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California Bar Summer 2014 > Crim > Flashcards

Flashcards in Crim Deck (59):




  1. Rule: (1) Trespassory (without consent) taking; (2) and carrying away of (3) tangible personal property; (4) of another; (5) with the intent to permanently deprive the other of his interest in the property.

  2. Trespassory (without consent) taking

    1. Defendant must take possession of victim’s property without the permission of the victim.

    2. For consent to exist, the victim must consent before the taking.

  3. And carrying away of

    1. Move it from original location

    2. Slight movement is sufficient

  4. Tangible personal property

    1. Crime against possession, not ownership. An owner can commit larceny over property he owns if the owner gives possession of it to the victim.

  5. Of another

  6. With the intent to permanently deprive the other of his interest in the property




  1. Rule: (1) The fraudulent conversion; (2) of property of another; (3) by a person in lawful possession of that property.

  2. Fraudulent conversion

    1. Must deal with victim’s property in some manner inconsistent with victim’s grant of possession of the property to the defnedant

  3. Of property of another

  4. By a person in lawful possession of that property

    1. Victim must first voluntarily give the defendant rightful possession of the property that defendant

    2. Often occurs in employment situation

    3. e.g. someone who works at a restaurant works cash register; takes money out of cash register.

      1. If she takes it out of safe - that is larceny

  5. Compared to Larceny

    1. Taking is not trespassery because embezzler is in lawful possession

    2. Embezzler was in trust position, so any use inconsistent with trust position is conversion

    3. Defendant must intend to defraud the owner for an otherwise tortious conversion to become embezzlement.



False Pretenses

  1. Rule: (1) Obtaining title; (2) to the property of another; (3) by an intentional or knowing false statement of past or existing fact; (4) with the intent to defraud the other

  2. Obtaining title

    1. If defendant obtains possession, but not title, defendant is guilty of larceny by trick

    2. Victim must intend to pass title (ownership), not just possession.

  3. To the property of another

  4. By an intentional or knowing false statement of past or existing fact

    1. False or fraudulent statement must cause the owner to part with title

    2. e.g. fraudulent sale

  5. With the intent to defraud the other



Larceny by Trick

  1. Rule: (1) Obtaining possession; (2) of the property of another; (3) by an intentional or knowing false statement of past or existing fact; (4) with the intent to defraud the other

  2. e.g. isn’t this antique clock gorgeous? Made by Benjamin Franklin. If you give me your coin, I will give you the clock. But really built clock in garage.

  3. Taking occurs with the victim’s apparent consent. But the consent is negated because acquired by the defendant’s misrepresentation (“trick”).




  1. Rule: (1) Taking (2) of personal property (3) of another (4) from the other’s person or presence (5) by force or threat of force (6) with the intent to permanently deprive the other of his interest in the property

  2. Taking

  3. Of personal property

  4. Of another

  5. From the other’s person or presence

    1. D must take the property from the victim’s person or presence (wallet, purse) or from the victim’s immediate vicinity (property in the same room or house

  6. By force or threat of force of immediate bodily harm

    1. D use force or threaten immediate bodily harm to accomplish the taking (or immediate reacquire it if victim momentarily resists and retakes possession briefly).

    2. Threats of future bodily harm or immediate or later non-bodily harm are not sufficient robbery (but would be sufficient for extortion).

  7. With the intent to permanently deprive the other of his interest in the property



Receipt of Stolen Property

Rule: (1) Defendant receives possession and control of stolen property; (2) knows it was stolen by another person or that supplier did not have the right to property; (3) with intent to permanently deprive true owner of their property.



Common Law Burglary 

  1. Rule: (1) Breaking and (2) entering (3) of the protected structure (4) of another (5) with the intent to commit a felony therein.

  2. Breaking and

    1. Use of any force, however slight to gain entry without consent

    2. Majority allows some use of fraud (constructive breaking) to gain entry.

  3. Entering

    1. Entry obtained by fraud or threat is constructive breaking

    2. Some portion of D’s body (or some object defendant uses to commit the felony inside - a hook to steal a purse, etc.) must enter the structure

  4. Of the protected structure

    1. All buildings within the curtilage of the house

    2. At common law, it had to be a dwelling of another. Today, most states extend burglary to include all structures (residential, commercial, industrial).

  5. Of another

    1. Must be without consent of the rightful possessor

    2. Crime against possession so the structure must be in the rightful possession of another.

    3. Landlord can burglarize his own unit if the unit is rented to a tenant.

  6. At common law, entry had to occur at night.

    1. Today, most states have eliminated the night time requirement.

  7. With the intent to commit a felony therein

    1. Felony need never be committed

    2. Intent to commit a felony must exist at the time of the entry occurs.

    3. A later formed intent to steal after entry does not qualify.




  1. Rule: The burning of a protected structure of another with malice.

  2. Burning

    1. Burning requires charring not scorching; reducing thing to charcoal

    2. Must be charring of some part of the structure (wall, ceiling, beams, etc.) caused by fire.

    3. Charring of non-fixtures (furniture, paintings) is not sufficient.

  3. Protected Structure

    1. At common law, the structure had to be the dwelling house of another. Today, most states protect all structures (residential, industrial, commercial, etc.)

