may have standing (case-by-case of reas. expectation BUT MERE CAR
PASSENGER - NO!)
b. Item is of Public Nature (no reas. privacy expectn)
-> Voice, handwriting, car paint, visible from plane, open field,
odors
-> Can seize w/o implicating 4th Am at all
IF NO GOVT CONDUCT OR NO REAS. PRIVACY EXPECTATN, NO 4TH AM VIOLATN
4. Valid Search Warrants
a. Probable Cause: credible H is OK (informants); state reliability
& credibility but even anonymous if corroborated is OK
b. Precise on face: particular place search/thing to seize
c. Issued by Neutral/Detached Magistrate: detached from law
enforcement
d. Execution of Warrant
(1) If W valid can detain persons on premises while executing
(2) Can't search/frisk occupants w/o probable cause to arrest (W
for the place)
IF INVALID WARRANT, CHECK FOR EXCEPTIONS. WHAT ABOUT NO WARRANT?
5. 6 Exceptions to Warrant Requirement
-> Search incident to lawful arrest, automobiles, plan view,
consent, stop & frisk, hot pursuit
a. Search incident to lawful arrest
(1) Must be lawful, anytime taken into custody can do (no fear
needed); contemporaneous time & place w/ arrest; wingspan (arm reach to
destroy evidence or get weapon)
(2) If lawful car arrest wingspan entire interior and things
there
b. Automobile Exception
(1) Must have probable cause car has fruits/ instrumentalities of
crime (same level as for W)
(2) Since mobile & lesser privacy expectation no W
(3) Can search entire car including containers/trunk that might
reas. contain the item
(4) Probable cause as to car can arise after stopped but b/4 any
search (plain view indicia)
c. Plain View: if legitimately there & sees in plan view (chain
fence doesn't destroy open field character)
d. Consent
(1) Direct (voluntary & intelligent)
(a) Can't say have W when don't or if W defective, NO Consent
(b) Don't have to inform you of rt NOT to consent
(2) 3P Consent/Authority: 2+ occupy or rt to use can give binding
consent
e. Stop & Frisk (investigative detention)
(1) Reasonable Suspicion (< probable cause)
(2) Can stop you & if believe armed & dangerous frisk you (if
felt like weapon admissible against you)
f. Hot Pursuit & Evanescent Evidence
(1) Evanescent might go away by W time (fingernail scrape; blood
sample drunk driving)
(2) Must be in real hot pursuit of fleeing felon (gen'l 15 min.)
and can enter anyone's home (real hot b/c no check on scope of
activities)
6. Wiretapping/Eavesdropping: requires W
-> EXCEPT you assume risk person talking to consents to govt wire
or monitoring

IV. CONFESSIONS

A. To admit, 14th Due Process requires Voluntary
1. Totality of Circumstances Test: age, education, mental/ physical
condition, setting, duration, manner of interr.

B. Miranda 5th Am Privilege Against Self-Incrimination
1. Warnings: prerequisite to admit any product (right to remain
silent, anything say can be used against you, rt to an atty, can't
afford, 1 appt'd, rt to terminate interr. at any time)
-> Don't have to be verbatim; no need rewarning after break (NOT
required if spontaneous blurting by D)
2. Required for Custodial Interrogation
a. Custody felt not free to leave (probation interviews & routine
traffic stops NOT custody; can ask Q)
b. Interrogation any conduct police knew or should have known might
elicit an incriminating response
3. Need a Waiver
a. Voluntary & intelligent (no response or shrugs is NO WAIVER);
affirmative waiver
4. Right to End Interrogation
a. *Once asks to stop & for atty, may not reinitiate w/o atty there
(regardless of new warnings)
b. Q can restart only by D initiating or reas. time, new warnings
about different crime

C. 6th Am Right to Counsel at all Critical Stages
1. Doesn't apply to precharge custodial interrogation (5th)
2. Adversary Judicial Proceedings begun
3. Must have voluntary waiver rt to counsel b/4 confession

V. PRETRIAL IDENTIFICATION

A. Rules to ensure remembering D from the crime & not b/c saw
previously at station

B. Substantive Bases to Attack Pretrial ID technique
1. Denial 6th Am Right to Counsel
a. No right to counsel for showing photos
b. Post-Charge showups (1 on 1), lineups get rt to atty
2. Denial of Due Process Standard
a. Pretrial ID techniques so unnecessarily suggestive & so
substant'ly likely to produce misID, denies due process

C. Remedy
1. In-Court ID stricken (victim/Witness can't ID in court)
2. BUT: OK if prosecution can show adequate source for in-court ID,
independent of tainted pretrial ID technique
a. Most common source is oppty victim/Witness had to observe D at
the time of the criminal act
3. Exceptn OK b/c purpose of these rules is to ensure Witness is
remembering D from the crime, not prior proceedings

VI. PRETRIAL PROCEEDINGS

A. Pretrial Detention: bail issues immediately appealable; if no
release conditn assures appearance, preventive detention is OK

B. Preliminary Hearing on Probable Cause to Prosecute: both sides
entitled to atty & to present evidence

C. Grand Juries
1. 5th Am right to grand jury indictmt doesn't apply to states
2. Exclusionary rule no good in grand jury proceedings
3. Proceedings secret (D no right to appear/send Witnesses)

