QUICKSHEET – CRIMINAL LAW AND CRIMINAL PROCEDURE

CRIMINAL LAW

ACTUS REUS = Guilty Act

1) Voluntary, conscious act that causes an unlawful result; OR

a) Act + volition = legal act
i) Reflections/ sleepwalking lack volition so not legal acts

2) Omission when D has duty and ability to act

a) Statutory duties (law enforcement)
b) Legal duty by K (life guard/nursing home)
c) Status (Husband/wife, parent/child)
d) Voluntary undertaking to rescue that is abandoned
e) Failing to help after creating risk (hit/run)

MENS REA = Guilty Mind

1) Categories (normally defined by statute)

a) Purpose – Conscious objective to bring about result
b) Knowledge – Knows, with almost absolute certainty, that will produce result
c) Intent – Acts intentionally with purpose or knowledge
d) Willful – Acts purposefully or knowingly, with moral turpitude (similar to intent)
e) Recklessness – Aware that conduct creates risk that’s unjustifiable, but ignores and engages anyway
i) “D knew the risk but didn’t care”
f) Criminal negligence – creates an unjustifiable risk without subjective awareness that he is doing so,
but a reasonable person would have been aware
i) “D did not realize he created the risk, but should have, because a reasonable person in that situa-
tion would have”

2) Specific vs. General Intent

a) Specific intent – Requires proof D intended to create specifically prohibited harm, includes purpose or
knowledge (“with intent to”)
i) Nullified by honest but unreasonable mistake of fact and voluntary intoxication
b) General intent – Only requires desire to do the proscribed act; includes reckless and negligent states
of mind
i) Nullified by honest and reasonable mistake of fact

3) Malice – Essential mens rea element for murder at common law

a) Express Malice à D intended to kill another human being. To prove intent to kill, D acted with:
i) Purpose to kill;
ii) Knowledge that her conduct would kill; or
iii) Intent to inflict grievous bodily harm although no intent to kill
b) Implied malice à D caused death as a result of extreme reckless or criminal negligent conduct that
manifested a wanton disregard for human life

4) Strict liability = No mens rea element. Act + Result = Guilt

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5) Transferred intent – D intends to produce criminal result against one V but harms another – intent transfers

6) Concurrence – Mental state must actuate (set in motion) conduct that produces criminal result

CAUSATION – Actual Cause + Proximate Cause = Legal Causation

1) Actual Cause (cause in fact) 3 tests to satisfy

a) “But for” – Result would not have occurred but for D’s conduct
b) Substantial factor – multiple causes/parties responsible but D’s act was a substantial factor in causing
criminal result
c) Acceleration – D’s conduct speeds up inevitable death, even if brief

2) Proximate Cause – Required only when intervening event occurs between D’s actual cause and criminal
result. Question becomes whether intervening event supersedes D’s responsibility
a) If the intervening event is foreseeable, it will not supersede à D still liable
i) Foreseeable = negligence (take V as you find him, eggshell skull rule)
(1) Dependent or responsive to D’s initial cause
b) If it is unforeseeable normally will supersede à relieve D of liability and break casual connection to
criminal result
i) Unforeseeable = grossly negligent or reckless conduct that accelerates a death set in motion by D
(1) Independent intervening cause or a mere coincidence

HOMICIDE

1) Criminal Homicide = unlawful killing of a human being by another

a) A killing is unlawful when it is:
i) Without legal justification or excuse (no defense)
ii) Committed as a result of a criminal state of mind (criminal mens rea)
b) Homicide + malice = murder. Homicide without malice = manslaughter

2) Murder = Unlawful killing of a human being + malice

a) Mens Rea = Malice: may be express or implied, intentional or unintentional
i) Express if expected to cause death
ii) Implied if created extreme risk
b) Established by: (3 ways)
i) Intent to kill à D acts with the purpose to kill another or with knowledge that his conduct will kill
another
(1) Deadly weapons doctrine – Intent to kill inferred from D’s use of instrument designed to kill
or used in manner likely to kill or inflict grievous bodily harm (swinging bat at V’s head)
ii) Intent to inflict serious bodily harm à Conscious desire or substantial certainty that D’s actions
will result in V’s injury
(1) Serious / grievous bodily harm = significant but not fatal injury
iii) Depraved Heart Murder (or unintended kill resulting from extreme risk creation that manifests
wanton disregard for human life) Ex: Russian roulette (tip: 1/6 chance not substantial certainty)
(1) Unintentional killing resulting from:
(a) Reckless or grossly negligent conduct +
(b) That creates an extreme risk to others +
(c) And demonstrates wanton indifference to human life and conscious disregard of
unreasonable risk of death or serious bodily injury
c) Felony murder (FM)
i) Felony murder is:
(1) Unintentional killing +