    2. Structure must be in the rightful possession of another when burned. Thus, a landlord who burns a house rented to a tenant can commit arson.

  4. With Malice

    1. D is guilty of arson if committed with

      1. Intent; or

      2. Reckless disregard

    2. Cannot be accidental

  5. Arson of one’s own dwelling is a crime by statute of the purpose is to:

    1. Collect the insurance (arson with intent to defraud an insurer) or

    2. The malicious burning of one’s own dwelling in a city or town or near other houses so as to create a danger to them (houseburning)



Criminal Assault

  1. Rule: (1) The attempt to commit a battery; (2) or intentional creation by other than mere words of a reasonable apprehension in the mind of the victim of imminent bodily harm

  2. The attempt to commit a battery; or

    1. Specific intent crime

  3. Intentional creation by other than mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm

    1. Not specific intent crime



Criminal Battery 

  1. Rule: (1) The unlawful application of direct or indirect force; (2) to the person of another; (3) resulting in; (4) bodily injury or an offensive touching.

  2. Aggravated Battery (adds one of the following elements)

    1. Use of a deadly weapon

    2. Serious bodily injury

    3. Victim is a child, woman, or police officer




Rule: Dismemberment of disablement of body part






  1. Rule: (1) Confinement of a person; (2) that also involves either (a) movement of the victim or (b) concealment of the victim in a secret place.

  2. Only some movement is required

  3. Aggravated kidnapping if purpose is:

    1. Ransom

    2. To commit other crimes

    3. Offensive (Sexual offense)

    4. Child stealing

      1. Leading, enticing, or detaining a child with the intent to keep or conceal the child from a parent or guardian

  4. False Imprisonment: no movement or concealment, but restriction of movement




  1. Common Law Rape

    1. Rule: (1) Unlawful (2) carnal knowledge; (3) of a woman; (4) by a man who is not her husband.

    2. Consent ineffective if by:

      1. Force

      2. Threat

      3. Incapable of consent

        • Drugs

        • Alcohol

        • Mental capacity

        • Unconsciousness

    3. By a man who is not her husband

      1. This was eliminated by many modern statutes

  2. Statutory Rape

    1. Rule: Sexual relations with a minor under a specified statutory age

    2. Strict liability crime

    3. All that matters is age of victim, not whether D knows victim’s age



Common Law (Second Degree) Murder

  1. Rule: the unlawful killing of a human being with malice aforethought

  2. Unlawful killing of a human being

    1. Without justification (see self defense discussion below, if applicable)

    2. Causation implicit unless defendant not the direct killer

      • Foreseeable from defendant’s conduct that victim would die

      • Defendant's act must be the proximate cause of the death

  3. With malice aforethought (list all 4 types; but only discuss ones that apply)

    1. Intent to kill

      • May be inferred from the killing

      • Intent to kill someone, even if not particular victim

    2. Intent to inflict great bodily injury

    3. Reckless indifference to the unjustifiable high risk to human life (abandoned and malignant heart); OR

    4. Felony killing (killing committed in the course of the commission of an inherently dangerous felony)

      • Felony must be inherently dangerous

        1. Burglary, arson, rape, robbery and kidnapping (BARRK)

        2. Some states might include other felonies

        3. Defense to the felony is a defense to a felony murder charge

      • Felony in the felony murder must be independent of killing

      • Vicarious Liability: If co-felon is killed by victim or police

        1. Majority view: not felony-murder

        2. Minority view: this is felony-murder

      • Proximate Cause: Felony must be the proximate cause of the homicide (the homicide must be a foreseeable result of the felony)



First Degree Murder

  1. All murder is second degree murder unless committed with premeditation and deliberation

    1. Premeditation; and

      • Premeditated: the intent to kill is premeditated if the defendant had time (even for a brief few seconds) to think about killing the victim before doing so

    2. Deliberation

      • D acted in a calm and cool frame of mind (“cold blooded”).

      • If D was angry, excited, or suffering any type of mental disturbance, that will likely lead to finding the killing was not deliberate.

    3. 1st degree felony-murder: (Felony Murder Rule)

      • A murder that satisfies the felony murder rule and is based one of the specified in the state’s first degree murder statute (usually BARRK felonies) will be sufficient for first degree murder.

      • Highly dangerous; on enumerated list:

        1. Burglary

        2. Arson

        3. Robbery

        4. Rape

        5. Kidnapping

    4. Intent to inflict great bodily harm murder or depraved heart murder are at most second degree murder



Voluntary Manslaughter

Rule: (1) The intentional killing of a human being; (2) with adequate provocation. (homicide with malice but with mitigation (and no justification or excuse))

  1. The intentional killing of a human being

  2. With adequate provocation

    1. Provocation would arose sudden and intense passion in the mind of an ordinary person so as to cause loss of self-control (objective)

      1. Modern common law jurisdictions: mere words can be adequate provocation if so determined by a jury

      2. Objective passion: the provocation must be one that would have caused a reasonable person to lose self-control and a reasonable person would have not have cooled off in the time lapse between the provocation and the time of the killing.