VII. TRIAL

A. Basic Right to Fair Trial: means unbiased judge (no financial
interest in outcome or actual malice toward D)

B. Right to Jury Trial: constitutional right anytime D tried for
offense max authorized sentence for which is over 6 mos. (criminal
contempt has no legis. authorized sentence so it's the 1 actually
imposed)
1. Jurors: minimum 6 & if 6 must be unanimous. Has approved
nonunanimous 12 person verdicts
2. Cross-Section: big pool from which jurors selected must be cross-
section of area community, not your own indiv. jury. Prosecutor can't
use preempts to exclude for race

C. Right to Counsel
1. 6th Am. right to counsel
2. Indigent Misdemeanant: only if gets jail time, not just if statute
authorized (judge can say as to class on docket I won't be giving jail
time; forced waiver)
3. Effective Assistance of Counsel:
a. D must show atty conduct unreas. (deficient perf.) and but for
deficiency different result would have occurred (usually deny in essay
ans. unless arguable claim of innocence for D)
b. Mere inexperience, lack of preparatn time, complexity, access of
Ws, gravity of crime ARE NOT SUFFT BASIS

VIII. GUILTY PLEAS & PLEA BARGAINING (waives right to jury trial)

A. Contract View: S.Ct. doesn't like to disturb post-sentencing; views
plea bargain as K w/ terms expressed at plea taking; both held to
bargain

B. Taking the Plea
1. Read charge in court & asked how pleads
2. If guilty, Judge on record has constitutionally required
discussion to make sure entering plea voluntary & intelligent
a. Judge informs of (1) nature of the charge--e.g. homicide's
different mental elements (2) max authorizd sentence & any minimum (3)
that has right to plead not guilty & ask for trial (4) by pleading
guilty skip trial to sentencing
b. If mistake made, D can withdraw plea & plead again

C. Collateral Attacks on Guilty Pleas After Sentence
(petitioning for writ of habeas corpus)
1. Good bases for attack
a. Plea involuntary (messed up the ceremony)
b. Court taking lacked Juris
c. Ineffective assistance of counsel
d. *Prosecutor failed to keep agreed-upon plea bargain

IX. CONSTITUTIONAL RIGHTS ON SENTENCING & PUNISHMENT

A. Resentencing After Successful Appeal & Reconviction
-> Can't be given more time (chills exercise of appeal right)

B. Substantive Rights Regarding Punishment
1. Death penalty statute must allow D to present evidence of
mitigating factors/circum. or unconstitutional
2. Can't be any automatic category for death penalty
3. Any relevant mitigating evidence is admissible; state can't limit
or it's unconstitutional

X. COLLATERAL ATTACKS ON CONVICTIONS
(petitioning for Writ of H.C.)

A. Habeas is separate civil proceeding challenging unlawfulness of ANY
detention (pretrial, civil, juvenile, mental health). Brought by
detainee against official detaining

B. Petitioner shows by preponderance his detention unlawful. No right
to appointed counsel. State can retry if Writ granted (IT'S NOT DOUBLE
JEOPARDY)

C. State Prisoners can file federal habeas if in custody (haven't fully
served out sentence yet)

XI. PRISONER'S RIGHTS (don't have to know; don't have any really)

A. When Does Right Against Double Jeopardy ATTACH?
Doesn't if civil trial. Jury trial when jury sworn. Bench trial when
1st Witness sworn

B. Exceptions
Same sovereign/same offense/jeopardy attach, yet retrial OK
1. Jury unable to agree on verdict (if unanimous required)
2. Mistrial for Manifest Necessity (D appendicitis)
3. Retrial after Successful Appeal
4. *If D breaches plea bargain agreement; plea & sentence vacated &
original charge reinstated

C. Same Offense
1. 2 sentences in single trial NOT double jeopardy (multiple charges
& multiple punishments in single trial OK)
2. 2 separate trials NOT OK; is double jeopardy unless the 1 offense
requires proof of some addt'l fact which the other does not (viewed as 2
separate offenses -- poss'n & sale)
3. Lesser Included Offenses & Greater Offenses
a. Put in jeopardy for greater offense bars retrial of any lesser
included offense; put in jeopardy for lesser offense bars retrial for
greater offense
b. EXCEPTION: jeopardy for battery; victim dies; try for murder OK

D. Same Sovereign
1. Fed Govt & State Govt NOT Same Sovereign (prosecute under state &
fed laws by 2 sovereigns OK)
2. 2 States are Not the Same Sovereign (Trials in each OK)
3. State & Locality ARE Same Sovereign (trial for same offense under
a local law & state law OUT)

XIII. 5th Am. PRIVILEGE AGAINST COMPELLED TESTIMONY
-> Can be asserted by anybody in any kind of case

A. Key to Invoke: anyone asked under oath in any kind of case a Q
answer to which might tend to incriminate them can assert 5th Am
privilege (even providing link to crime)
1. MUST claim privilege in civil case to prevent later admission in
criminal proceedings

B. Scope of 5th Am Protection
1. Really protects from compelled testimony, not truly self-
incrimination (can force you in lineup, photo, print)
-> NOTE: case allowed adm. of D's refusal to submit to blood-
alcohol
2. Constitutional error for Prosecutor comment about D failing to
testify or remaining silent after Miranda
-> As an impermissible burden on your right to exercise the
privilege

C. Privilege Eliminated in 3 Ways
1. Grant of Adequate Immunity (won't use immunized statement or
products to convict you but can use what we had prior to grant of
immunity)
2. No further Possibility of Incrimination (SofL has run)
3. Waiver: D who takes stand waives to extent necessary for proper
cross-exam

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