CRIMINAL LAW &PROCEDURE
<<CRIMINAL LAW>> GENERAL MATTERS
JX: Legal situs is where conduct/result of crime happened, or should have happened.
MERGER: Only solicitation and attempt merge into substantive offense. No merger
for conspiracy, which is treated as a separate crime.
ELEMENTS: 1) Physical act (actus reus) —own volition, not reflective, convulsive,
unconscious; 2) mental state (mens rea); 3) concurrence of act and mental state
4) causation—
causation—actual & proximate 5) Result.
MPC MENTAL STATES Purpose: conscious objective to engage in certain
conduct/cause cert result Knowingly: aware conduct likely to cause result.
Recklessly: conscious disregard of a substantially unjustifiable risk. Negligent: fails to
be aware of a substantial and unjustifiable risk.
SPECIFIC INTENT: crimes requiring doing of act + specific intent  solicitation,
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conspiracy, attempt, 1  degree murder, assault, larceny, embezzlement, false
pretenses, robbery, burglary, forgery.
GENERAL INTENT: requires awareness  battery, rape, kidnap, false imp.
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MALICE CRIMES: reckless disregard of high risk of harm; CL 2  degree murder/arson.
STRICT LIABILITY: no required awareness. Mistake of fact is no defense.  Statutory
rape, selling beer to minor, bigamy.
TRANSFERRED INTENT: homicide, battery, arson. No attempt. Usually guilty of 2
crimes: completed crime against actual Victim and attempt against intended Victim.
ACCOMPLICE LIABILITY & INCHOATE OFFENSES
LIABILITY: crime itself and all foreseeable crimes committed in furtherance. active
involvement—
involvement —aid, counsel or encourage intent to aid; mere presence insufficient.
Withdrawal: repudiate encouragement, neutralize assistance, call police or other.
SOLICITATION: inciting, urging, or asking another to commit crime w/ intent they
commit the crime. Not response/acceptance reqd from solicited; crime ends at
asking. If crime subsequently committed, merge into conspiracy. No defenses.
CONSPIRACY: 1) 2+ people agreement 2) intent to pursue + intent to agree 3)
unlawful objective. Majority jxs require overt act (mere prep sufficient). No merger.
Liability: all foreseeable crimes committed to further conspiracy.
Withdrawal: effective by timely, affirmative act notifying all co-conspirators, and
attempt to neutralize. At CL, 2 must be guilty; MPC 1 guilty sufficient.
ATTEMPT: Specific Intent to commit + substantial step beyond mere prep
(dangerously close to completion) Legal impossibility is a defense; factual
impossibility and abandonment are not.
DEFENSES NEGATING CRIMINAL CAPACITY
INSANITY: defense to all; including Strict Liability. D —burden of production.
M’Naghten:
M’Naghten : lacked ability to know wrong of actions or nature/quality of actions;
Irresistible Impulse: lacks cap for self-ctrl/free choice. Durham: conduct is product of
mental illness; ALI/MPC: lacked cap to appreciate conduct or conform to law.
INTOXICATION: Voluntary : only defense for specific intent; applies to alcoholics and
addicts, N/A for ‘liquid courage.’ Involuntary:
courage.’  Involuntary: like insanity and is defense to all,
including Strict Liability. D given intoxicant w/o her knowledge; forced to consume
under duress; or by med advice unaware of intoxicating effect.
DIMINISHED CAPACITY: D may claim that bc of his mental defect short of insanity,
he didn’t have mental
men tal state required. Usually limited to specific intent crimes.
DUE PROCESS: D can’t be executed if can’t the nature and purpose of punishment
INFANCY: at CL, <7yo, no liability; <14yo, rebuttable presumption of no liability.
EXCULPATION/JUSTIFICATION
SELF-DEFENSE: Non-deadly Force (NDF): D use reasonably necessary to protect from
imminent unlawful force. Deadly Force (DF): 1) D w/o fault 2) confronted w/ unlawful
force 3) threatened w/ imminent death/injury. Minority —retreated unless in
person’s home; making lawful arrest; or V ictim of rape/robbery; Original aggressor
must withdraw and communicate withdrawal to re-invoke clam of self-defense.
Defense of Others: same as self-defense.
DEFEND PROP: NDF ok. No force to regain possession unless hot pursuit.
CRIME PREVENT: NDF prevent felony/breach of peace. DF prevent dangerous felony.
EFFECTUATE ARREST: Private Person: DF if person harmed actually guilty of offense.
Officer: DF to fleeing felon who threatens death/harm and necessary to stop escape.
DURESS: Threat of imminent death/harm on self/family. No defense for homicide.