    2. Defendant is in fact provoked (subjective)

      1. Subjective passion: the defendant must have been actually provoked sufficient to losing self-control and did not cool off before killing the victim

    3. Insufficient time for passions of a reasonable person to cool (objective); and

    4. Defendant in fact did not cool off (subjective)

  3. Requires intent to kill someone

    1. Even if not particular victim (transferred intent applies)



Involuntary Manslaughter

  1. Homicide with malice and no justification or excuse

    1. A homicide committed without malice under one of the three following circumstances

      1. Intent to inflict slight bodily injury: Defendant kills victim with no intent to kill or seriously injure, but did have intent to inflict some slight bodily injury. This is typically a non-aggravated (no weapon) battery or assault that causes death of victim.

      2. Criminal negligence: Defendant kills victim while acting in a more than ordinary negligent manner but the Defendant’s conduct does not present a high enough risk of death for depraved heart recklessness. Defendant’s conduct is a gross deviation from the standard of care that a reasonable person observe.

      3. Misdemeanor-Manslaughter: Defendant kills while committing a non-inherently dangerous felony (i.e. felony not sufficient for felony murder rule) or a malum in se (inherently wrongful) crime as opposed to a malum prohibitum (wrongful only because prohibited by statute) crime.




  1. Rule: (1) An intent to commit a specific crime (which may be inferred from conduct), and (2) an overt act in furtherance of that crime.

  2. Perpetration

    1. Must do more than merely prepare, must take a substantial step toward its commission or come dangerously to completing the intended crime

  3. With the intent to commit the crime

    1. D must have specific intent to commit the target crime

    2. If no independent evidence of intent, infer from conduct

  4. Defenses

    1. Merger: Attempt merges into the target crime so a D who actually commits the intended crime cannot be convicted and punished for both attempt and intended crime

    2. Impossibility: If the D does not succeed in committing the target crime, it may be because the target crime was either legally or factually impossible.

      1. Legal impossibility is a good defense; factual defense is not

      2. Legal impossibility (good defense): exists when the acts defendant intends to commit are not a crime in the jurisdiction.

        • eg. defendant intends to hunt where he believes it is prohibited, but it is not prohibited there

      3. Factual impossibility (not a defense): exists when the acts defendant intended to commit would be a crime, if the facts were as defendant believed




  1. Rule: (1) Defendant incites, counsels, advises, induces, urges, or commands, another person to commit a crime (2) with the intent that the crime be committed by that person 

  2. Vicarious Liability: if the party solicited actually commits the requested crime, the solicitor will also be liable for the crime



Accomplice Liability

  1. Rule: (1) Defendant encourages or assists; (2) another person who commits a crime; (3) with the intent to promote or facilitate the commission of the crime.

  2. Defendant is liable for each of the crimes that is foreseeable

    1. Discuss foreseeability of each crime

  3. General agreement is not intent

    1. Knowledge is is generally not intent unless Defendant does more

  4. Silent approval is not sufficient

  5. Only applies to accomplices who encourage or assist in the crime

    1. Not those who help after the crime has been committed

    2. Accessory After the Fact: One who, with the intent to help a felon escape or avoid arrest or trial, receives, relieves, or assists a known felon after the felony has been completed.




  1. Rule: (1) An agreement between or among two or more persons to commit a crime, (2) in intent to enter into the agreement and; (3) an intent to achieve the unlawful objective of the agreement.

  2. Liable for all acts of co-conspirators that are foreseeable “in furtherance” of conspiracy.

    1. “In furtherance” means necessary to accomplish goal.

  3. All co-conspirators are liable for any acts of another co-conspirator that are foreseeable and in furtherance of the conspiracy

    1. Discuss foreseeability of each act

  4. Agreement

    1. Can exist by express words or it can be implied by conduct.

    2. Co-conspirators need not meet or even know each other exist; so long as they are working toward a common unlawful goal an agreement exists.

  5. With Another Party

    1. Majority rule requires all conspirators to agree to commit the unlawful objective.

      1. An agreement with an undercover police officer who knowly feigns agreement is not a conspiracy.

    2. Minority rule (MPC)

      1. One guilty mind is enough for conspiracy if the guilty mind believed the other party was actually agreeing to commit the unlawful purpose.

  6. Unlawful Objective

    1. Crime or fraud

  7. Overt Act:

    1. At common law, only the agreement was required.

    2. Today, most states also require that one of the conspirators perform an overt act in furtherance of the unlawful purpose.

      1. Just about anything (buying supplies, planning escape route, etc.) will qualify as an overt act so not really testable on the exam.