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(2) Proximately caused +

(3) During commission or attempted commission +
(4) Of serious or inherently dangerous felony (BARRK)
ii) If these requirements are met à malice is automatically inferred
iii) Obstacles for prosecution
(1) “Right type of felony” – (1) Listed in statute or (2) be independent of killing and inherently
dangerous
(a) BARRK crimes satisfy both requirements:
(i) Burglary
(ii) Arson
(iii) Rape
(iv) Robbery, and
(b) Kidnapping
(2) “Right connection to felony”
(a) Death must be foreseeable outgrowth of felony
(b) Liberally applied – only coincidences ruled out
(3) “Right time” – death must be result of injuries inflicted during the commission, attempt, or
immediate flight from felony
(a) Felony starts when D could be convicted of attempt
(b) Terminates when D reaches temporary safety
iv) Co-felon liability – Varies by jurisdiction
(1) Majority: Agency Rule – Felony Murder liability limited to killing committed by a hand of
co-felon
(a) Exempts Felony Murder liability for killings at hands of non-felons
(b) Some apply when non-felon kills non-felon — V aims at felon but kills bystander
(2) CL – Attaches to all felons for any homicide during felony, just requires proxy cause of death
(a) Ex: Group robbery. Homeowner trips on way to call cops and dies. All felons
responsible.
(3) Exceptions:
(a) Non-violent felon – Min CL: Exempt felony if not armed and did not participate/have
knowledge of co-felons’ intent
(b) Deserving V – Min CL: Killing a co-felon
(c) Redline limitation – Maj CL: Police or V kills co-felon
d) 1st Degree
i) CL and Majority rule – Proof that D’s decision to kill was done with both premeditation and delib-
eration elevates 2nd degree to 1st degree murder
(1) D must consciously decide to kill, so only malice sufficient is intent to kill
ii) Premeditation – D must think about act of killing
(1) CL – Can premeditate immediately
(2) Modern – Some time necessary, but brief is enough time to decide
(a) Most jurisdictions require jury to find that premeditation occurred after intent to kill was
formed, which means proof of some reflection
iii) Deliberate – D must make deliberate choice to kill, requires rational thought
(1) Voluntary intoxication, diminished capacity may prevent

3) Voluntary manslaughter (heat of passion) = Intentional killing mitigated by adequate provocation or other
circumstances negating malice
a) Heat of passion negates malice element à intentional killing without malice = manslaughter
b) Adequate provocation (objective) = a provocation that would lead a reasonable person to lose

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self-control and fly into sudden homicidal rage
i) Mere words not enough (generally)
ii) Rage must be hot – time to cool off can’t be too long

4) Involuntary manslaughter = unintentional killing resulting from unjustified risk creation (recklessness or
gross negligence) that is not sufficiently extreme to rise to level of implied malice
a) D did not intend to kill or expect conduct to cause death, but death still results from unjustified risk
creation. Only implied malice if so extreme it indicates a wanton disregard for human life
b) Recklessness – D is subjectively aware of risk and ignores it
c) Gross neg. – Unaware of risk but reasonable person would have been aware
i) Ex: Mishandling loaded weapons, driving dangerously like DUI, shaking baby so hard it causes death
d) Misdemeanor manslaughter (min. rule) – Unintentional killing that occurs during commission/attempt of
misdemeanor or a non-BARRK felony

OTHER CRIMES AGAINST THE PERSON

1) Battery
a) General intent crime established by:
i) D unlawfully applies force (can be indirect like a rock if D puts it in motion)
ii) D does so intentionally, recklessly, or as a result of crim neg.
iii) Without legal justification/excuse
b) In most jurisdictions, simple battery (misdemeanor) can be elevated to aggravated battery (felony) when D:
i) Causes serious bodily harm;
ii) Uses deadly weapon; or
iii) Special category of V (child, woman, cop)
c) Defenses
i) Valid consent
ii) Self-defense and defense of others as long as proportional force
iii) Prevention of crime so long as proportional force

2) Assault – Incomplete battery (2 types)

a) Failed attempted battery – proof that D intended to actually batter a V but failed à So long as D
intended to commit battery, no defense that V was not aware of assault or that D was not presently
able to commit
b) Fear of battery assault –D never intended to actually batter the V, but instead, to put the V in fear of
an immediate battery àD must act with threatening conduct intended to cause reasonable apprehen-
sion of imminent harm to V
i) Reasonable apprehension
(1) No assault when reasonable person would not expect imminent bodily harm
(2) More “expectation” than “fear” – must simply anticipate that battery will result in immediate
bodily harm
(3) V must be aware of threat of harm
c) Can rise to aggravated felony assault when:
i) D commits with dangerous weapon
ii) D acts with intent to rape or murder V
iii) V is specially protected by statute

3) False Imprisonment – Confinement of one person by another when it is intentional, against the law, and
V is fully confined

4) Kidnapping
a) Modern law: a person commits the offense of kidnapping when he:
i) abducts or steals away any person;
ii) without lawful authority or warrant; and
iii) holds that person against his or her will.
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b) Common Law: kidnapping consisted of an unlawful restraint of a person’s liberty by force or show of
force so as to send the victim into another country
5) Rape
a) Modern: sexual intercourse against a victim’s will by force, threat, or intimidation
i) Any penetration, however slight, will satisfy the requirements for rape.
ii) Mistake of fact can be defense because no requirement to prove extrinsic force, but mistake must
be both honest and reasonable
b) Common Law:
i) Carnal knowledge of a woman (vaginal penetration of V by D) not wife,
ii) against her will, (without consent)
iii) by force or threat of force (“NO” was not enough)
a) Statutory rape – if V is under statutorily prescribed age of consent (usually 16), intercourse = rape,
even if V expressed her consent or D mistakenly believed she was of legal age