NECESSITY: reasonably necessary (good faith alone insufficient) to avoid harm to
society. N/A to homicide or if D originally caused need for necessity.
IMPOSSIBILITY Factual: no defense. Legal: not illegal to do what D intended to do.
MISTAKE OF FACT: specific Intent—
Intent—any mistake. Malice/gen intent —reasonable
mistake only. Strict Liability—
Liability —never.
CONSENT: only if crime requires lack of consent; requires consent voluntarily/freely
given; legally capable; no fraud.
ENTRAPMENT: police originated criminal design and D wasn’t predisposed to
commit act (undercover cop).
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OFFENSES
OFFENSES AGAINST THE PERSON
BATTERY unlawful force; injury/offensive touch. Aggravated Battery: deadly weapon;
seriously bodily harm to child, woman or cop (aka Mayhem).
ASSAULT attempted battery (Specific Intent); reasonable app of threat of harm (Gen
Intent). Aggravated: Assault +1; use of deadly force or intent to rape, maim, kill.
MURDER unlawful killing of human with malice aforethought —intent to kill; intent to
inflict bodily injury; a reckless indifference to unjustifiably high risk to life; or Felony
Murder; + C ausation by D.
FELONY MURDER: killing caused by attempt/commission of an inherently
dangerous/enumerated felony: BARRK (burglary, arson, rob, rape, kidnap)
STATUTORY MODIFICATIONS TO COMMON LAW MURDER
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1  Degree: 1) deliberate & premeditated: dispassionate manner and reflection on
killing; 2) Felony Murder: killed during an enumerated felony (BARRK)
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2  Degree/depraved: any homicide not arising to first. Unjustified. No felony murder
once D reaches temp safety or death of co felon is result of resistance by V or police.
Homicide of Officer: D must know V is cop and V must be on duty.
MANSLAUGHTER Voluntary—
 Voluntary—murder with adequate provocation/heat of passion
without time to cool. Bump down murder if “imperfect self def ensedef ense”—
”—D D was at fault
in starting fight or unreasonably but honestly believed in necessity.
Involuntary—
Involuntary —killing committed with criminal negligence or during commission of
unlawful act not constituting felony murder.
FALSE IMPRISONMENT unlawful confine without valid consent.
KIDNAPPPING unlawful confinement of Victim in secret place Agg: ransom or
purpose of committing other crimes, offensive purpose or child stealing.
SEX OFFENSES
RAPE unlawful carnal knowledge of a woman by a man other than husband, w/o
effective consent/capacity; slightest penetration completes the crime .
STATUTORY RAPE Strict Liability crime—
crime—consent of V/mistake of fact no defense.
ADULTERY/FORNICATION: sex with another other than spouse if validly married
(adultery) or unmarried (fornication) that is open and notorious.
INCEST marriage or sex between closely related.
SEDUCTION inducing, by promise of marriage, an unmarried girl to have sex. MPC
doesn’t require
require chastity or female be unmarried.
BIGAMY Strict Liability—
Liability—marrying one while having another valid, living spouse.
PROPERTY OFFENSES
LARCENY: asportation (taking) and carry away of personal prop of another by
trespass w/ intent to perm deprive.
EMBEZZLEMENT: fraudulent conversion of personal property of another by a person
in lawful possession of that property.
FALSE PRETENSES: obtaining title to personal property of another by intentional
false statement of past/existing fact with intent to defraud.
LARCENY BY TRICK: obtaining  possession to personal property of another by
intentional false statement of fact with intent to defraud.
ROBBERY: taking personal property of another from other’s person/presence by
force/threat of imminent death/injury with intent to permanently deprive.
EXTORTION: obtain property by threats of future harm/exposing info.
RCPT STOLEN PROP: receiving possession and ctrl of stolen personal prop known to
have been stolen by another person with intent to permanently deprive owner.
FORGERY: making/altering written doc so it’s false with intent
with  intent to defraud.
MALICIOUS MISCHIEF: malicious destruction/damage to prop of another.
HABITATION OFFENSES No Specific Intent; reckless disregard —
BURGLARY: break/enter dwelling at night w/ intent to commit felony therein.
ARSON: malicious burning of dwelling of another. Requires damage to structure.
Charring sufficient; scorching insufficient.
JUDICIAL PROCEDURE OFFENSES
PERJURY: intentional taking of false oath to a material matter in judicial proceeding.
SUBORNATION PERJURY: procuring or inducing another to commit perjury.
BRIBERY: corrupt payment/receipt of anything for value for official action.
COMPOUNDING CRIME: agreeing for valuable consideration, not to prosecute or
conceal commission/whereabouts of felon.
MISPRISONMENT OF FELONY: failure to disclose knowledge of commission of
felony/prevent commission of felony.