  8. Vicarious Liability:

    1. All conspirators are liable for any crime committed by any other conspirator so long as the crime was (1) reasonably foreseeable and (2) in furtherance of the conspiracy.



Accessory After the Fact

  1. The one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial or conviction.

  2. Mere comfort is not sufficient, unless it is with the purpose of the help the felon escape



Self Defense

  1. A person may use deadly force if:

    1. He is without fault (did not initiate the assault or provocation)

    2. He is confronted with unlawful force; and

    3. He is threatened with immediate death or great bodily harm

      1. Must reasonably believe he is threatened with imminent death or great bodily harm

      2. May use deadly force to protect against an imminent deadly attack. Deadly force must be reasonable and necessary to repel the attacker

  2. Majority rule: No duty to retreat

    1. The defendant need not retreat before using deadly force, unless defendant is the initial aggressor, and safe retreat is available

  3. Minority rule: retreat only if it can be done in complete safety, and does not require retreat from the home or business

    1. Defendant must retreat before using deadly force if safe retreat available, unless Defendant in his/her home, a police officer, or victim of a violent felony.



Defense of Others

  1. Defendant must reasonably believe that the other person is legally entitled to use force and may only use reasonable force to prevent it.

    1. Majority Rule: Reasonable mistake is acceptable

    2. Minority Rule: Defendant can use no more force than the person they are defending (steps into the shoes fo the person defended)

  2. Discuss whether the other person could have asserted self-defense using the elements of self-defense




  1. M’Naughten Rule or Right/Wrong Test

    1. A disease of the mind caused a defect of reason such that the defendant lacked the ability to either know the wrongfulness of his actions or understand the nature and quality of his actions

    2. Note: focus on mental impairment, not physical ability.

  2. Irresistible Impulse

    1. Because of mental illness, a defendant is unable to control his actions or conform his conduct to the law

    2. Note: focus is on his volitional ability, not cognitive. Need not be sudden event.

  3. Durham Rule (only adopted in one state)

    1. But for causation

    2. If the crime was a product of the mental disease or defect, this requires an acquittal

  4. ALI/MPC Test

    1. As a result of mental disease, defendant lacked substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the law

    2. Note focus on both volitional (conform conduct) and cognitive (appreciate wrongfulness)




  1. If the defendant is intoxicated (alcohol, illegal or legal drugs) at the time of the crime, the intoxication may excuse criminal liability

  2. Voluntary

    1. Exists when the defendant voluntarily and knowingly consumes an intoxicating substance.

    2. Not a defense to general intent or malice crimes.

      1. Only if the defendant is so intoxicated he cannot form the specific intent required for the crime.

    3. It is a defense to specific intent crimes, including

      1. First degree murder

        • Can preclude a finding of deliberation if the D is charged with First Degree Murder

      2. Burglary

      3. Larceny

      4. Robbery

      5. Attempt

  3. Involuntary

    1. Exists when the defendant involuntarily (forced to consume) or unknowingly (voluntarily consume without knowledge substance consumed was an intoxicant). Involuntary intoxication is a defense to all crimes if the intoxication renders the defendant “insane” under the applicable test.

    2. Defense to both general and specific intent crimes.

    3. It may be treated as insanity, in which case you discuss the types of insanity defenses



Exclusionary Rule

  1. Rule: A remedy of American constitutional procedure whereby someone who has been the victim of an illegal search or a coerced confession can (among other remedies) have the product of that illegal search or that coerced statement excluded from any subsequent criminal prosecution

    1. Limitations on Exclusion

      1. Grand jury proceedings

        1. A grand jury witness may be compelled to testify based on illegally seized evidence

      2. Civil proceedings

      3. Parole revocation hearings

      4. Impeachment purposes**

        1. Since 1980, all illegally seized evidence may be admitted to impeach the credibility of the defendant’s testimony

          • Evidence violative of Miranda can be used to impeach

        2. Only the defendant’s trial testimony may be impeached - not the testimony of other defense witnesses

      5. Violations of the knock and announce rule in the execution of warrants (police must knock and announce their presence, even when they have a warrant)



Fruit of the Poisonous Tree

  1. Rule: The doctrine will not only exclude illegally seized evidence, but will also exclude all evidence obtained or derived from police illegality.

  2. Does not apply to Miranda violations unless the police act in bad faith in obtaining such information

  3. There are three ways that the government can break the chain between an original, unlawful police action and some supposedly derived piece of evidence (the three i’s)

    1. The government could that it had an independent source for that evidence, independent of that original police activity

    2. Inevitable discovery: the police would have inevitably discovered the evidence anyway

    3. Intervening acts of free will on the part of the defendant



Exclusionary Rule and Convictions

  1. A conviction will not necessarily be overturned because improperly obtained evidence was admitted at trial 

  2. On appeal, a court will apply the Harmless Error test: a conviction will be upheld if the conviction would have resulted despite the improper evidence



