Crime Flashcards
(740 cards)
1
Q
CL Theft/ Larceny
A
Trespassory Asportation of personal, tangible property in another’s possession with intent to permanently deprive person of the property.
2
Q
Modern Criminal Codes: extend Larceny offenses
A
beyond personal, tangible property to include intangible property and services provided by victim.
3
Q
Money is property covered by modern theft sstatutes;
A
+ Adam intended to steal the money,
intent requirement is satisfied for larceny
= Adam is guilty of theft.
4
Q
Person takes property another has accidentally lost
A
+ intends to maintain control over it and not return it
== Person is guilty of larceny.
5
Q
Finder’s keeper
A
is not always true
6
Q
If Adam was aware that Diana dropped it and had sufficient information to locate hers and return it:
A
When it took the cash and spent it; he committed larceny.
7
Q
If Adam had no identification on whose wallet is:
A
no larceny.
8
Q
If person finds stranger’s property
A
+ no person to believe owner can be located then,
== Person not guilty of larceny.
9
Q
Person didn’t intend to permanently deprive owner of the property when he initially exercised control
A
not larceny.
10
Q
If Adam tried to return it to the stranger, but the stranger has gone, then,
A
Adam spent the money inside–> not larceny.
11
Q
Larceny by trick
A
person makes falsehold or misrepresentation to property owner to gain possession of property with intent to permanently deprive owner of it.
12
Q
Person makes falsehood or misrepresentation to property owner to gain possession of property with intent to permanently deprive owner of it.
A
The fact that the owner voluntarily gave the property doesn’t prevent the larceny by trick.
13
Q
Embezzlement
A
fraudulent conversion of another’s property by person who then lawfully possesses the property.
14
Q
Embezzlement
A
defendant had lawful possession of the property at time of conversion
15
Q
Larceny
A
defendant didn’t have lawful poessession at time of conversion.
16
Q
False pretenses
A
Person obtains title to property belonging to another through knowing misrepresentation of material fact with intent to defraud.
17
Q
Defraud
A
The person knows it false
+ causes the person pass the title.
18
Q
Larceny by trick
A
voluntary transfer of possession of property from owner to thief.
19
Q
False pretenses
A
Original owner’s voluntary transfer of title to thief.
20
Q
Adam committed guilty of false pretenses because
A
he obtained title from Edwards’ motorcycle through is representation that his title is materially valid.
21
Q
Receipt of stolen property
A
person knowlingly receives stolen property with intent to permanently deprive the owner of the property.
22
Q
It doesn’t matter if the customer paid money
A
for the stolen property.
23
Q
Robbery
A
Larceny
+ the Taking of the Property from the person or in the presence of another.
24
Q
Adam took money from Bob and Clarice with intent to permanently deprive them of it
A
Larceny
+ you did so by intimidation
= Robbery
25
Intimidation
Would a reasonable person in the victim's position have believed she would be subject to imminent bodily injury if she did not relinquish the property?
26
Skimask & lefthand in a jacket.
A reasonable person would believe Adam had a firearm and would shoot if the teller failed to hand over the money.
- Explicit threat is not required.
27
Lesser included offense
offense with all elements completely subsumed within elements of greater offense.
28
CL Burglary
Unlawful breaking and entering of another person's dwelling at night with intent to commit felony.
29
Burglary today
-may occur day or night.
-defendant's intent to commit any crime is sufficient.
- can be committed in dwelling or any other building, (e.g., bank).
30
Burglary:
unprivileged entry is sufficient.
- opening an unlocked door without permission.
31
CL: Burglary: Breaking could be constructive
obtaining entry through use of force or fraud.
32
Burglary
perpetrator makes unprivileged entry into another's home or other building with intent to commit crime inside, even if he fails to consummate other offense once inside.
33
Criminal trespass
persons unprivileged entry or remaining in another's home or other building.
34
Burglary
at time of unlawful entry or initial decision to remain in home or building, perpetrator had intent to commit another crime inside.
35
Bulgrary
1. Breaking
2. Entering,
3. Dwelling,
4. Of another
5. At night time or day
6. With the intent to commit a felony within.
36
Some jurisdictions
-Battery
nonconsensual, intentional physical contact with another person causing bodily injury.
- Spitting does not qualify.
37
Other jurisdiction
- Battery
Nonconsensual, intentional physical contact with another person
- Spitting ok
- Offensive touching.
38
Threatened battery
A defendant must specifically intend to place another person in reasonable apprehension of an imminent battery.
39
Reasonable apprehension (in battery)
How would a reasonable person in the victim's circumstances perceive the defendant's threat.
40
Rape
1. A defendant must use force or threatened force extrinsic to the sex act.
2. Victim must actively resist by words or conduct.
41
Kidnapping
intentional, nonconsensual, and unlawful taking and movement (asportation), even if only a short distance, or confinement of another person.
42
Some additional elements required:
A defendant must have held the victim for a specified unlawful purpose including;
- 1. Ransom or as hostage,
2. Facilitated commission of any felony or flight thereafter.
3. Inflicted bodily injury on or terrorized victim or another,
4. Interfered with performance of government function.
43
Other states:
While not requiring such a purpose, some other aggravating factor is required, such as exposing the victim to a risk of physical injury.
44
Adam did intentionally and nonconsensually transported Bob.
None of the aggravating factors or illicit purposes required under Modern Kidnapping statutes appear.
45
Adam is guilty of unlawful restrain, or false imprisonment, but not kidnapping.
46
MPC kidnapping:
1. Move the victim substantial distance.
2. Confine the victim a substantial period of time.
47
Kidnapping
transporting a motherfucker under threat of force.
48
CL: Arson
the malicious burning of another person's dwelling.
49
Malice
Defendant acted at least knowlingly or recklessly, as opposed to merely negligently.
- Manifests a reckless disregard of the high risk of fire and or explosion.
50
Burning:
A structure must be charred.
51
Many Jur: Burning
can include lesser harms, including smoke damage.
52
Arson
Malice: intent or with reckless disregard
- outside + inside burning.
- another person living there.
- the person does not actually have to be there at the same time.
- At least 2 people living there.
- It is not arson if you burn a car.
- but it is arson if you burn a mobile home, because ppl can live there.
53
Arson -> change (Goat)
it has to be just a structure.
- doesn't have to be dwelling.
- if you burn your own building yes. and you are the only one that lives there. (insurance scammers).
- if you accidently burned, and do not put it out: because you want the building to burn: arson.
54
Actual possession
Dominion and control over an item of contraband.
- Having control for a long enough time to actually terminate possession.
55
Constructive possession
Defendant knows he has right to exercise dominion and control over item located somewhere else but doesn't relinquish right.
- 마약 위치, 키 등.
- when the drug is not in your actual possession, but it is close enough for you to exercise control over it.
- they need to prove that you were aware of the item's existence or took steps to avoid knowing about it.
56
Constructive possession
Prosecutors must establish both knowledge + control.
- you knew about the drugs in the trunk of your car
+ & you could control them.
--> Then, they can argue you had possession even if you were not physically touching or holding them.
- Just being near the drug is not enough for constructive possession, you need knowledge.
57
58
Most Jur: Principal:
Directly commits a crime.
59
Most Jur. Accomplice
Aids or abets through encouragement or assistance before, during, or in principals' flight from committing offense.
60
Accomplice
Criminally liable for any additional crime committed by a principal during the offense if the crime was both;
61
Accomplice: Criminally liable:
1. Natural Probable consequence of primary crime (아마 Foreseeability라고 한 것같음)
2. Committed in furtherance of primary crime.
62
Accomplice
Merely being present and associating with perpetrator when perpetrator commits offense is not ACCOMPLICE.
63
To qualify as Accomplice:
A Person must intend to adi or abet perpetrator in some manner.
64
Person merely present when perpetrator commits offense generally not obligated to
- Prevent perpetrator from committing offense;
- Report perpetrator to authorities after he commits offense.
65
Most jurisdiction: A parent or guardian
has a duty to prevent the minor's commission of a crime if able to do so.
66
Accomplice
intends to aid or abet principal so offense will succeed.