THEFT CRIMES: Key = intent to permanently deprive (steal)

1) Larceny – unlawful taking of property in someone else’s possession with intent to steal
a) At common law:
i) Trespassory taking
ii) And carrying away
iii) Of tangible personal property
iv) Of another
v) With intent to permanently deprive or steal (specific intent)
b) If D takes property, but at the time intends it to be temporary, and later decides to permanently deprive
the owner of the property, doctrine of continuing trespass establishes concurrence between unlawful
taking and requisite intent to steal
c) No intent if you think property is yours, no matter how unreasonable
d) If, at the time of taking, D intends to return property to V unconditionally and within a reasonable
time, no intent IF D has ability to return

2) Embezzlement –unlawful conversion of property already in D’s possession with intent to steal
a) Unlawful conversion
i) Transforming someone else’s property to your own – need some action toward property that seri-
ously interferes with owner’s rights, i.e. selling, consuming, damaging, claiming title to it
b) Of tangible personal property of another
c) By one who is already in lawful possession
i) Specific fraudulent intent to steal can be negated by honest belief that D has right to property

3) Robbery – larceny accomplished by force or threat of force

a) Must be trespassory taking of personal property with intent to steal
i) Honest mistaken belief of right negates intent to steal
b) Taking from V’s person or presence (area w/in their control)
c) Force or threat of force that places V in actual fear at time of taking required
i) Ex: Pickpocket. Larceny yes but not robbery because no fear

4) Theft by false pretenses –obtaining title to property owned by someone else through fraud
a) False representation of present or past material fact by D
b) Which causes V to pass title to his property à no crime without reliance
c) To D
d) Who knows it is false
e) And intends thereby to defraud

5) Larceny by trick – obtaining possession (not title) through fraud, with intent to steal
a) D tricks possessor into giving possession through fraudulent misrepresentation à no crime
without reliance
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b) Fake check = Larceny by trick, not false pretenses, because title does not pass until check clears, but
most juris. have specific crime for this

6) Extortion (blackmail) – obtaining property of another by threat of future harm to V or his property
a) Tip: If it’s present harm, it’s probably robbery, not extortion

7) Receiving stolen property – Receipt of stolen property, known to be stolen with the intent to permanently
deprive owner (common law misdemeanor)

8) Forgery – Fraudulently making false writing with apparent legal significance with intent to make wrongful
use of doc
a) Alteration must be material (change meaning or effect of doc) to qualify –i.e. signing false signature on will

CRIMES AGAINST HABITATION

1) Burglary – Breaking and entering of the dwelling of another at night with intent to commit felony therein
a) Breaking
i) CL: Requires some force
ii) Modern: Relaxed to include slight enlargement of an opening
iii) CL and Modern statute: Entry by fraud, deception, threat is adequate
b) Entering
i) Breaking to exit is not burglary
ii) Placing any portion of body inside structure
(1) Modern: tool used for taking is sufficient
c) Dwelling house of another
i) CL: Home where people lived, whether occupied or not and included structures on “curtilage”
such as storage sheds
ii) Modern: Almost any structure whether or not “dwelling”
d) At night (modern generally dispenses with this requirement)
e) With intent to commit felony therein – breaking and entering must be accompanied by simultaneous
felonious intent (felony intent after breaking is insufficient)

2) Arson – Malicious burning of property

a) Malice established by intent or result of extreme recklessness
b) Modern: no requirement of dwelling of another

INCHOATE CRIMES –All require specific intent to commit target offense

1) Solicitation – crime of trying to get someone to commit your crime à Key = communication
a) Rule: Enticing, advising, inciting, inducing, urging, or otherwise encouraging another to commit target offense
i) CL: Misdemeanor and crime solicited had to be felony or peace breach
ii) Modern: Broader – requesting another to commit any offense
b) Intent: must intend solicitee to perform criminal acts
c) Offense complete at time solicitation is made àonce solicitation is communicated = crime, solicitor
cannot withdraw from solicitation
d) No requirement that solicitee commit offense BUT if they do (or attempt to) solicitation merges into
that offense and solicitor charged as an accomplice, not with solicitation

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2) Attempt –crime of “almost” committing a crime à Key = evidence that D crossed line from preparation to
perpetration
a) Two elements:
i) Specific intent or purpose to bring about criminal result +
ii) Significant overt act in furtherance of that intent that proves D went past point of preparation and
began perpetration
(1) CL: D required to perform last act necessary to achieve intended result
(2) MPC: Acts prior are sufficient as long as “substantial step” toward commission that indi-
cates a purpose to complete attempt has been made
(3) Many Jurisdictions: Proximity test – How close in time and physical distance D was to time
and place target crime was to be committed
(4) Some use Equivocality test – D’s conduct unequivocally indicates he was going to complete
target offense
iii) Ex: At CL, D would have to pull trigger to be guilty of attempted murder, today, loading bullets
while in proximity to intended V with clear line of sight would be sufficient
b) Defenses
i) Abandonment
(1) CL: No defense once attempt complete (moved from preparation to perpetration)
(2) MPC: Voluntary, complete abandonment is defense
ii) Legal impossibility: Not guilty if thought committing a crime but it’s not
iii) Factual impossibility: D would have committed offense had facts been as she believed them to be
- D is guilty of attempt
(1) Ex. D thinks gun works, points at V and pulls trigger, its jammed and doesn’t work à D
guilty of attempt