Arrests and Detentions

  1. An arrest must be based on probable cause

  2. Arrest warrants are generally not required before arresting someone in a public place

  3. Non-emergency arrest of an individual in his home does require an arrest warrant 

  4. Station house detention: the police need probable cause to arrest you and compel you to come to the police station either for fingerprinting or interrogation (but not to ask you to do so)



Investigatory Detentions: Terry Stops

  1. The police have the authority to briefly detain a person even if they lack probable cause to arrest. In order to make such a stop, the police must have reasonable suspicion supported by articulable facts of criminal activity - a hunch is never enough

  2. Whether the police have reasonable suspicion depends on the totality of the circumstances

  3. **Automobile stops: the police may stop a car if they have at least reasonable suspicion that the law has been violated

    1. Exception: checkpoint roadblocks (may stop every car if neutrally applied for DUI and border crossings, but not for drugs)

    2. Police may have ulterior motive for stopping a car so long as stop itself is valud

  4. Traffic stops and police dogs: During routine traffic stops, a sniff is not a search so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries

    1. SCOTUS in 2013: during such a traffic stop, a dog alert to the presence of drugs can form the basis for probable cause for a search

    2. BUT SCOTUS in 2013: Police (without probable cause) cannot use a drug sniffing dog directly outside the home of a suspected drug dealer



Search and Seizure: Governmental Conduct

  1. Governmental Conduct

    1. The publicly paid police on or off duty

    2. Any private individual acting at the direction of the public police

      1. e.g. someone is asked by police to search roommate’s room

      2. Privately paid police actions do not constitute governmental conduct unless they are deputized with the power to arrest you

      3. Examples of privately paid police

        • Store security guards

        • Subdivision police

        • Campus police



Search and Seizure: Reasonable Expectation of Privacy (Standing)

  1. Reasonable Expectation of Privacy (Standing)

    1. Automatic categories of standing, i.e. ability to object to the search

      1. You own the premises searched

      2. You live on the premises searched, whether you have ownership interest or not

        • e.g. grandchild living at grandparents’ home

      3. Overnight guests

    2. An important sometimes category of standing: You own the property seized

      1. If you own the property seized, you have standing only if you have a reasonable expectation of privacy in the item or area searched

    3. No standing categories

      1. You have no expectation of privacy, and therefore no standing for anything that you hold out to the public everyday.

      2. No right to privacy when it comes to the seizure of:

        • Sound of your voice

        • Style of handwriting

        • Paint on the outside of your car

        • Account records held by a bank

        • Monitoring the location of your car on a public street or in your driveway

          1. But SCOTUS in 2012: installation of a GPS on a suspect’s car constitutes a search within the Fourth Amendment

        • Anything that can be seen across the open fields

        • Anything that can be seen from flying over in the public airspace

        • The odors emanating from your luggage

        • Your garbage set out on the curb for collection



Search and Seizure: Did the police have a valid search warrant?

  1. Rule: There are two core requirements for a valid search warrant: probable cause and particularity

    1. Standard for probable cause: a fair probability that contraband or evidence of a crime will be found in the area searched

    2. Particularity: the warrant must state with particularity the place to be searched and the things to be seized

    3. Warrants and the use of informants

      • If an officer’s affidavit or probable cause is based on informant information, its sufficiency is determined by the totality of the circumstances

      • An informant’s credibility and basis of knowledge are all relevant factors in making the determination

      • A valid warrant can be based in part on an informant’s tip even though that informant is anonymous

        1. Cannot be solely based on an anonymous tip unless it can be independently confirmed

  2. “No Knock” entry permitted in the execution of search warrants if exigent circumstances exist

    1. An officer need not knock and announce if knocking and announcing would be dangerous, futile, or inhibit the investigation

    2. Biggest fear of inhibiting the investigation: destruction of evidence



Search and Seizure: If the warrant is not valid, does the officer's good faith defense save the defective search warrant?


  1. If the warrant is not valid, does an officer’s good faith defense save the defective search warrant?

    1. The general rule is that an officer’s good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements

    2. For exceptions to a good faith reliance on a defective search warrant

      1. Affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied on it

      2. Affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it

      3. The police officer or prosecutor lied to or misled the magistrate when seeking the warrant

      4. If the magistrate is biased, and therefore has wholly abandoned his or her neutrality



Exceptions to the warrant requirement: Search incident to arrest

  1. Search incident to arrest

    1. The arrest must be lawful. If the arrest is unlawful then the search is unlawful

    2. The arrest and search must be contemporaneous in time and place

    3. Geographic scope limitation: Person and the areas within the person’s wingspan may be searched

    4. Police can take DNA cheek swab after an arrest for a serious crime without a conviction

    5. **Search incident to arrest and automobiles: the police may search the interior of the auto (but not the trunk) only if:

      • The arrestee is unsecured and still may gain access to the interior of the vehicle; or

      • The police reasonably believe that the evidence of the offense for which the person was arrested may be found in the vehicle

      • **Most states recognize the community caretaker exception (aka emergency aid exception) if an officer faces an emergency that threatens the health or safety of the individual or the public



Exception to the warrant requirement: automobile 

  1. Automobile exception

    1. In order for the police to search anything or anybody and fall under the automobile exception they must have probable cause

    2. If before searching anything or anybody the police have probable cause then they can search the entire car.

      • This includes the entire interior compartment and the trunk

      • If there is probable cause, the police may open without a warrant any package, luggage or other container which could reasonably contain the item they had probable cause to look for whether that package, luggage, or other container is owned by the passenger or the driver.