67
Accomplice
knowlingly provides assistance but doesn't intend for perpetrator to succeed.
68
Dorothy: (pistol shop clerk) accomplice? YES.
- 1. She knew he would likely use pistol for robbery.
- 2. Charged inflated price.
- 3. Asked for more business from his gang.
---> Intended to aid or abet robbery.
69
Accessory After the Fact
Person who, after crime's been committed, offers assistance to principal with intent to keep principal from being detected or apprehended.
70
Mens Rea for an accomplice to Reckless or Negligent Crime
1. Some jur: Defendant can't be liable.
2. Other Jur & Model Penal Code:
--> Defendant can be liable if defendant acted with reckless or negligent.
71
A person who offered assistance immediate flight from the scene of the crime
+ knew in advance that the person will commit a crime.
Accomplice.
72
Inchoate Offense
Committed in anticipation of, or in preparation for, a target offense.
73
Target offense
need not to be completed to make defendant guilty.
74
Attempt
beyond mere preparation.
75
MPC: Attempt
Substantial Step test, Dangerous Proximity Test
76
MPC attempt: Substantial Step test:
To be guilty, D must have taken substantial step toward completing target offense.
- 1. Searching for or following the contemplated victim,
- 2. Reconnoiter (정찰하다 답사하다) the place contemplated for the commission of the target crime.
-3 . Possessing materials or instrumentalities to be employed.
77
Dangerous Proximity test
Criminal Liability for attempt arises if the defendant came dangerously close to committing the target offense.
78
Adam committed attempted robbery (새벽 7시에 돈 뽑던 밥에게 접근: 잠복 경찰에게 잡힘)
- 1. He took a substantial step to buy a pistol.
- 2. He was dangerously close to him.
79
Abandonment or renunciation defense
A defendant completely and voluntarily abandoned the attempt before consummating the target offense.
80
Abandonment not Voluntary IF:
1. Unexpected difficulties,
2. Fear of detection,
3. Waiting for a better opportunity.
81
Legal impossibility
A defendant wrongfuly believed that he was attempting to commit a crime when the purported target offense was ntoan actual crime.
82
Factual impossibility
A defendant attempted to commit an actual crime, but some factual circumstance rendered the commission of the crime impossible to consummate.
83
Solicitation
1. Defendant's request of another person to commit an offense or adi and abet the defendant in committing that offense.
2. Defendant's intent that the offense actually be committed.
3. The other party says, "I can't, I am mortally afraid of guns." 이런 거 상관 없음.
84
Most jur.: dont' recognize renunciation as a defense to solicitation.
MPC: permits the defense if the defendant persuades the solicited party not to commit the target offense or otherwise prevents its commission under circumstances demonstrating complete and voluntary renunciation.
85
Difference between solicitation and attempt:
Solicitation: just request. That another person commit a crime.
86
Difference between solicitation and attempt
Attempt: request that another person commit a crime
+ some other act: e.g., payment of soliciting party.
is substantial step:
--> Attempt.
87
Double jeopardy clause
Defendant can be convicted of both conspiracy and the target offense. because their elements differ.
88
Conspiracy
merge into the completed offense
89
Conspiracy
Doesn't merge into the completed offense.
- MERGE with solicitation of the target offense.
90
Conspiracy:
Agreement between 2 or more people to commit a crime.
91
Conspiratorial liability
-Doesn't require conspirators to commit target crime.
- Doesn't require conspirators to take a substantial step.
92
Conspiracy: 2 people merely agree to commit offense is NOT conspiracy.
Conspiracy: 2 people agree to commit an offense & at least does OVERT ACT.
93
Overt Act
Some conduct in furtherance of the conspiratorial plan
94
To join a conspiracy:
-Person must intend to join. (joke안 됨)
- Must intend for conspiracy to achieve criminal objective.
95
Bilateral Conspiracy Rule
Can't be guilty of conspiracy unless he had meeting of minds with at least one other guilty person concerning conspiratorial objective.
- Adam would not be guilty (w/ Undercover cob)
96
Unilateral Conspiracy Rule
Person who honestly believes he is agreeing with another to commit a crime is guilty of conspiracy even if other person never intended to join.
- Adam would be guilty (w/ undercover cob)
97
Adam이 한 짓: 지 혼자 크리스 털고 죽임.+ 죽이기 전에 망봄 (Overt act of conspiracy: surveiling)
Bob이 한 짓: 처음에 한다고 했다가 안 한다고 했음.
Bob: 다 뒤집어 씀 (Robbery+ Murder+ Conspiracy)
- Any member of a conspiracy is guilty of any crime committed in furtherance of it, if the crime is reasonably foreseeable.
98
natural consequence of armed robbey;
the reasonable person can foresee that murder can happen.
99
To withdraw from conspiracy; conspirator must
1. Explicitly notify all other members of the conspiracy of withdrawal; or;
2. engage in some affirmative act effectively communicating unequivocal withdrawal.
100
Effective withdrawal:
1. doesn't cut off liability for conspiracy.
2. Cuts off liability for crimes committed in furtherance of conspiracy, if after withdrawal.
101
If Bob effectively communicated with Adam about withdrawal (robbery and murder)
Bob is only discharged from Conspiracy; not robbery and murder.
102
Many jur: to prevent conviction of conspiracy he joined, a conspirator must
Renounce conspiracy.
103
Renunciation:
requires conspirator to thwart conspiracy's success before target offense occurs.
- telling 911.
104
If Bob tells Police Before Adam commit a robbery, then,
Bob has affirmative defense to conspiracy charge.
105
CL: if Adam (murderer) acquitted, Can still Bob convicted?
NO.
Acquittal of all other coconspirators:
- Remaining conspirator can't be convicted.
106
Most jur: inability to convict a coconspirator due to a personal defense (immunity, incapacity: 외교관이다 등등).
Doesn't preclude conviction of other coconspirator.
107
Did an officer, official, or private person acting on the official's behalf engage in Search, Seizure, or Arrest within the meaning of the 4th?
YES. Then, 4th.
No, 4th doesn't apply.
108
If 4th appky so, Warrant, legally required?
If the officer violated 4th, does it require exclusion of the evidence?
109
4th Search
Officer's actions must implicate protected privacy or property interests for one or more
110
Officer's actions must implicate protected privacy or property interest for one or more
1. The person's body, including words spoken
2. Home, including temporary residences,
3. Papers,
4. Effects (Personal property)
111
Intrusive: Warrant필요
Intrusive GPS on the suspect's car;
Based on the cellphone location records that reveal a suspect's movement.
112
Smith's barn: open field. police
OK without warrant.
113
Real property 4th
Protects home itself and immediate area around it (curtilage).
114
Police looking inside the Smith Barn does not
implicate privacy interest of Smith.
115
4th Reasonable expectation of privacy
+ Society deems worthy of protection.
- Subjective (Smith does not expect)
스미스는 없다. 창문이 다 열려 있어서 안에 마약 다 보인다.
- Plain View.
- Vantage Point.
116
Key considerations for Expectation of Privacy: What steps did a person take to protect an otherwise private area from public view?
S. Ct.: Open fields, individuals lack a reasonable expectation of privacy.
117
No reasonable expectation of privacy in abandoned items
Meth in trash: no warranty needed.
- Exception: police cause individual to abandon item through unconstitutional conduct.
118
Hightech, thermo tech to detect Meth grow in a house:
S. Ct. Unconstitutional Search because it is uncommon technology
119
Use of Common technology
됨. Using binocular to see the open window from a street corner is not an unconstitutional search.
120
Slightest movement of item that they are not allowed to see in a plain view
(unconstitutional) Search.
121
If officer has Probable Cause for evidence inside the working Car (RV)
The officer Mary may seize and search anywhere evidence could be located in. WITHOUT WARRANT.
122
Automobile Exception
Applies to fully functional RVs that are capable of driving away.
123
Warrantless search of RV is
constitutional
124
If RV was inside the curtilage
Officer Mary needs Warrant to search inside RV.
125
Automobile exception
only applies to automobiles on public roads or in other places, such as open fields.
126
If RV became camping car with the laundry hanging
Officer Mary needs search warrant.