3) Conspiracy – crime of planning to commit crime with someone else à Key = evidence that D crossed line
from thinking about crime to collective preparation to commit crime
a) Rule: Agreement to create unlawful criminal combination between 2 or more persons with intent to
agree and specific intent (purpose) to commit unlawful act
b) Overt act requirement
i) CL: Not required, agreement itself is crime
ii) Modern: Require overt act in furtherance of conspiracy
(1) Beginning preparation to commit the crime is all that is required, can be very trivial (unlike
requirement in attempt where it is beyond preparation to beginning perpetration)
c) Co-conspirator liability/ Pinkerton rule: Each co-conspirator is liable for crimes of all other co-cons
where crimes were both:
i) A foreseeable outgrowth of conspiracy (murder of guard); and
ii) Committed in furtherance of conspiratorial goal
d) Procedural issues
i) CL: If only 2 conspirators, acquittal of 1 co-con required acquittal of other because need 2
ii) MPC: Unilateral conspiracy – Permits conviction of single party when other feigned agreement or
is acquitted
e) Defenses
i) Withdrawal (CL+MPC) Complete and voluntary withdrawal severs liability for future crimes, but no
defense to conspiracy itself
(1) Requires notice to all conspirators
ii) Renunciation (MPC only) Withdrawal + affirmative act to thwart conspiracy can eliminate liability
for conspiracy

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PARTIES TO CRIME

1) Accomplice – way to link accomplice to a crime committed by someone else. Accomplice charged as if he
were principal (one who committed crime)
a) Rule: D is criminally liable as an accomplice if:
i) Does some act (or omission w/duty to act) that facilitates the principal’s commission of crime (or
attempt), including encouragement with purpose of bringing about commission of crime
b) Scope: Accomplice liable for crimes purposefully facilitated and all others that are reasonably foresee-
able outgrowths of primary crime
i) Must be objective, can’t just say he didn’t expect it
c) Defenses
i) CL: Accomplice can withdraw by giving principal timely notice and nullifying effect of prior
facilitation
ii) MPC: To remove accomplice liability, must either:
(1) Render prior assistance to perpetrator completely ineffective,
(2) Provide cops w/timely warning of plan, or
(3) Make proper effort to prevent perp from committing

DEFENSES

1) Insanity (Excuse of lack of mental responsibility)

a) Rule: If D was legally insane at time of his criminal act, no crim liability will be imposed – 4 different
tests:
i) M’Naghten test – Focuses on D’s reasoning abilities. D relieved of crim resp. upon proof that at
time of commission:
(1) D suffered from severe mental disease or defect, and
(2) As a result, unable to know either
(a) Nature and quality of his act; OR
(b) What he was doing was wrong (delusional self-defense)
ii) Irresistible impulse test – Not guilty when D had a mental disease that kept him from controlling
his conduct
iii) MPC test – D not responsible for criminal conduct if, at time of such conduct and as a result of
mental disease or defect, he lacked substantial capacity to appreciate criminality (wrongfulness)
of his conduct or to conform conduct to the requirements of law
iv) Durham (or New Hampshire) rule – D not crim responsible if unlawful act was product of mental
disease/defect – it would not have been committed “but for” the disease/defect
b) Intoxication
i) Involuntary intoxication (alcohol or narcotic) – defense to any crime requiring proof of general or
specific intent so long as it negates mens rea
ii) Voluntary intoxication – may be a valid defense for a specific intent crime if it negates requisite
mental state (may negate purposeful or knowing mental state). Not a defense to general intent
crimes and won’t negate recklessness, negligence, or strict liability

2) Duress – excuses crim conduct where D reasonably believes that only way to avoid unlawful threat of great
bodily harm or imminent death is to engage in unlawful conduct
a) Not a defense to murder, unless to excuse underlying felony in Felony Murder

3) Self Defense (justification defense) Honest and reasonable judgment that it is necessary to use force to
defend against an unlawful, imminent threat of bodily harm
a) D is V of unlawful threat (not initial aggressor)
b) D is in imminent danger of unlawful bodily harm (call cops otherwise)
c) D uses proportional force (no more than reasonably necessary) to prevent imminent harm

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d) Homicidal self-defense (deadly force)
i) Permitted only in response to imminent threat of death or grievous bodily harm
ii) Unclean hands – First aggressor may not claim self-defense
(1) CL – aggressor could regain right to self-defense only by complete withdrawal perceived by
the 1st V
(2) Modern – 1st aggressor has right to self-defense if the 1st V responds to the aggression
with excessive force
e) Retreat rule
i) CL: V of unlawful violence had duty to retreat before use of deadly force
ii) Even when retreat still required, not required in D’s own home, car, or office and not required
if retreat not feasible

4) Defense of 3rd person

a) Justified when necessary to defend 3rd party who is facing unlawful imminent threat of bodily harm
b) Deadly force only justified when threat of death or grievous bodily harm
c) Maj: reasonableness of D’s belief that 3rd person was being unlawfully attacked. If reasonable but
mistaken, D can still claim defense of others
d) Min: D steps into shoes of V attacked—if 3rd party was first aggressor or failed to retreat when
required by law, D has no defense