      • The probable cause necessary to justify the warrantless search of an auto under the automobile exception can arise after the car stopped, but the probable cause must arise before anything or anybody is searched.



Exceptions to the warrant requirement: plain view

  1. To constitute a valid plain view seizure the police officer must be legitimately present at the location where he or she does the viewing of the item seized

  2. It must be immediately apparent that the item is contraband or a fruit of a crime



Exception to the warrant requirement: consent

  1. For consent to be valid, the consent must be voluntary

  2. Police saying that they have a warrant negates consent

  3. Third party consent

    • Rule: where two or more people have an equal right to use a piece of property, either can consent to its warrantless search. However, if both people are present and one person consents to the search and the other does not consent, then the one who does not consent controls



Exception to the warrant requirement: stop and frisk

  1. A Terry stop is a brief detention for the purpose of investigating suspicious conduct

    • Legal standard for stopping: reasonable suspicion

      1. Less than probable cause standard

  2. A Terry frisk is a pat down of the outer clothing and body to check for weapons

    • If officer reasonably believes by the plain feel that something is a weapon or contraband, it is admissible

    • If probable cause arises during an investigatory stop, the detention can become an arrest and the officer could then conduct a full search incident to that search

    • Auto stops: If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may (1) conduct a frisk of the suspect person, and (2) may search the vehicle so long as it is limited to the areas in which a weapon may be placed



Exception to the warrant requirement: Evanescent (fleeting) Evidence, Hot Pursuit, and Special Needs Searches



  1. Evanescent evidence is evidence that might disappear quickly if the police took the time to get a warrant

    • eg. a police officer can scrape under a suspect’s fingernails without getting a warrant because if you took the time to get a warrant the defendant might go wash his hands

    • BUT SCOTUS in 2013: Officers need to get a warrant before taking a blood sample for a DUI arrest (if it is practical to do so)

      1. No longer per se exigency

  2. Hot pursuit of a fleeing felon: if the police are not within 15 minutes behind the fleeing felon, it is not a valid hot pursuit exception

    • If the police are truly in hot pursuit they can enter anyone’s home without a warrant and any evidence they see in plain view will be admissible

  3. Inventory searches: before incarceration of an arrestee, the police may search (1) the arrestee’s personable belongings and/or (2) the arrestee’s entire vehicle (including closed containers)

  4. Public school searches

    • Public school children engaged in extracurricular activities can be randomly drug tested

    • Warrantless searches of public school children’s affects, such as backpacks and/or purses is permissible to investigate violations of school rules

    • A school search will be held to be reasonable only if:

      1. It offers a moderate chance of finding evidence of wrongdoing; and

      2. The measures adopted to carry out the search are reasonably related to the objectives of the search

      3. The search is not excessively intrusive



Wiretapping and Eavesdropping

  1. All wiretapping and eavesdropping requires a warrant

  2. Exceptions to the eavesdropping rule: Unreliable ear and uninvited ear (no warrant necessary)

    1. Unreliable ear: everybody in this society assumes the risk that the person to whom he is speaking will either consent to the government monitoring the conversation or will be wired and therefore has no Fourth Amendment objection on the basis that it was a warrantless search

    2. Uninvited ear: A speaker has no Fourth Amendment right if she makes no attempt to keep the conversation private



Miranda Warnings

  1. When Miranda warnings are required, the suspect must be given the following information:

    • You have the right to remain silent

    • Anything you say can be used against you in court

    • You have the right to an attorney

    • If you can’t afford an attorney, one will be appointed for you if you so desire

  2. The warnings need not be verbatim, so long as the substance of the warnings is conveyed

  3. The trigger for required Miranda warnings: custodial interrogation

    • Custody

      • Legal standard for custody: you are in custody if, at the time of the interrogation, a reasonable person would not feel free to leave (objective test)

        • In making this determination, a court will determine whether the situation presents the same inherently coercive pressure as a station house questioning

        • The not free to leave standard covers being in a police car or being in jail, but you could also be in your home or in a hospital bed

    • In 1984, SCOTUS said that probation interviews and routine traffic stops are not custodial

  4. ​Generally applies only to interrogation by the publicly paid police

    • ​​Does not apply where the interrogation is by an informant who the defendant does not know is working for the police 



Miranda Waiver

  1. A Miranda waiver must be knowing and voluntary

  2. Courts will employ a totality of the circumstances test in making this determination



Invoking Miranda

  1. Invoking the right to remain silent

    • Invoking the right to silence must be unambiguous

    • The police may reinitiate questioning after the defendant has invoked the right to silence if they wait a significant amount of time, defendant is re-Mirandized, and the questions are limited to a crime that was not the subject of the earlier questioning