127
Automobile Search Incident to Arrest
Officers are permitted, after a lawful arrest, to search a car without a warrant, even with no basis to believe any incriminating evidence would be found.
128
Automobile Search Incident to Arrest
Officers are permitted, after a lawful arrest, to search a car without a warrant, even with no basis to believe any incriminating evidence would be found.
129
Search incident to arrest 목적:
The suspect destroy the evidence, or doesn't protect police officer and other's safety.
130
But the officer may not engage in search in the passenger's compartment
if the suspect was in the police ar and handcuffed in the car; because he doesn't threat the officer nor destory the evidence.
131
This exception
officers arrest driver for a felony or misdemeanor, including traffice offence
132
If officers have probable cause to arrest but
choose to issue citation, then, this exception doesn't apply
133
Exception, officer tows the car away and the suspect is in custody
Before the car is towed, officers may search the arrestee's car as part of an inventory search of the arrestee's personal property.
134
Constitutional Inventory Search
Conducted pursuant to a preexisting policy of the relevant law enforcement agency --> OK.
135
Constitutional inventory search
occurs on an ad hoc basis rather than based on the established policy
--> Incriminating evidence suppressed under 4th.
136
Plain View Exception
Officers may seize incriminating evidence without a warrant if:
- It's in plain view from a lawful vantage point.
- It's incriminaing nature is immediately apparent.
--> The warrant is for guns, but I saw a suitcase full of drugs under the couch:
---> If it is plain view, no warrant needed.
137
Exigent Circumstances Exception
Officers can enter a home without a warrant if they:
- Are in hot pursuit of fleeing felony suspect;
- have reasonable basis to believe that he has entered the home.
138
Exigent Circumstances Exception
Officers can seize evidence without a warrant if officers reasonably believe that it will be destroyed or removed before a warrant can be obtained.
139
Exigent Circum Exception
Upon exigency, any incriminating item found is admissible.
140
Exigent Circumstance Exception
Emergency Aid:
- Officer can enter without warrant
"We got 911 call from this address.I hear someone screaming."
- Then, any incriminating evidence inside home can be admissible.
141
Search Incident to Arrest Exception
After an officer lawfully arrests a person, the officer may search:
- 1. Arrestee's personal property (clothing, backpack) in immediate possession
+ immediate area around arrestee:
WINGSPAN.
No warrant needed.
142
Search incident to arrest exception
목적: Promotes officer safety and prevents destruction of evidence.
143
Warrantless Search의 예외:
Digital Data in Phone.
144
경찰: 음주운전:
-피를 뽑는 것은 안 됨.
- Breathalyzer됨.
145
Warrantless: Chickswab
Felony 됨.
146
Protective Sweep
Similar to search incident to arrest.
경찰이 싹 다 털 수 있음.
- If they have reasonable suspicion to believe that human poses threat present.
- 인간이 숨을 정도의 크기는 Search가능.
- 인간이 숨을 수 없는 정도의 공간은 Search불가능.
- 싹 다 털어처먹는 거 같음.
147
Voluntary consent
Totality of circumstances:
- Characteristics of person who gave consent.
- Whether the officer engaged in improper behavior.
- e.g., Demanding suspect permit warrantless search.
148
Search pursuant to a warrant:
only valid if search conducted is within scope of warrant.
149
Consensual search
Valid only if it occurrs within scope of the consent given.
150
Individual: Actual authority to consent:
If she has a right to mutual use of the property.
151
Allowed: Roommate can let police search the common areas.
Not allowed: Roommate cannot let police search my bedroom.
152
Hotel Clerk has no authority
to search the guest's room.
153
Individual apparent authority to consent:
police reasonably, but mistakenly, believe individual has actual authority to consent.
154
Parole, probation exception
Individuals on probation or parole have a diminished expectation of privacy.
155
Parolees= in state custody.
Police can search without Probable Cause;
156
4th
An officer may arrest a suspect in public based on a probable cause that the suspect has committed a crime without the need for a warrant.
157
Arrest or Search Warrant
Generally only required for an officer to enter a suspect's home and arrest him there.
158
Search Incident to Arrest Exception
If there is a lawful arrest, an officer may search, without a warrant, the suspect's person and the immediate vicinity.
159
If officers have an arrest warrant but not search warrant+ and entered the private home to arrest a suspect;
must have a reasonable basis to believe the suspect is inside the residence before entering.
160
No reasonable basis:
suppression of any evidence seen inside the home.
161
Jones had probable cause to arrest Smith & probable cause to search Smith's car for Meth.
162
Probable Cause 정의:
A reasonable gound for belief that a suspect committed or is in the process of committing a crime.
163
Probable Cause
Objective Standard.
- Not subjective belief.
164
Pretextual Arrest
Upheld. If they are objectively based on probable cause.
165
Descriptive Information: Smith is making his meth in his RV.
Predictive Information: Smith will drive 10 miles away at lunchtime tomorrow.
He is meeting someone to make meth there.
RS.
166
Reasonable Suspicion
A particularized and objective basis, supported by specific and articulable facts; for suspecting a person of criminal activity.
167
Reasonable suspicion
officer may seize the suspect temporarily and ask a limited number of questions.
168
If probable cause doesn't exist during terry stop
the police must let the suspect go.
169
If the probable cause arises after questions,
officer arrest Smith.
170
Terry Stop
Doesn't automatically permit an officer to search the suspect.
171
Searching suspect in a Terry stop
The officer must possess independent reasonable suspicion that the suspect is armed.
172
Pretextual stops are permissible
Only relevant issue is whether officer has legal grounds for stop.
not subjective.
Jones had reasonable suspicion because the witness said traffic violation.
173
Search suspect in a Terry stop
1. Officer must possess independent reasonable suspicion that the suspect is armed.
2. The search must be limited to a pat doen (Terry Frisk)
174
Exclusionary Rule
Only criminal case, not civil not immigration cases.
175
Exceptions to Exclusionary Rule
Which have permitted unconstitutionally obtained evidence to be admitted at trials.
176
Standing
only the person whose constitutional rights were violated may exclude 4th Amendment Violation.
177
Commercial Visitor
White:
- Visits another's home solely to conduct a business transaction.
- Like social guests,
no standing to complain about unconstitutional search.
later even if the searched' item is used against the commercial visitor
--because the commercial visitor had no privacy or property interest in home.
178
White here,
no standing to move to suppress evidence because he was commercial visitor in lab.
179
Standing: Automobiles
Automobile: Smith것.
Only Smith has standing to invoke exclusionary rule. Not White.
- Smith drugs and lab evidence won't be admissible against Smith at trial.
At White's trial, meth evidence comes in.
White is passenger, no interest in CAR.
White can't invoke the exclusionary rule.
180
Although passenger normally lacks standing to challenge a search;
they have standing to challenge an unconstitutional seizure.
181
Independent Source Exception
Evidence obtained pursuant to a valid warrant can be introduced at trial even if police initially violated the 4th.
182
If an officer engaged in an unconstitutional warrantless search,
an independent source of probable cause unrelated to that provides a constitutional basis for a warrant.
183
Although officer unreasonably searched initial, that doesn't make the later obtaining search warrant.
Independent source for warrant: informant's purchase of meth.--> justifies independent source exception.
184
Inevitable Discovery exception
Officers would have inevitably discovered evidence that previously was unconstitutionally searched or seized.
185
Inevitable Discovery Exception
Doesn't apply based on unconstitutional search or seizure if a constitutional search or seizure would have occurred but for the earlier search or seizure.
186
Inevitably,
In forest, the evidence would have found anyway.
187
Independent source exception
The search that discovered the evidence was legal.
even though a previous, illegal search occurred.
188
Inevitable Discovery Doctrine
The search that discovered the evidence was illegal, but a legal search would have eventually found the evidence.
189
Good faith exception
evidence obtained pursuant to a warrant later found to be invalid can be admissible if police reasonably believed warrant to be valid at the time.
190
Suppression of evidence under the exclusionary rule
shouldn't occur even if a warrant wasn't based on probable cause; so long as an objectively reasonable officer could have believed the warrant was valid.