5) Defense of property: Reasonable, non-deadly force is justified in defending one’s property from theft,
destruction or trespass where:
a) D has reasonable belief property is in immediate danger + No greater force than necessary is used
b) Deadly force may never be used to defend (trap guns)

6) Necessity: justifies commission of what is normally a crime when:

a) Necessary to avoid immediate threat of greater harm to persons or property +
b) No reasonable alternative to breaking law to avoid greater harm +
c) D not responsible for causing the harm
i) CL: Necessity never defense to murder, unless raised as defense to underlying felony for Felony
Murder
ii) MPC: Can raise for all charges, even homicide, which might result in acquittal if D kills 1 person
to save lots of lives

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CRIMINAL PROCEDURE

INTRODUCTION

1) 4th Amend à protects from unreasonable searches and seizures and requires warrants to be based on
probable cause

2) 5th Amend à prohibits coerced confessions and unreliable identifications and provides privilege against
self-incrimination

3) 6th Amend à provides a person formally accused of a crime right to counsel in all critical stages of adver-
sarial process and provides right to confront testimonial evidence

4) Approach to Criminal Procedure Question

a) Was there government action?
b) If so, did it trigger a constitutional right (i.e. was it a search or seizure)?
c) If so, did the government violate the constitutional right (i.e. was the search or seizure unreasonable)?
d) If so, is D entitled to remedy of exclusion?

FOURTH AMENDMENT

1) Applies ONLY to government conduct

2) Seizure
a) Seizure of persons: When, due to gov’t action, a reasonable person in D’s position would not feel free
to leave or terminate police encounter
i) Police need to use physical force or showing of authority followed by submission
ii) Terry Stop: brief investigatory seizure. Difference with arrest is duration + purpose. Permissible
duration is time necessary to confirm a reasonable suspicion that crime has occurred, if so à
now have Probable Cause (PC). If suspicion is denied, seizure must stop
b) Seizure of Property: police take action that results in a meaningful interference with a possessory
interest

3) Search: Any gov’t investigatory trespass against a 4th amend interest OR intrusion into a reasonable
expectation of privacy (REP)
a) Investigatory trespass –intrusion upon target’s person, home (including curtilage), papers, or effects for
purpose of finding or gathering evidence of a crime. Need investigatory motive
b) Reasonable Expectation of Privacy (REP) requires that:
i) D manifests subjective expectation of privacy by making effort to shield thing or activity from
public +
ii) Expectation is objectionably reasonable because it is an expectation society is willing to
recognize
(1) Not REP if objects held out to public (i.e. handwriting, voice, bank records, email headings,
open fields, discarded property)

4) Compliance with 4th Amendment à search or seizure must be reasonable

a) Warrant creates presumption of reasonableness, D bears burden of rebutting this presumption by
proving:
i) Warrant not based on valid probable cause; or
ii) Magistrate not neutral or detached; or
iii) Warrant failed to describe with particularity thing to be seized or place to be searched
b) Any search or seizure without a warrant presumptively unreasonable, gov’t bears burden of proving it
falls within an established exception

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c) Probable cause (PC) -“fair probability”, facts and circumstances that would make a reasonable person
conclude that the individual in question has committed a crime (for an arrest) or that specific items
related to criminal activity can be found at a particular location
i) Always required for full-scale intrusion (search to find evidence or an arrest)
ii) Can be based on tip from confidential or anonymous informant – totality of circumstances test
used for reliability of tips, considers:
(1) Veracity of informant (normally predictive info)
(2) Basis of knowledge (how does informant know activities of suspect)
(3) Police investigation that corroborates facts in tip and validates accuracy of informant’s
predictions
d) Reasonable suspicion (RS) - a belief based upon articulable information more than a mere hunch used
by a reasonable person or cop that suspect has or is about to engage in illegal or criminal activity
i) Reasonable suspicion is a level of certainty that will justify only a brief investigatory seizure (Terry
Stop) or cursory protective search (Terry Frisk)

5) Applying 4th amendment to seizures

a) Arrests à Probable cause always required
i) Warrant not required to arrest in public, but is required to arrest individual in own home unless
exigent circumstances
b) Terry Stops à Reasonable Suspicion that crime is in progress or has just been committed justifies a
brief investigatory seizure (terry stop) to confirm or rule out suspicion
i) Established by:
(1) Police observations, eye-witness reports
(2) Flight from police in high crime areas
(3) Informant tip + police investigation that corroborates tip (don’t need insider access)
ii) Scope = time required, acting in due diligence to confirm or deny suspicion
c) Seizures of property à warrant (based on PC) presumptively, not always required to justify seizure of
property
i) No warrant if in plain view, requires:
(1) Police lawful vantage point to observe item
(2) Needs to be immediately apparent that item is contraband
(3) Officer has lawful access to point of seizure

6) Applying 4th amendment to searches

a) Searches pursuant to warrant à warrant gives police authority to search only named places or people
i) Contraband not named can be seized if in plain view
ii) Right to detain occupants during search (but not right to search them)
b) Warrantless searches à unreasonable UNLESS falls into an established exception:
i) Search incident to a lawful arrest (SITLA) à upon a lawful arrest (based on PC) can automati-
cally search the arrestee + area within his immediate control (wingspan or lunging distance)
(1) Must be contemporaneous
(2) If arrested at home, limited to area within lunging distance and no authority to search entire
house
(a) If RS, other people home, and may put police in risk, can conduct cursory protective
sweep (Terry Sweep) but ONLY where people could fit
(3) If arrested in / right out of car:
(a) Can automatically search person
(b) If genuine access to interior of car after arrest, can search interior car and all
containers within interior
(c) If no genuine access to interior of car, can only check car if reasonable belief evidence
related to crime of arrest in car
ii) Automobile exception à can search car as long as have PC