 CRIMINAL LAW &PROCEDURE
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<<CRIMINAL PROCEDURE >> 4  AMENDMENT
ARREST: Probable cause (PC)+warrant if D home; stop car reqs reasonable suspicion
(RS), includ checkpt and pre-text stops  PC reqd to compel fingerpt/interrog
WARRANT: particularity of place searched/things seized; issued by neutral,
detached judge. Challenge if: affiant intentionally/recklessly included material false
stmt. Apply good faith. Execution: once issued, use timely. Knock & announce (K&A)
purpose, reasonably wait before enter. No K&A if RS that K&A dangerous, futile, or
inhibit investigation. Seize any evid of crim activity discovered, even if not in warrant
(plain view), detain anyone on premises but can’t search unless exception.
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SEARCH/SEIZURE Analysis—1) Is there a 4  am rt? (Govt act & REOP—reqs standing,
ownership/living in premises searched; overnight guest; but not items held public);
2) Valid search warrant? (PC + particularity); 3) Is there an exception? 4) Is there a
good faith defense?  [PAC PAC CHIPS]
Pre-textual Stop: motive is irrelevant as long as RS of legal violation.
Auto Stop: RS that law violated; briefly detain. All passengers can challenge the stop.
Checkpoint: must relate to vehicle specific purpose (DUI chkpt ok bc related to
safety, but drug chkpts insufficiently related). Must use neutral and articulable std.
Plain View: officers legitimately on premises, immediately apparent, & PC it’s
contraband/related. Includes plain smell and binoculars, but not infrared.
Auto Search: If PC —full search, includ guests and their bags, containers reasonably
containing contraband, and trunk. Police can tow and search containers later.
Consent: volun/intellig ent by one w/ apparent right of use and access. Valid even if
individual didn’t have authorization, but police reasonably believed they did.
Caretaker/Emergency: justifies warrantless search if an officer faces
emergency/threatening health/safety of others.
Hot Pursuit/Evanescent Evidence: may follow suspect into dwelling if in pursuit (w/in
15 min); seize evidence likely to disappear (fingernail, but blood needs warrant)
Incident to Arrest: (Gant) search concurrent time & place; ltd to wingspan; may
search car interior if unsecured/reasonable belief evid of offense is in car; no trunk.
Public School: kids in extra-curricular can be searched. Reasonable if moderate
chance of finding; measures reasonably related & search not excessively inclusive.
Stop & Frisk: (Terry) pat down/stop if RS of criminal act supported by articulable
facts; held no longer than necessary to verify suspicion. Protective frisk ok if RS
armed/dangerous but ltd to finding weapons.
Stop vs. Arrest : stop is brief detention, not arrest. Police may develop PC to arrest
based on anything occurring/discovered during stop and/or frisk.
DETENTIONS: 1) may detain from entering home while obtaining a search warrant or
2) if valid warrant of given premises, may detain for duration of search.
BORDERS: routine searches of persons/effects incl cars w/o warrant, PC or RS.
MAIL: govt can open/insect international mail if RS
IMMIGRATION: govt may raid a business to determine citizenship of employees.
WIRETAPPING: if PC; named person; describe w/ particularity subj of convos; ltd
time; terminated when get info; return to ct to show what was intercepted. All
speakers assume risk talking to wired/recording person. Warrant to tap, not wire.
CONFESSIONS
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5  AM: any person in any proceeding may refuse to answer if it’ll incriminate.
Limitations: privilege of self-incrim doesn’t apply to compulsory disclosure of docs;
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must assert at 1  question on subject, including civil trials; protects compelled
testimony, not phys evid (blood, writing, voice, hair sample).
Effect: Police can’t negatively comment on silence, unless D asserts he was unable to
tell his side of story. If invoked silence before Miranda, silence can be used against.
Eliminated if: grant of immunity; no possibility of incrim (SOL); waives privilege.
MIRANDA: must be informed of rts before interrogation for stmts to be admissible.
Invoke Silence: must cease questions, only accused can re-initiate. Police can later
ask of unrelated crimes. Invoke Counsel: umambig stmt; not offense specific; cease
questions until counsel present. Police can ask after break & D must re-invoke again.
Waiver: knowing, voluntary (clear verbal), intelligently made, burden on P.
Custody: doesn’t feel free to leave. Interrogation: likely to elicit incriminating
response. Unsolicited stmts unprotected. Routine questions not interrogation.
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6  AM: rt to counsel to post-charge, show/lineup. Offense specific (can ask of other
crimes) Attach once charges filed. No rt at photo ID/take phys ev (handwrtg/fingpts)
Malpractice: show result would be different; show particular errors.
Waive 6thAm: must be knowing, voluntary & intelligent, totality of circumstances.