191
Warrant
relied on an informant's observation of a meth lab on Smith's property four months beforehand.
192
Good faith exception application
A police officer mistakenly relies on an error in a law enforcement computer system stating that a suspect has a pending warrant when in fact the warrant no longer exists.
193
Because an officer has reasonably relied on a trustworthy source;
the arrest and search incident to arrest don't provide a basis for suppression of any evidence.
194
Good faith exception application
Officers engage in a warrantless search or seizure that, although later declared unconstitutional by an intervening appellate; court decision, was consistent with a prior appellate decision in effect at that time.
195
Davis v. U.S. : Because the officers followed the existing precedent in searching or seizing evidence without a warrant,
a trial court shouldn't apply the exclusionary rule.
196
The officers objectively reasonable in relying on sources;
The officers wouldn't be deterred from violating the 4th because it is deterrence.
197
Deterrence+ the social cost of suppressing reliable evidence of defendant's guilt are too great.
The exclusionary rule doesn't apply in those situations.
198
Evidence obtained in violation of the Constitution may be introduced to impeach a testifying defendant.
큄비에서 쌔벼서 고대로 넣어 노음.
impeachment evidence exception
199
Impeachment exception
1. Physical evidence obtained in violation of the 4th
2. Confessions obtained in violation of a defendant's Miranda Rights.
200
The suppressed evidence
has to be directly contradict the testimony
201
Not testifying in certain cases
Invocation of the privilege may be evidence agains the person invoking it.
202
Criminal prosecution
Invocation of the privilege not be used as evidence against him.
203
5th Privilege applies to
-Police officers' interrogations of criminal defendants.
- Criminal defendants' decisions not to testify at trials.
- Those called to testify in civil litigation, administrative proceedings, and legislative hearings,
- Only applies to individuals, not artificial entities.
204
5th Amendment Privilege
The statement must be possibly self incriminating with respect to a present or future criminal case in state or federal court.
205
Some manner of actual or threatened compulsion from a gov authority
in connection with the statement, e.g., use of physical force, psychological coercion, threat of penalty for not speaking.
206
5th
Statement Testimonial.
207
Testimonial statement
Communication about some potentially self incriminating matter.
208
Non testimonial
not for communication purposes.
- 경찰이 라인업 세워놓고 따라 불러봐라: 그것은 Testimonial하지 않음.
209
5th Amendment Privilege applies to
1. Compelled Speech that's testimonial in nature.
2. Compelled acts, called, acts of production.
210
The act of production is testimonial and potentially incriminating because
it offers implied testimony that the suspect possessed authentic records.
211
Immunity from prosecution
1. Testimony only immunity
2. Derivative Use Immunity
3. Transactional Immunity.
212
Testimony only immunity
Testimony Can't be used against defendant.
BUT
Evidence derived from testimony can be used.
- Insufficient to remove defendant's 5th Amendment privilege.
213
Derivative Use Immunity
-Testimony can't be used against Defendant.
- Evidence derived from testimony can't be used.
- Should be given at least for 5th.
214
Transactional immunity.
- Def can't be prosecuted for any offense related to testimony.
not required that it has to be given.
215
Smith: meth dealer.
Mary Jones investigates Smith for murder of former Associate, White (accomplice of Smith)
White's body was found on the side of the road.
216
Smith says in ct: "I move to suppress my confession because it was involuntary." (경찰이 왕따시킨다고 해서 감옥에서 강제로 자백했음)
The courts should suppress Smith's confession.
217
Use of force to obtain confession
- Renders confession involuntary and inadmissible under 5th Amendment.
218
Deliberate lie about evidence
Doesn't by itself render the suspect's confession involuntary.
219
Use of force to get confession e.g.,
1. Deprivation of Sleep,
2. Interrogating while gunshot wound
--> render a confession involuntary.
220
Miranda: Custodial Interrogation is
inherently coercive.
221
The only way to overcome such coercion is:
-To advise a suspect about certain rights and
-To obtain a valid waiver of those rights before proceeding with questioning.
222
Custody (under Miranda)
1. A person was seized within the meaning of the 4th.
2. The restraint on the person's liberty was so significant that it contributed to the risk of coercion.
223
Traffic stop:
is not Custody in Miranda purposes.
224
Individuals in Probation, Individuals on Parole
In custody for 4th Amendment purposes.
--> Not Custody in Miranda (5th purposes).
225
Miranda Custody:
-is judged according to an objective standard.
- not by the subjective beliefs of the officer or suspect.
226
Howes v. Fields
Merely being incarcerated in connection with one crime doesn't automatically place the prisoner in Miranda Custody if police officers interview him in connection with an unrelated crime.
227
Jones threat to move Smith in a smaller room: a more restricted cell and lose your privilege:
Transforms Smith for incarcerations incarcertaion into Miranda Custody.
228
Suppression (under Miranda)
The suspect confesses while in custody; without 1st being read Miranda warnings.
229
Suppression
The Confession is in response to interrogation by the officer.
230
Interrogation
The officer's words must have been reasonably calculated to obtain an incriminating statement.
231
There was custodial interrogation
No Mirada warnings were given to Smith before he confessed:
His confession is inadmissible under Miranda.
232
Miranda
Defendant doesn't believe he is being interrogated by police officer
233
We have a warrant for your arrest
234
The conversation was not directed to smith
235
Rhode Island v. Innis
the fact that Smith responded to their words in an incriminating manner doesn't mean that the officer's words qualified as an interrogation under Miranda.
236
Component of Miranda Warnings
"you have the right to remain silent, anything you say can and will be used against you in a court of law."
237
Component of Miranda Warnings
"you have the right to an attorney."
238
Component of Miranda Warnings
"If you cannot afford an attorney one will be provided for you."
239
S ct. has allowed for "substantial compliance" with Miranda
The warnings were constitutionally sufficient.
240
Florida v. Powell
Additional advertisement adequately conveyed that the suspect could invoke the right to silence during questioning.
241
Miranda Waiver
Knowling, Intelligent, and Voluntary
242
Implicit Waiver
A suspect is advised of his Miranda rights, sufficiently understands them, and then confesses.
243
"Maybe I need an attorney."
A suspect given Miranda warnings must unambiguously invoke his right to silence or right to counsel for an officer to be prohibited from continuing interrogation.
244
"Maybe I need a lawyer"
Valid, implicit waiver.--> so police can ask qs.
245
If a suspect unambiguously invokes his Miranda Right to Counsel,
any confession thereafter given in response to custodial interrogation is inadmissible.
246
Invocation of the right to counsel
Forever prohibits further interrogation so long as the suspect remains in custody.
247
Invocation of the right to silence
Doesn't prevent interrogation after significant break 14 even if suspect remains in custody.
248
Confession: Admissible
If given after significant break (14 days) following original interrogation and defendant waives Miranda rights.
249
Confession- Inadmissible
If defendant unambiguously invokes right to counsel and interrogation continues.
250
ReMiranda "I waive my Miranda Rights."
-1. Any waiver invalid without counsel present.
-2. If defendant is released for at least 14 days then back in custody.
3. The def's earlier invocation of right to counsel.
4. Doesnt' prevent new interrogation.
251
Maryland v. Shatzer
So long as a def properly waived his Miranda rights, a confession given during such as renewed interrogation is admissible.
252
Ct: Should suppress Smith's confession but
Ct: Shouldn't suppress weapon and testimony.
253
4th Amendment Exclusionary Rule
requires suppression of evidentiary fruits derived from unconstitutional search or seizure.
254
Miranda's Exclusionary Rule
only a confession obtained in violation o fMiranda should be suppressed. Not fruits.
255
Miranda 2 Step Process (또 배껴 삽입된 부분)
1. Officers interrogate suspect without providing Miranda and get inadmissible confession.
Then
2. They read again obtain 2nd confession. Admissible?
256
Siebert factor: Plurailty Oponion
2nd confession inadmissible unless Miranda warnings reasonably conveyed that he was free to stop taling not a foregone conclusion after a suspect had already confessed once.
257
Seibert factor: Concurring opinion
did the police deliberately use the Miranda 2 step to get confession?