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(a) Justified by inherent mobility and reduced expectation of privacy

(b) Applies to all containers within vehicle where item could be found for which probable
cause exists
(c) Can also impound car and search it later
iii) Special needs doctrine à Can use checkpoints to conduct brief seizures / limited searches
without individualized suspicion or warrant because of public safety danger that cannot be
addressed by complying with warrant requirements
(1) Primary purpose must be need to search or seize to protect public from immediate danger
(2) Must be:
(a) Based on fixed formula that deprives individual officers of discretion to select subjects
(b) Narrowly tailored in scope, to address the specific threat
(c) Conducted in location and manner that minimizes citizen anxiety
(3) Can seize contraband that comes into plain view even if unrelated to public safety concern
(4) Border exception: Custom official may, with no suspicion or cause, as an incident of
national sovereignty:
(a) Stop vehicles at permanent checkpoints located at or near border
(b) Conduct routine searches of people and property
iv) Consent à if individual waives right to privacy by consenting to search, search is reasonable
even if police have no suspicion
(1) Must be voluntary (totality of circumstances)
(a) Invalid if obtained by asserting fake warrant, fraudulently, under duress, or pursuant to
unlawful police threat
(b) If consent obtained followed unlawful seizure, it’s tainted, and consent and any
evidence invalid
(2) Third party consent: any person who has joint control or use of shared premises may
consent to valid search, and evidence may be used against all residents
(a) Applies to common areas, not where D has exclusive control
(b) Reliance on consent is reasonable if person has actual authority or reasonable officer
believes that person had authority
(i) Cannot rely on consent when other party is present and objecting
v) Hot pursuit à may enter and search private dwelling while in hot pursuit of the fleeing suspect
(1) May execute warrantless arrest of suspect on premises and seize any contraband
observed in plain view pursuant to hot pursuit
vi) Exigent circumstances à warrantless search permissible when waiting to obtain a warrant will
result in imminent destruction of evidence, escape of accused, or risk to police or others in the
area
(1) Justifies warrantless search and seizure of evidence in or on a suspect’s body if PC to
believe the nature of evidence renders it easily destroyed or likely to disappear before
warrant can be obtained
(a) Needs to be reasonable and not shock conscious
(2) Justifies warrantless crime scene search to seek other Vs, remaining killers, or violent felon
vii) Terry search (frisk) à Cursory, protective search for weapons or some other instrumentality that
creates imminent danger to officer or others in close proximity
(1) Justified only by RS that suspect is armed and dangerous = protective search, not search
for evidence
(2) Limited to suspect’s outer clothing to confirm or deny suspect is armed
(3) If frisk / pat down results in officer feeling something he knows immediately is a weapon
or other contraband à officer may seize it without a warrant pursuant to “plain touch”
(variant of plain view)
(a) If knows it’s not a weapon and has to manipulate it to establish PC to seize it à

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exceeds scope and is unreasonable

(4) Cars: brief cursory look in car where police have RS that person stopped will have imme-
diate access to weapon after getting back in car
(5) Home: cursory sweep of home on RS that others may be present and endanger officer
viii) Admin Searches à conducted for non-criminal purpose and justify lower standard of cause
(1) Agency compliance inspection, justified by RS
(2) Border searches – customs and immigration officers may conduct routine searches of
people and property crossing borders in US with no individual suspicion. Vehicles at border
crossing may be stopped without cause for questions, but RS required to fully search car
c) 4th Amend Remedies
i) Three requirements for exclusion of evidence:
(1) Unreasonable search or seizure must trigger remedy exclusion
(2) D claiming remedy (seeking exclusion) must have standing
(3) Facts do not support applying an exception to exclusionary rule
ii) Exclusionary Rule – If all 3 requirements met à D can invoke the exclusionary rule to prohibit
govt from introducing evidence obtained as a direct or derivative result of an unreasonable search
and seizure
(1) Fruit of the Poisonous Tree Doctrine: Any additional evidence derived from initial ille-
gality, including oral statements and physical objects, fall within the scope of exclusionary
rule and are tainted fruit of poisonous tree
(a) Exceptions: although inadmissible under fruit of poisonous tree, can be purged and
admitted if:
(i) Independent source: If evidence is obtained from lawful independent source of
original illegality
(ii) Inevitable discovery: Evidence that is obtained through poison tree will still
be admissible if police establish that they would have inevitably discovered the
evidence through a different independent source
(iii) Attenuation: evidence so distant from initial illegality that taint of poison is purged
and evidence is admissible. Factors:
1. Different location
2. Passage of time
3. Different officers
4. Valid Miranda waiver
(2) Exclusionary rule does not apply to use of tainted evidence to impeach D’s testimony
(3) Good Faith Exception: when police act in good faith on warrant that is later ruled invalid,
evidence not excluded
iii) Standing- must show that unreasonable search or seizure intruded on his personal constitutional
rights. Cannot assert someone else’s constitutional rights
(1) How to establish standing:
(a) Ownership or possessory interest in place searched or item seized
(b) Owner of car or person in possession of car has standing to seek exclusion of
evidence obtained as result of unreasonable search of car
(c) Overnight guest at someone else’s house

STATEMENTS, CONFESSIONS AND MIRANDA

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 CONSTITUTIONAL BASIS/TRIGGER/TEST
QUICKSHEET
APPROACH

Voluntariness Approach – statements obtained by actual Due Process Clause of 5th and 14th Amends: Triggered
coercion are involuntary and inadmissible for any purpose. by govt conduct overbearing the free will of suspect. Look
at totality of circumstances.