    • Sitting in silence is not invoking silence

  2. Invoking the right to counsel

    • The request for counsel can be invoked only by an unambiguous request

    • If the accused invokes his right to counsel, all questions must cease until (1) the accused is given an attorney; or (2) the accused initiates further questioning

    • However, if there is a break in custody (e.g. being released into the general prison population, the police can come back and ask defendant to waive his Miranda rights after 14 days  



Right to Counsel (5th and 6th Amendments)

  1. The Court-created Fifth Amendment right to counsel arises when a subject invokes his Miranda rights and requests an attorney

  2. The Fifth Amendment Right to counsel is not offense specific and thus applies to the entire process of custodial police interrogation

  3. Conversely, the Sixth Amendment Right to Counsel is offense specific, meaning counsel would only need to be present if the defendant were being asked questions about the specific case for which the defendant has retained counsel

  4. BUT 2009 in SCOTUS: When a defendant has not specifically requested counsel, and has merely been given appointed counsel (e.g. at a preliminary hearing), the police can come back and ask defendant to waive his Sixth Amendment right to counsel and talk to them about the crime for which he was charged.



Pretrial Identification

  1. There are two substantive bases on which you can attack a pretrial identification

    • Denial of the right to counsel

      1. Post-charge line-ups (standing in a line) and show-ups (one-on-one) give rise to the right to counsel

      2. **But note: there is no right to counsel when the police go out to show the victim or witness photographs

      3. Other stages where there is no right to counsel:

        • Taking of blood samples

        • Taking of handwriting samples

        • Pre-charge lineups

        • Brief recess during defendant’s testimony at trial

        • Parole and probation revocation proceedings

        • The taking of fingerprints

    • Denial of due process

      1. Certain pretrial identification techniques are so unnecessarily suggestive and so substantially likely to produce a misidentification that they deny due process of law

    • The remedy for an unconstitutional pre-trial identification is to exclude the in-court identification unless the state can show that it had an adequate independent source for that in-court identification (independent of that bad line-up).

    1. The most common independent source is that the victim or the witness had adequate opportunity to observe the defendant that the time of the crime



Pre-Trial Procedures

  1. Bail

    • Bail issues are immediately appealable

    • Preventing detention is constitutional

  2. Grand Juries

  • Exclusion does not apply to the conduct of grand juries. Accordingly, a grand jury witness may be compelled to testify based on illegally seized evidence
  • The proceedings of grand juries are secret. Defendant has no right to appear and no right to send witnesses



Prosecutorial duty to disclose exculpatory information

  1. A prosecutor’s failure to disclose evidence, whether willful or inadvertent, violate the Due Process Clause and may be grounds for reversal of a conviction

  2. A failure to disclose exculpatory information will constitute grounds for reversing a conviction if:

    • The evidence is favorable to defendant, and

    • Prejudice has resulted, meaning there is a reasonable probability that the result would have been different had the information been disclosed.



Right to unbiased judge

Bias means having a financial interest in the outcome of the case or some actual malice against the defendant



Right to jury trial 

  1. The constitutional right to jury trial attaches any time the defendant is tried to an offense for which the maximum authorized sentence exceeds 6 months. If the maximum authorized sentence is up to or including 6 months, there is no constitutional right to a jury.

  2. Number and unanimity of jurors

    • The minimum number of jurors permissible is 6. If a court uses this minimum number of jurors, the verdict must be unanimous.

    • There is no federally protected constitutional right to a unanimous twelve juror verdict. The Supreme Court has approved the non-unanimous verdicts of 10-2 and 9-3.

  3. The cross sectional requirement

    • You have the right to have the jury pool reflect a fair cross-section of the community.

    • BUT no right to have the empanelled reflect a fair cross section of the community

  4. The use of peremptory challenges

    • A peremptory challenge is a challenge to exclude a prospective juror for any reason whatsoever

    • BUT it is unconstitutional for the prosecutor or the defense to exercise peremptory challenges to exclude from the jury prospective jurors on account of



6th Amendment Right to Counsel

  1. A criminal defendant's right to counsel applies to all critical stages of a prosecution, including trial, after formal proceedings have begun. The right is violated when the police deliberately elicit an incriminating statement from a defendant without first obtaining a waiver

    • Not a violation to place informant in a cell with a dfendant

    • But violation for the informant to take some action, beyond mere listening, designed to deliberate elicit incriminating remarks

  2. The absence of face-to-face confrontation between the defendant and accuser does not violate the Sixth Amendment when preventing such confrontation serves an important public purpose and the reliability of the witness testimony is otherwise assured