258
Was the initial pre miranda questioning merely an inadvertent mistake.
259
Right to Counsel
only applies to critical stages of the prosecution
260
Right to counsel
most events in a criminal case after a defendant has been charged.
261
Critical stages
Most post charging events are critical stages (pretrial suppression hearing, trial, sentencing.)
262
6th: Arraignment at Critical Stage?
1. No.
- Arraignment: perfunctory hearing where defendant informed of charges, not-guilty plea entered.
263
6th Arraignment at Critical Stage?
Yes. Critical stage.
- Defenses or objections must be made or else they will be waived.
264
Precharge lineup:
pretrial identification: no need lawyer because no charge.
265
After charge:
a def must be brought to court and be advised of the complaint by a judge before the 6thAmend right to counsel protects the def.
266
If lineup was after Smith appeared in court, or after charge,
Both lineup and Smith questioning were critical stages that occurred after Smith was charged.
-6th prohibits an officer or agent of the police such as a confidential informant, from deliberately eliciting an incriminating statement after a def has been charged.
267
5th Miranda right to counsel
Requires custodial interrogation.
268
6th Right to counsel
Protects a def who's been released on bond or otherwise is not in custody.
- Offense specific: charged crime 1,
Uncharged crime 2: confession can't be suppressed.
269
Gideon v. Wainwright
A criminal def cahrged with a felony offense instate or fed court is constitutionally entitled to an appointed defense attorney if the def can't afford to retain an attorney.
270
Misdemeanors
a def is entitled to court appointed counsel only if a court imposes at least one day of an actual or suspended sentence of incarceration.
271
If the court declines to appoint counsel for an indigent defendant for a misdemeanor offense;
no jail sentence can be imposed.
272
Ineffective assistance of counsel
the lawyer 1 was deficient in failing to investigate whether the drug was actually illegal.
+ that deficiency prejudiced Smith because there is a reasonable probability that but for deficiency; result would be different.
273
Ineffective assistance of counsel
Outcome 2: Witness testimony supports, "no illegal meth"
Smith's conviction should be vacated on grounds that his original lawyer provided ineffective assiatance of counsel.
274
6th Effective assistance of counsel
1. Attorney performs deficiently: reasonable competence;
2. Deficiency prejudices the defendant.
275
Bright line:
1. Attorney must advise clients who are not citizens about the potential immigration consequences of taking a guilty plea.
2. Capital case: an attorney must seek out potentially mitigating evidence that might cause a jury to deliver a sentence other than death.
3. Attorneys must inform clients of formal plea offers.
276
Double Jeopardy Clause
prevent successive criminal prosecutions or multiple criminal punishments for the same offense.
277
Successive prosecution
Collateral Estoppel
278
Successive prosecutions
Trying a defendant multiple times for the same offense.
279
Jury bias City A by local newspaper
Ct did not agree that Smith can get a fair trial in that city, and declared mistrial.
280
In city B,"I move to dismiss the indictment under Double Jeopardy Clause." 안됨.
Jeopardy attaches only when the petty jury sworn in.
281
Attachment of jeopardy
Def is protected by the Double Jeopardy Clause.
282
Smith was never in jeopardy
because jury was not sworn in.
283
Bench trial without a jury
Attachment of Jeopardy:
-1. First witness sworn in.
- 2. Court accepts first item of evidence.
284
When Smith say, "I plead guilty" then,
the court unconditionally accepts, "Your plea is accepted," then, jeopardy attaches.
285
Retrial constitute double jeopardy?
depends
286
If mistrial was declared on prosecutor's requests; a mistrial is declared after jeopardy has attached;
Did manifest necessity exist for the mistrial?
287
Did manifest necessity exist for the mistrial?
YES.
-- Retrial isn't barred under the Double Jeopardy Clause.
288
Did manifest necessity exist for the mistrial?
No.
289
If def successfully moves for a mistrial
Manifest necessity exists only if the prosecutor, through misconduct, intentionally goaded the def to move for a mistrial.
--> Double jeopardy attached.
290
If prosecutor successfully moves for a mistrial
--> manifest necessity exists?
- if the basis was misconduct by a def or defense counsel, a manifest necessity existed.
291
If the prosecutor moves for a mistrial because she failed to subpoena a witness or locate evidence;
not manifest necessity; and the def can't be retried.
292
Double Jeopardy
Prevents successive criminal prosecutions or multiple criminal punishments for the same offense.
293
294
Are the 2 offenses the same?
1. Each has the same elements then yes.
2. Each offense has at least one element that the other doesn't have NO.
295
Conduct
Offense 1. Offense 2.
--> doesn't violate double jeopardy to give separate sentences.
296
Collateral Estoppel
If a judge or jury necessarily acquitted the def on a specific factual ground at the first trial, the gov may not prosecute a second time for a related but different offense, provided a conviction would be inconsistent with that prior factual finding.
297
Double jeopardy clause
only applies to successive prosecutions by the same sovereign.
298
Burden of Proof
Standard that a party seeking to prove a fact must satisfy.
299
Prosecution's burden of proof
the fact that raises the maximum penalty, except for the fact that a defendant has a prior conviction.
300
Prosecution's burden of proof
the fact that a defendant had a prior conviction: Preponderance of Evidence
301
Due Process
Trial and appellate courts must enforce the requirement that the prosecution prove each element beyond the reasonable doubt.
302
Appellate Court concludes the prosecution failed to offer sufficient evidence to prove any element beyond a reasonable doubt
-must reverse the defendant's conviction;
-must remand to the trial court with instructions to render a judgment of acquittal.
303
Martin v. Ohio,
It doesn't violate due process to place the burden of proof on defendant's concerning affirmative defenses as opposed to elements of the charged offense.
304
Self Defense is affirmative defense
Trial court's instructions properly placed the burden to proove self defense to Smith.
305
Mandatory Presumption
It violates due process to instruct a jury on a mandatory presumption.
306
Permissive Presumption:
The court may instruct the jury on permissive presumption
307
Permissive presumption:
Jury may presume an element after finding a predicate fact but need not do so.
308
Permissive Presumption
must contain a rational connection between the fact and the presumed fact.
309
Common permissive presumption
1. Def intended the natural consequences of his actions.
2. Def in possession of recently stolen property; if such possession isn't explained, was aware that the property was stolen.
310
Due Process: A def may request that the jury be permitted to convict on a "lesser included offense."
An offense whose elements are a subset of the elements of the charged offense.
--> Attempted rape:로 한 번 풀려났다면 나중에 희생자가 죽어도 Felony murder가 되지 않는다.
311
Due Process
A court must instruct the jury on a lesser included offense if the jury could rationally find the def guilty of the lesser offense.
312
A party who loses at trial court level
Appeal, ask higher court to reverse trial court's ruling.
313
Chapman v. California
Most Constitutional errors are subject to Harmless error analysis on appeal.
314
Harmless error
Even if appellate court finds constitutional violation, conviction won't be reversed if prosecution can prove error was harmless beyond a reasonable doubt.
315
Appellate Court Decision
the def's conviction and sentence were surely unattributable to the error.
316
If the prosecution did not meet its burden to prove beyond the reasonable doubt that the constitutional error was harmless;
Reverse the defendant's conviction or sentence.
317
Structural Error
affects the entire framework of trial.
318
Structural Errors:
1. Biased jury or judge.
2. Denial of the def's right to counsel or to represent himself.
3. Improperly closing the courtroom to the public.
319
Prosecution can try to convince the appellate court that
Due Process violation was harmless beyond a reasonable doubt based on the evidence at trial.
320
Double jeopardy clause
Prosecution Cannot appeal a jury's acquittal.
- Lesser included offense constitutes an acquittal on the greater offense for double jeopardy purposes.
321
Prosecution may appeal
1. Pre- Acquittal rulings:
- Excluding evidence under 4th Amendment's exclusionary rule.
- Excluding a def's confession under Miranda's exclusionary rule.
2. A trial court's sentence imposed on a convicted def.
322
6th Amendment
Guarantees the right to a jury trial in state and federal criminal cases for all felony cases and nonpetty misdemeanor cases; Maximum exceeds 6 months in jail.
