Criminal Law Course Outline

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 ----- Brought to you by - The 'Lectric Law Library The Net's Finest Legal Resource For Legal Pros & Laypeople Alike. http://www.lectlaw.com