    • e.g. insulating a child of sex abuse testify in camera

  3. A defendant who is disruptive may be removed from the courtroom, thereby relinquishing his right of confrontation

  4. Co-Defendant confesses: 6th Amendment Confrontation Clause (tested on 75% of essays)

    • A co-defendant’s confessions is admissible only if

      • Statements concerning the other party are redacted or

      • The co-defendant is subject to cross examination



Guilty Pleas and Plea Bargaining

  1. General Rule: A court will not disturb guilty pleas after sentencing

  2. If a defendant pleads guilty, the judge must specifically address the defendant on the record about the following

    • The nature of the charge; and

    • The judge must tell the defendant the maximum authorized penalty and any mandatory minimum penalty; and

    • The judge must tell him that he has a right to plead not guilty and to demand a trial; and

    • All of this must be on the record

  3. Four good bases for withdrawing a guilty plea after sentencing

    • The plea was involuntary (some mistakes in plea taking ceremony)

      • A plea is not involuntary merely because it was entered in response to the prosecution’s threat to charge the defendant with a more serious crime.

    • Lack of jurisdiction;

    • Ineffective assistance of counsel;

    • Failure of the prosecutor to keep agreed-upon plea bargain



Death Penalty 

  • Any death penalty statute that does not give the defendant a chance to present mitigating facts and circumstances is unconstitutional

  • There can be no automatic category for imposition of a death penalty

  • The state may not be statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the death penalty statute is unconstitutional

  • Only a jury - not a judge - may determine the aggravating factors justifying imposition of the death penalty



Double Jeopardy

  1. Jeopardy attaches in a jury trial when a jury is sworn. In a bench trial, jeopardy attaches when the first witness is sworn.

  2. Jeopardy does not generally attach when the proceedings are civil.

    • e.g. it is ok to have a criminal prosecution for tax fraud, and then a civil proceeding to collect the back taxes.

  3. Exceptions permitting retrial

    • Jury is unable to agree upon verdict

    • Mistrials for manifest necessity medical emergencies

    • A retrial after a successful appeal is not a double jeopardy

    • But upon retrial after a successful appeal, the defendant cannot be retried for a more serious offense that he was convicted of at the first trial.

      • e.g. manslaughter/murder. If the defendant is convicted of manslaughter at the first trial, but then successfully appeals to get a new trial, the most serious offense defendant could not be tried for is manslaughter

      • Breach of an agreed upon plea bargain by the defendant.

      • Rule: when the defendant breaches a plea bargain agreement, his plea and sentence can be withdrawn and the original charges reinstated.

  4. Two crimes do not constitute the same offense if each crimes requires proof of an additional element that the other does not.

    • Lesser included offenses: being put in jeopardy for a greater offense bars retrial for any lesser included offense.

      • e.g. the crime of robbery includes the two lesser crimes of larceny and assault. If you are tried for robbery, you cannot be retried for the lesser included offense of larceny. Similarly, if you are the first put in jeopardy for the lesser included offense (larceny), you cannot later be retried for the greater offense (robbery).

  5. Separate Sovereigns

    • Double jeopardy bars retrial for the same offense by the same sovereign.

    • State and federal governments are not the same sovereign



Fifth Amendment Privilege Against Compelled Testimony 

  1. The Fifth Amendment Privilege against self-incrimination can be asserted by anyone in any type of case. Anyone asked a question under oath in any kind of case, wherein the response might tend to incriminate him is entitled to a Fifth Amendment privilege.

    • You must assert that privilege the first time the question is asked or you will have waived your Fifth Amendment privilege for all subsequent criminal prosecutions

    • The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution

    • If the individual responds to the questions instead of claiming the privilege during a civil proceeding, he cannot later bar that evidence on Fifth Amendment grounds.



Scope of the Fifth Amendment Right Against Compelled Testimony

  1. The Fifth Amendment protects citizens from compelled testimony

  2. The Fifth Amendment does not protect citizens from having the government use physical evidence in ways to incriminate them

  3. Examples of non-testimonial evidence that the prosecution can compel a person to produce:

    • Blood sample

    • Handwriting sample

    • Voice sample

    • Hair sample



Fifth Amendment and prosecutorial conduct

  • It is unconstitutional for the prosecutor to make a negative comment on the defendant's failure to testify or on a defendant's choosing to remain silent after being given Miranda warnings
  • Exception: the prosecutor can comment on the defendant's failure to take the stand when the comment is in response to defense counsel’s assertion that defendant was not allowed to explain his side of the story

  • SCOTUS in 2013: if a suspect chooses to remain silent before the police read Miranda rights, the silence can be used against him in court.

  • When a prosecutor impermissibly comments on a defendant’s silence, the harmless error test applies, and thus, the prosecutor’s conduct may not be fatal to an otherwise sound conviction




Fifth Amendment privilege can be eliminated

  1. Under grant of immunity

  2. No possibility of incrimination

    • e.g. if the statute of limitations has run on the underlying crime, you are not entitled to Fifth Amendment Privilege

  3. Waiver

    • The criminal defendant who takes the stand waives the Fifth Amendment privilege as to all legitimate subjects of cross examination