323
If you are charged with attempted possession of chem with intent to manu meth, which is felony.
Jury = 6 . ok, but it has to be unanimous.
324
The 6th Amendment
requires jurors to find all elements of the charged offense beyond a reasonable doubt.
325
Directed verdict
Enhance sentencing:
Jury must find a fact that increases a sentence beyond a statutory maximu.
have a "Gun"--> FACT."
326
Peremptory challenge to remove black and latino.
No. it is based on race.
327
Peremptory challange
not based on race, ethnicity, or gender.
328
Exclusion from jury service
-display bias against the prosecution or defense해야 하는 요건이 필요함.
-Assumptions of bias based on stereotypes about members of a racial or ethnic group or gender.
329
Batson v. Kenturcky
Nonstriking party must first make a prima facie case of discrimination in the other party's use of peremptory strike.
330
Court can remove juror for cause.
If juror indicates inability to be fair and impartial.
331
Ct
as long as the biased juror wasn't actually seated, a def isn't prejudiced and is therefore not entitled to relief.
332
Capital cases: potential jurors may be removed for cause
indicate categorial opposition to death penalty.
not fore merely expressing reservations.
333
Constitutional rights integral fair trial
1. 6th right to counsel.
2. Right to impartial jury
3. Right to confront witnesses.
334
Confront judge
A def who is in custody is entitled to a prompt determination of probable cause.
335
Determination made within 48 hours
Presumptively Constitutional.
336
Determination within 48 hours
Calvin bears burden of showing determination was wrongfully delayed.
- RIGHT to counsel is not there.
- Even if Calvin is indigent: no lawyer.
337
Determination after 48 hours.
Presumptively Unconstitutional.
GV bears burden of proving existence of emergency justifying delay.
338
Arraignment
formal presentation of charges against def.
339
Arraignment
-often combined with initial probable cause hearing.
- A critical stage if important rights can be lost.
340
IF the state court requires Calvin to demonstrate alibi or affirmative defense, e.g., insanity, otherwise, forfeit defense,
the Arraignment is a critical stage.
341
If the arraignment is perfunctory
the court enters a not guilty plea for Calvin
- not critical stage.
no lawyer.
342
The 5th
no person can be tried for a felony offense except upon indictment by a grand jury.
343
Grand jury
is a jury. A group of citizens entered to investigate crimes and determine whether probable cause exists.
344
Right to a grand jury indictment
hasn't been incorporated against the states.
so in a state prosecution, there i no right to it.
345
Grand jury proceeding
-Hearsay allowed.
-Allows evidence and testimony that could be suppressed at trial for violating 4th or 5th Amendment rights.
346
5th Amend
Prohibited on Double jeopardy applies to trials only, not preliminary proceeding: Grandjury is ok,
347
Preliminary hearing
Judge determines whether probable cause exists.
348
Grand jury indictment
Def is not entitle to be present, represented by counsel, and to cross examine witnesses.
349
8th Amend
Prohibits excessive bonds but doesn't require that bond be granted at all.
350
Constitution
requires hearing, outside the presence of the jury, to determine whether a def's statement were voluntary.
351
Pretrial suppression hearing
Even if judge doesn't make suppression, Calvin is entitled to instruct jury to suppress his statements based on involuntariness.
352
Clear and convincing evidence
Bond
353
Confrontation Clause
Prohibits prosecution from introducing testimonial hearsay unless out of court declarant was subject to cross examination under oath by the defense.
354
Statements made for purposes other than solving a crime
e.g., emergency. or obtain medical care for the victim:
- are considered non-testimonial and are admissible.
->if they satisfy a hearsay exception.
355
Confrontation Clause
Protects the right to personally confront witnesses.
356
Confrontation Clause
"You may testify without seeing the def upon showing of good cause."
357
Child can be there only on determination that it's necessary to protect the child's well being.
358
Def
have a right to be present at all stages of the case; inclu trial.
- Def can waive the right to be present, such as not showing up, or disruptive manner.
359
Def has a right to wear street clothign and not be restrained in front of the jury so that jury
doesn't know that he is in custody.
360
Trials open to public. (presumptively)
Ct can close partially.
If compelling interest and after considering reasonable alternatives.
361
Before, the court should warn its risk of pro se:
It is not absolute.
362
Def with mental health issue
-competent to stand trial.
- not competent to represent himself (출제 된 듯)
363
Rights can be revoked
if def abuses right by engaging in an obstructive behavior.
364
After he accepted Plea,
The ct accepted his plea, judged him guilty and sentenced to prison.
365
Due process
for a guilty plea to be a valid basis for a conviction, the record must reflect that the plea was knowing, intelligent, and voluntary.
366
Extortion
obtaining property though a spoen or written threat to do future harm to someone.
367
Extortion
you don't have to take something from someone's presence.
- Senegal.
- Future harm
368
Robbery
you have to take it from something from someone's presence.
- Immediate harm.
369
Receipt of stolen property
문제가 되는 것: Knowling it is stolen.
370
Receipt of stolen property
1. D receives stolen property
2. A thief actually steals the property from its true owner.
3. D knows the property stolen.
4. D intends to permanently deprive the owner of the property.
371
Knowledge in receipt of stolen property
1. Actual, 2. Constructive knowledge.(고가를 너무 싸게 파는 경우임)
372
Robbery : Force
Does not have to happen directly during the taking.
The force can happen at the same time as the robbery itself or the immediate escape.
373
Burglary
CL: Dwelling. (of another).
MPC: any protected sturcture.
374
Battery
application of force to another that results in physical harm or would offend a reasonable persons sense of dignity.
375
Battery
Unlawful force to a persons body.
- It harmed someone.
- It was offensive to a reasonable person not a sensitive little bitch
- Or an extension of their body.
376
Defenses to battery
1. Consent,
2. Self defense (immediate self defense or defense of others).. no retaliation.
3. Preventing a crime from being committed.
377
Criminal Assault
1. Failed battery.
- You swung at someone but missed. The victim does not have to be aware of the attempted battery.
2. Scaring people.
378
Assault
when you put someone under a reasonable apprehension of contact.
E2 #8: with intent to cause bodily harm: Specific intent.
379
Assault
Words alone is not sufficient.
You need words and that fist.
380
Aggravated assault
1. Intent to rape.
2. Intent to maim
3. Intent to kill or assault on the elderly or child victim.
- Specific intent. You need to actually be trying to kill someone.
381
Assault with intent to kill and attempted murder
do not merge.
If you fire a gun and it misfires, you can be charged with both aggravated assault and attempted murder.
382
Rape
consent.
383
If intercourse is
1. Forcible, 2) while the victim is asleep or unconscious, or
3. Upon a victim who cannot give consent; mentally incompetent, or
4. by means of deception such as pretending to be someone you are not.
The def will be liable for rape.
384
Statutory rape
is sexual intercouse btw an adult an adult and a minor who has not reached the age of consent.
- No defense of consent or mistake is allowed for statutory rape.
385
Attempted statutory rape
if you intend to commit statutory rape.
386
Statutory rape
I did not know that she was a minor
--> not a defense.
387
체포할 당사자가 다른 사람 집에 있을 경우: Arrest warrant is for you.
A search warrant for your friend's house who you are hiding in.
388
체포할 당사자가 다른 사람 집에 있을 경우:
if they don't have search warrant, they can still arrest you in your friends' place; but if any evidence of a crime is found there, it will be suppressed.
389
Protective sweeps are made
when agents or officers execute a search warrant or an arrest warrant inside a residence. Now generally agents are looking for people inside the residence who might interfere with the execution of that warrant.
390
Terry stop
Investigatory stop
391
Protective Sweep
인간의 사이즈에 맞는 곳 Search가능.
392
Reasonable Suspicion
supported by articulable facts of criminal activity.
393
More than vague suspicion or hunch
R.S.
- Running from a cop IS enough.
394
Probable Cause (higher standard)
Totality of circumstances that you have committed or are committing a crime
= can arrest you.
395
Terry Stop (lower standard)
Reasonable, Articulable suspicion you are up to some weird shit can stop you and briefly detain while the police investigate.