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14  AM: requires confession be voluntary.
CO-D CONFESSION: redact all referring to other D; confessing D takes stand and
subject to cross; confession of non-testifying D is used to rebut D’s claim that his
confession obtained by coercion.
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PRETRIAL IDENTIFICATION
DUE PROCESS: D can attack an ID as denying DP if ID is unnecessarily suggestive and
there is a substantial likelihood of misidentification .
REMEDY: exclude in-court ID.
Independent source: if P can show adequate independent source if ID, including
ample opportunity to observe person at time of crime.
Hearing: Govt bears burden proving 1) counsel was present 2) accused waived
counsel or 3) independent source for in court ID. D must prove an alleged DP viol.
EXCLUSION
EXCLUSIONARY RULE prohibits introduction of evidence obtained in violation of D’s
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constitutional rights in a criminal trial (4 , 5 , 6  amendment(s)).
FRUIT OF POISONOUS TREE: evidence derived from illegal govt conduct is excluded.
Exceptions: 1) independent source 2) inevitable discovery 3) D’s intervening acts
Doesn’t Apply to: 1) grand jury/civil proceedings, parole hearings, or administrative
cases, 2) viol of K&A during search warrants; 3) ev seized as result of Miranda viol.
GOOD FAITH defense that govt relied on 1) judicial opinion; 2) state ordinance; 3)
defective search warrant.  Good faith negated if 1) affidavit lacking in PC that no
reasonable officer would rely on it 2) warrant defective/invalid on face 3) affiant lied
or misled judge; 4) judge wholly abandoned judicial role.
HARMLESS ERROR: admission of illegal evidence will overturn conviction unless
government can show beyond a reasonable doubt that error was harmless; never
applies to denial of right to counsel at trial —such error is never harmless.
PRETRIAL PROCEDURES
BAIL: bail issues (refusal to grant/excessive bail) are immediately appealable.
Preventive detention is constitutional; can be set no higher than necessary to assure
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D appears at trial. SC has never held 8  am as provision for bail, but arbitrary denials
of bail will viol Due Process —detainees must have opportunity to prove eligibility.
GRAND JURIES: exclusion N/A to conduct of grand juries. Grand jury Witness may be
compelled to testify based on illegally seized evidence. The proceedings of grand
 juries are secret. D has no right to appear and no right to send in Witnesses.
PRE-TRIAL DISCLOSURE: P—must disclose material, exculpatory evidence; D —
discloses use of alibi or insanity.
TRIAL
TRIAL: right to an unbiased judge (no financial interest in outcome/actual malice).
JURY TRIAL: right if maximum authorized sentence >6mos. If < or up to 6mos, no
constitutional right to jury trial.
JURORS: min 6. If court uses min, verdict must be unanimous. No federally protected
right to unanimous 12-juror verdict. Supreme Court approved the non-unanimous
verdict of 10-2 and 9-3. D has right to have jury pool reflect a fair cross section of the
community BUT no right to have impaneled jury reflect fair cross section.
PREEMPTORY CHALLENGES—a challenge to exclude a prospective juror for whatever
reason. Unconstitutional for Plaintiff or Defendant to exclude based on race/gender.
SELF-REPRESENTATION: D has right to defend himself so long as waiver of counsel is
knowing/intelligent and he’s competent. D can be found mentally competent to
stand trial, yet incompetent to represent himself, trial judge has discretion.
CONFRONTATION: absence of face-to-face confrontation between D and accuser
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doesn’t viol 6  am when preventing confront serves important public purpose and
reliability of the W testimony is otherwise assured (child testify in sex case).
Disruptive D may be removed from court, relinquishing right of confrontation.
PLEAS: court won’t disturb guilty pleas after sentencing. Judge must address D
personally re: nature of charge, max possible penalty/mandatory min, that D has rt
to plead guilty but would waive right to trial; must all be on record.
OVERTURN PLEA If: 1) plea involuntary 2) lack of jurisdiction 3) ineffective assistance
of counsel 4) Prosecutor fails to keep agreed plea bargain.
DEATH PENALTY: Present all relevant mitigating evidence; no automatic Death
Penalty; only jury can determine aggravating factor imposing DP.
DOUBLE JEOPARDY: D can’t be retried for same offense once
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Jeopardy Attaches: jury trial is sworn in, or 1  witness in bench trial is sworn. N/A to
separate sovereigns or in civil trial. D can be tried for battery and later for homicide if
Victim later dies.
Exceptions: hung jury (unable to agree on verdict); mistrial or manifest necessities;
retrial after successful appeal unless insufficient evidence to support verdict; bch of
agreed plea; termination at behest of D on ground not constituting acquittal.