Right to Counsel Approach – deliberate elicitation of a 6th Amend Right to Counsel: Triggered by direct or
statement from a formally charged D is inadmissible unless surreptitious police questioning of D without lawyer present
counsel was present or police obtained a knowing and or waiver.
voluntary waiver.

Miranda Rule: Statements obtained as result of custodial 5th Amend Privilege Against Self-Incrimination:
interrogation are inadmissible in prosecutor’s case in chief Triggered by custody + interrogation. Did suspect make a
without Miranda warning and valid waiver. knowing and voluntary waiver?

Fruits of Illegal Conduct: Statements that comply with Fruit of the Poisonous Tree Doctrine: Triggered by a
3 tests above may still be tainted if they are the “but for” “but for” link btwn constitutional violation + police obtaining
consequences of a predicate constitutional violation such statement.
unreasonable search/seizure.

1) Voluntariness Approach à Statements obtained by actual coercion are involuntary and inadmissible for
any purpose
a) Triggered by government conduct that overbears free will of suspect
i) Factors of coercion—totality of circumstances:
(1) D’s age, health, education, intelligence, gender, cultural background;
(2) Location, duration, and physical conditions of interrogation
(3) Number and demeanor of police officers, suspect’s experience with criminal justice system;
(4) Deception and trickery by police

2) 6th Amend Right to counsel approach à offense-specific—triggered by initiation of formal adversarial

process (formal charges, indictment, arraignment, or preliminary hearing) during all critical stages
(deliberate elicitation of statements, physical lineup, preliminary hearing, and trial) of adversarial process
a) Any statement obtained by police from D related to crime he is formally charged with is inadmissible
unless:
i) His lawyer was present; OR
ii) He executed a knowing and voluntary waiver

3) 5th Amendment Privilege against self-incrimination à no person shall be compelled in a criminal case
to be a witness against self
a) Absolute privilege to refuse to testify when:
i) D has a real and substantial fear that testimony will result in self-incrimination or contribute to
his criminal conviction; +
ii) D asserts privilege by refusing to testify
b) Waiver: mere act of answering police or govt questions
c) Immunity to eliminate risk of self-incrimination
i) Use/Testimonial Immunity à prohibits use of witness’s testimony or any evidence derived from
that testimony against witness. Can still prosecute witness so long as evidence has no connec-
tion to testimony
ii) Transactional Immunity à prohibits ANY future prosecution of witness for transaction that is the
subject of testimony

4) Miranda Rule à Statements obtained as a result of custodial interrogation are inadmissible in

prosecution’s case-in-chief in absence of Miranda warnings and valid waiver
a) Triggered by Custody + Interrogation
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 CRIMINAL LAW AND CRIMINAL PROCEDURE
i) Custody: formal arrest or situation where a reasonable person in suspect’s position would believe
their freedom has been deprived; Ex. formal arrest
ii) Interrogation: direct questioning or words or actions a reasonable officer would anticipate were
likely to result in eliciting an incriminating response
(1) Spontaneous or volunteered statements do not implicate Miranda rule (even if made while
in custody) because not a product of questions
b) Did suspect make a knowing and voluntary waiver? If not, statements violate Miranda
i) Waiver must show that suspect understood his rights (orally or written). Waiver cannot be
presumed from silence
c) Effect of Invoked Rights
i) If suspect makes an unequivocal request for an attorney or states she wishes to remain silent
(request can be made at any point during interrogation) à all interrogation must stop. Whether
police can re-initiate questioning after right invoked depends on what right invoked
(1) Invoked right to remain silent à police must allow for significant time to elapse and then
obtain a new Miranda waiver
(2) Invoked right to counsel à may not resume questioning until counsel is present, OR, D
re-initiates contact with police and executes a new waiver, OR 2 weeks after D is returned
to his normal environment and police get new waiver

IDENTIFICATIONS

1) Due process standard – applies to all types of identifications at all stages of investigatory and prosecuto-
rial process
a) Rule: If a D can prove that an identification procedure used by government was so unnecessarily
suggestive that it created an irreparable risk of mistaken identification à procedure violates due
process and cannot use ID at trial
i) The focal point of this due process test is reliability, which requires D to prove both:
(1) That procedures used were unnecessary suggestive +
(2) That suggestiveness produced an unreliable ID – factors:
(a) Opportunity to view criminal at scene;
(b) Witness’s degree of attention;
(c) Accuracy of witness’s description;
(d) Degree of certainty of witness; and
(e) Time interval between crime and identification (the longer the interval, the less
reliable)
ii) When an out-of-court ID is excluded because it violates due process, a subsequent in-court ID by
same witness will almost always be excluded as fruit of poisonous tree