396
Reasonable suspicion
doesn't need to be based on an officer's personal knowledge.
397
Reasonable suspicion
can be based on other officers.
- collective knowledge doctrine.
or an informant's tip.
(the informant has to be reliable though. A named informant is a lot more reliable than an anonymous 911 call for example.)
398
If an informant (tipster): 9시30분에 그 핑크 플라멩고가 차에서 내릴 거다: 진짜 9시30분이 되니 핑크가 차에서 내림.
Sufficient indicia of Reliability
399
Reasonable suspicion
enough to detain and frisk for weapons.
400
If police are secretly stoppin gyou for another reason,
they can always pull you over if you commit any minor traffice infraction.
401
EG they think you are a drug dealer.
They can get behind you and just follow you for 3 hours to see if you do ONE Rolling STOP. then pull you over.
--> Pretextual stop. OK.
402
Terry stop: how long?
As long as it takes to issue the traffic citation if you are in the car.
--> They are trying to get probable cause.
--> They can't wait around to try and manufacture it.
403
If it is not a traffic stop
The police have no specified time they can detain you for honestly, but a reasonable time for them to verify their suspicions will be the standard.
404
When police are briefly detaining you in a Terry stop
they can pat the outside of your clothing to check for weapons.
- For officer safety.
405
But if the officer feels sth that they definitely know is a weapon or drugs,
they can pull it out of your clothes.
- Plain Feel Test.
- BUT they can't reach into your pockets.
- "Could these fuckers really have felt the outline of guns or drugs and known with reasonable certainty that is what it was?"
406
Standing:
Hotel guests (overnight) YES.
Drivers of rented cars YES.
- Possessors of property can contest a search; like people who are carrying a back pack or purse.
- Casual visitors NO.
407
Standing your ground on the back.
Clients not to fuck up our motion to suppress if they get pulled over.
408
A car passenger does not have standing to contest a search
of someone else's car if they have no ownership interest in the car.
409
They do have standing to contest the BASIS of the original stop
whether there actually was a traffic violation committed; because they themselves were seized when the stop occurred.
410
When Probable Cause exits to search the whole care;
the Closed Containers of the Passenger can be searched too;
not just for officer safety, but because any other rule would unnecessarily dim the ability of the police to enforce the 4th Amend.
411
Privacy Interest
1. The sound of your voice.
2. Your handwriting.
3. Your bank account records
4. Any shit seen open firleds; even if police trespass onto your neighbors land to see it.
5. Shit can be seen from an airplane; helicopter.
6. Open fields; even if they are fenced and police hop the fence.
7. Odor coming from your car
8. The location of your car on a public street. but they cannot secretly GPS track your cr.
1. Thermal imaging on your house while sex. NO.
412
Private Interest때문에 Search안 되는 것
1. Paint on the outside of your car (cops can roll up and scrape this off for an accident investigation. YES
2. DNA samples if someone is arrested for felony. YES.
413
Warrant
must be based on Probable Cause.
- Must be execute without reasonable delay (because Probable Cuase can disappear).
414
Warrant
particular place and items to be seized. The police cannot exceed the scope of the warrant in their search.
- Police looks for assault rifles in my client's home; the officer opened up a tiny drawer and stared emptying out pill bottles and charged my guy with drugs; NO.
415
Knock and announce rule
Their presence before forcing entry into a home; and then wait a reasonable time before barging in 20 sec unless they fear evidence is being destroyed (toilet flushing) or they think it would be too dangerous to announce their presence
416
Fail knock and announce
will not get the evidence suppressed. It does not trigger exclusionary rule and throw out the evidence.
417
Cops
just simply do not have time to get a warrant or there are reasons why they don't need one.
418
Search incident to arrest
1. 먼저 Arrest가 정상이면
2. Search: both open and closed spaces. OK.
419
Search Incident to Arrest
Search has to happen at the time of arrest.
420
Even if your cellphone is in SILA search
they need warrant.
421
Plain view
1. lawful vantage point.
2. Physical access lawful (워런트 있어야 함: 길거리에서 경찰이 안에 있는 페인팅을 보고 들어간다? 안 됨).
3. Does the officer have probable cause such that he knows this shit is illegal upon seeing it?
422
Consent to search-
Voluntary, willing, and intelligent
- low IQ dumpster X
- Coercive environment 500 cops show up and surround you X
- Consent만이 능사는 아니다.
Cops can't think of it as foregone conclusion.
423
When co-occupants with access to the Whole place are present and objecting
Can stop search.
424
When co occupants with access to the whole place are not present
one occupant can allow a search of the whole space.
425
Roommate 1
cannot consent to search Roommate 2's room because no access.
426
When roommates has partial access,
they can only consent to a search of the "common areas" and their OWN room.
-They can't consent to search of the other roommate's room, whether the other roommate is present or not.
427
Landlords and hotel owners
can't give consent to the police to search your place hotel room.
428
Evanescent Evidence
If evidence can disappear:
police can usually burst in without a warrant or take the physical evidence on scene.
429
Exigent Circumstances/ Community Caretaking function
1. Emergency
2. A search not motivated by a desire to obtain evidence
3. Relationship between the emergency and the search.
- Search and emergency must be connected and have a mothafucking nexus.
430
Inventory searches
Impounding a car
- Normal police procedure이어야 함.
- They can search the closed containers in it as well.
- They can strip search you before you are admitted into jail.
431
Public school search.
Reasonable suspicion.
YES.
1. Tips.
2. Direct observations that you were breaking rules.
3. Prior history of breaking this particular rule.
432
Public school search. NO.
No Reasonable Suspicion through
1. Just thinking you are a fuck up rule breaker.
2. Rumors.
3. Or simply hanging out with the bad kids.
433
Abandoned property
yes, you can pick it up.
434
Border searches, airport searches
No warrant.
No Reasonable Suspicion needed.
435
Border searches
strip search: needs Reasonable Suspicion.
436
Police check points & roadblocks
YES. for mobility, and safety. every 10 car eg.
437
Wiretap
ALL needs warrant.
438
Exclusionary Rule
4th, 5th, and 6th, Federal Law
- not State Law,
- not grand jury violations
- not civil law
- not parole proceedings.
439
Inevitable discovery
When the police would have discovered the same evidence despite the illegal means they originally used to get it.
440
Difference between Independent source / Inevitable discovery
Independent source - Completely Untainted by the illegal conduct.
441
Intervening Act of Free Will
Defendant themselves will purify the fuck up that happened earlier.
442
Intervening Act of Free Will
If the cops beat up the defendant to confess or illegally arrest him; but then later on the defendant shows up and confesses to everything; this will purify the taint of illegality.
443
Intervening Act of Free Will
Some illegal shit happened but then the defendant's intervening act "broke the tain" of the illegal act.
444
5th Self incrimination
If you can show a real threat of criminal prosecution in a civil case; you don't have to answer the question.
- If you don't assert it right away in a civil hearing, it will be waived at a later criminal hearing.
445
Your failure to testify in civil cases;
there is no constitutional right to remain silent in civil cases.
446
Derivative immunity
you can still be prosecuted.
447
You can be compleeled to testify
if you are granted immunity.
448
When it comes to compelled testimony in front of a grand jury;
they must give you immunity (at the very least derivative) if they are going to force you to give testimonial state.
449
Testimonial statements
establishes the elements of the crime.
450
Grand jury can force you to just repeat the words that someone else said for example
because they can't really use that while prosecuting you.
451
Grand jury and immunity
they can force you to say random shit but they can't force you to say or give them any shit that could fuck you over.
452
The gov does not have to give you
full transactional immunity to forc you to testify, only derivative use.
453
If someone is being interrogated during a normal traffic stop
not in custody.
454
If cop walks up to you on the street to ask you questions about a recent string of armed robberies in the area
not in custody
455
If you are being escorted out of your jail cell or at a probation interview
not in custody
456
Voluntarily going to the police station to talk to the cops
not in custody
457
All about whether your freedom of movement is restrained
based on the totality of the circumstances.
458
If they are accusing you of some shit;
interrogated.