2) 6th Amend right to counsel violation à Out-of-court corporeal identification (human, in person) is a
critical stage in adversarial process and D cannot be subject to it without counsel present or a knowing and
voluntary waiver of counsel
a) Only applies to corporeal identifications and only after initiation of formal adversarial process (suspect
becomes D)
b) Consequences of violation: If police conduct a corporeal lineup in violation of the 6th Amendment:
i) results are per se inadmissible at trial, and
ii) witness is prohibited from making a subsequent in-court ID of D unless prosecution can prove by
clear and convincing evidence that in-court ID is independent from inadmissible out of court ID

PRE-TRIAL PROCEDURES

1) Grand-Jury Indictment: a written accusation stating charges against D issued by a grand jury after it

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QUICKSHEET

reviews prosecution’s evidence

a) A grand jury is not an adversarial hearing, it is an investigatory tool. Therefore:
i) D has no right to be present and no right to assistance of counsel
ii) Prosecution presents evidence to grand jury without confrontation process
iii) Prosecution has no obligation to present clearly exculpatory evidence to grand jury
iv) No Miranda warning needed

2) Bail Hearing: D entitled to individualized hearing to determine whether bail should be granted or denied. No
constitutional right to bail, but if appropriate, it may not be excessive

3) Plea Bargaining: D may be convicted based only upon his plea. Plea must be voluntary and intelligent (D
must be informed of the general nature of offense he is pleading guilty to)

PRE-TRIAL RIGHTS

1) Right to a Speedy Trial: guaranteed by the 6th Amend. Clock begins running once D is accused by formal
charge or is arrested for crime
a) Only remedy for constitutional right violation is dismissal with prejudice (can never try case)
b) Test for violation
i) Length of delay – generally more than 1 year triggers inquiry, but defense-requested delays,
including motions, are excluded from duration calculation
ii) Reason for delay – a “good” reason is one that prosecution has no control over, as opposed to
one prosecution could have avoided by due diligence
iii) Demand for speedy trial – not essential, but if D failed to make demand, normally indicates that D
did not consider delay prejudicial
iv) Unreasonable delay normally must result in prejudice to D (i.e. degradation of evidence)

2) Discovery: violates due process for prosecution to fail to disclose to D evidence both favorable and
material
a) If prosecution fails to disclose favorable evidence, D is entitled to a new trial (or sentencing) if the
evidence was also material
i) If D makes a discovery request à any evidence that would tend to help defense
ii) If D does not make a discovery request à only evidence that is clearly exculpatory
b) Material: evidence would have created a reasonable probability of a different outcome—if disclosed,
would have created reasonable doubt
c) Prosecution not required to disclose this info to a criminal D before plea bargaining or entering into a
plea agreement

GUARANTEES OF A FAIR TRIAL

1) Right to Counsel at Trial: D may not be imprisoned for any offense unless he was represented by counsel
or waived that right
a) Attaches to all critical stages of proceedings that affect D’s right to a fair trial (trial, preliminary hearing,
corporeal identifications, police questioning)
i) Triggered by actual result of case, not risk à any trial that results in confinement triggers require-
ment for D to have counsel
b) The right to counsel means the right to effective counsel. Courts presume that legal counsel is effec-
tive, very difficult to prevail on an ineffective assistance of counsel claim. A D seeking a new trial based
on a claim of Ineffective Assistance of Counsel must prove both:
i) That counsel was ineffective (below minimum standard of lawyer conduct) +
ii) Had the lawyer been effective, it would have created a reasonable probability that outcome would
have been different—effective representation would have created reasonable doubt

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2) Right to Jury Trial: attaches if D faces a potential sentence of more than 6 months’ confinement (triggered
by risk / potential results)
a) D has a right to jury selection from a fair cross section of community (ethnic + gender demographic)
b) Petit Jury (actual jury) no requirement to be a fair cross-section

3) Confrontation Clause: 6th Amend provides D with a right to confront witnesses and evidence presented
against him
a) Trigger: testimonial evidence – statements made in a situation where witness would expect it to be
used as evidence
i) Ex: Telling 911 operator what is currently happening during an ongoing emergency is not testimo-
nial but telling what already happened for an investigation is
b) Satisfied by witness testimony provided under oath if D has an opportunity to cross-examine (does not
actually have to cross examine)

DOUBLE JEOPARDY

1) When a D moves to dismiss a charge based on a violation of double jeopardy, she must establish she had
been in jeopardy for same offense by same sovereign

2) Being previously charged is insufficient; D must prove jeopardy had attached—jeopardy attaches:
a) In a non-jury trial à when first witness is sworn and court beings to hear evidence
b) In a jury trial à when jury is impaneled and sworn

3) Same offense: two crimes occurring out of same transaction are considered same offense, unless:
a) Each charge requires proof of a separate criminal impulse (i.e. multiple Vs in 1 transaction); or
b) Each charge requires proof of a separate factual element

4) Separate Sovereignties: does not prevent dual prosecution by separate sovereigns – a D may be prose-
cuted for same criminal conduct by separate sovereigns
a) Each state is separate sovereign and the fed govt is separate from the states

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