459
If they are investigating some shit and you are witness
you are not being interrogated most likely.
460
Voluntary sts
gets in.
461
Waiver of Miranda (Knowing and voluntary)
- They will look at both Mental and Physical Factors: Age, Intelligence, etc.
462
미란다 야부리 (Goat)
1. No miranda-> Bad Confession.
- If it was un-intentional No miranda,
2. Miranda
3. Good confession
--> the 3. Good confession (2nd confession) gets in.
(not tactical)
463
Line up & Show up, or photo ID
to prove a due process violation we need to show improper police influence.
464
How remedy a violation of due process relating to identification?
Exclude in court idenfication if the out of court identification got fucked up somehow by police
465
The prosecution can defeat this exclusion (재판장에서 쟤다 하는 경우)
by showing that the witness had ample & reliable opportunity to view the defendant prior to the identification.
466
Gideon v. Wainwright
- No right to a lawyer
fingerprints,
blood samples.
- no right at parole or probation revocation hearings.
467
Gideon v. Wainwright (lawyer)
- Not at the initial appearance but at either
1. Preliminary hearing.
2. Arraignment
3. Bond hearing.
YES "Adversarial proceedings" (Goat).
468
6th is not violated if
the jailhouse snitch is just a "listening post" who doesn't say anything.
469
6th
if the informant is asking questions or even bragging about himself trying to elicit information from def : XXX
470
Ineffective assistance of counsel
1. Representation: objective standard of reasonableness.
2. The client was actually prejudiced;
3. reasonable probability
3. Outcome would have been different if the lawyer hadn't fucked up.
471
Death penalty case:
the lawyer fails to investigate any mitigatin information about the def: then, ineffective per se.
472
If someone fails to file a notice of appeal or motion to suppress;
ineffective.
473
Not informing a client that if they get a felony they might be deported
ineffective.
474
Excessive bail
Violation of the 8th Amend against cruel and unusual punishment.
475
Doing something like setting a 10 million bail on a 1st time DUI violates the
8th Amen Cruel and unusual punishment provision.
476
Excessive civil forfeiture
violation of the 8th.
477
Grand Jury
Probable Cause Determination.
- Not a trial.
- Grand jury affirms the charges.
478
Brady v. Maryland:
Prosecutors have a duty to hand over all evidence that could be good for the defendant or it will be a Brady violation.
Failure to disclose any exculpatory evidence or impeachment evidence which helps the defen will be due process violation and is grounds for reversal fo the conviction.
479
Brady v. Maryland
Helpful evidence
+ Prejudice from Def not getting it.
= Overturn it. Reverse the conviction.
480
Right to Fair Trial
Def can't appear in shackles at trial. No excess publicity. Def shouldn't be wearing prison clothing at trial.
481
Sentencing enhancements
factual.
Jury. not judge.
--> enhancement beyond a reasonable doubt.
482
6th Right to confront witnesses
not really.
- def themselves can actually be removed if they are disruptive.
-
483
Codef: severance of the two trials. not to prejudice you.
co conspirator statement against the defendant will not be admmissible if they are both on trial at the same tiem unless the co conspirator testifies and is subject to cross.
484
Double jeopardy does not apply
1. When the jury is unable to agree on a verdict (hung jury).
2. Retrial after a successful appeal is obviously not a double jeopardy issue. It is new trial.
3. Mistrial for manifest necessity (e.g., if the def develops a weird form of cancer halfway through the trial and has to get an operation).
485
Manifest necessity
It's when the judge determins the reason for a new trial is SO DAMN IMPORTANT that the double jeopardy clause just cannot attach.
- The proceeding would be insanely unfair to one or both of the parties; so it just can't go.
486
Double jeopardy truly only attaches when we have 3
1. After convictions,
2. After you are acquitted,
3. After mistrials due to prosecutorial misconduct.
487
Manifest necessity
--> new trial.
1. 2 jurors disappearing randomly.
2. Defense refers to inadmissible shit in opening statement.
3.A witness was hospitalized for a month.
4. Defense counsel disbarred.
5. Def got cancer.
488
Lesser included offense;
A jury could rationally find the def guilty of the lesser included offense;
you might be charged with aggravated theft over $10,000 v. Regular Theft only $1,000
if there is a dispute on the price of hte goods; you should get the instruction for the lesser included, so longas ther is some evidence that a jury could rationally find you guilty of the lesser included.
489
Ex post facto laws
You can't have a law shich makes shit that wasn't illegal. illega after you did it.
490
Cruel and Unusual Punishment 8.
1. Conditions of where they actually have you confined or imprisoned is fucked up.
2. The punishment itself is very harsh.
491
3 Strikes
Not cruel and unusual
492
Death Penalty is not allowed for 3 types of ppl
1. Mentally insane. even if they went insane while on death row. it is still considered unjust to execute a mentally insane person.
2. Someone who is mentally disabled. No IQ level: you need to present evidence to try and prove it.
3. A person under age 18 when crime was committed.
- Jail for life without the possibility of parole is also not allowed for minors.
493
BoP: prosecution:
Beyond the reasonable doubt.
- Elements of
1. you stole
2. you wore a green hat.
--> not a judge instruction to the jury.
---> Defendant doesn't have to proof anything
494
Def Burden of Proof:
affirmative defense
- Self defense;
-they must prove it by a preponderance of the evidence.
- Alibi is not affirmative defense.
495
Alibi 나 검사가 저렇게 주장하는데 범죄 현장이 아닌 멕시코에 있었다.
1- Def proves affirmative defense by a preponderance of the evidence.
2. Prosecution disporvea alibi beyond a reasonable doubt.
- because it is just attacking an element basically and isn't a true defense.
496
Plain error
defeats waiver.
497
Plain error
affect substantial rights.
498
Harmless error
Error was harmless beyond a reasonable doubt and did not prejudice the def. the conviction is not overturned.
499
Structural error
non-harmless error
1. Not allowing someone to have a lawyer at trial.
2. Not allowing someone to consult with their lawyer at trial.
3. Having a weird instruction on reasonable doubt that confuses the jurors.
4. Racial discrimination in the jury selection process.
5. Not allowing someone to go pro se.
500
4th 가 침해되지 않았어도
주법이 그것을 늘릴 수 있다. E2 1
501
Arizona v. Gant
The Court held that the mere fact that a driver has been arrested for a traffic violation does not automatically entitle the police to do a complete search of the passenger compartment.
처음에 Probable Cause가 없었던 경우.
502
Cal v. Carney: Police could search the driver's car without a warrant
if they had Probable Cause to believe that it contained contraband or evidence of crime. 워런트 없이도 됨.
Scope: 그 마약 크기만한 것은 다 됨.
503
Interrogation could occur
Whenever the person in custody is subject to either express questioning or its functional equivalent
504
Interrogation
+ arranging involves sending a parent trust person to speak to the def alone and secretly record; that is interrogation.
505
5th Self incrimination is about
In court identification
- Communications, testimony, not against compulsion which makes a suspect or accused the source of real or physical evidence.
506
Witness standard for 5th
reasonable possibility that she will incriminate herself.
507
6th: Right to be confronted with the witnesses against him.
Confrontation
1. Right to compulsory process.
2. Right to cross examine hostile witnesses.
508
Confrontation prevents
in some cir, the use of one person's out of court confession against another.
509
S Ct A's confrontation clause
violated if the confession of B, naming A as a co-participant. even if jury was instructed not to consider. (Bruton)
510
wheer the def who confesses declisnes to take the stand.taeks the stand, denies, confession
opens himself up to the other co-def cross exam about it. there is probably no confrontation clause problem.
511
Prior conviction
gets into sentencing.
512
Malice
Evil intent
513
Aforethought
Premeditation
514
Goat) Rage, fear, passion
downgrade first degree murder to (manslaughter)
515
CL murder--> Manslaughter
1. a man who kills his wife's lover immediately afer he finds him in bed with her
2. a long term victim of domestic abuse killing their abuser.
3. A victim of battery who uses disproportionate force and goes way too hard an dkills their attacker.
4. Someone who mistakenly believes they are attacked and then ends up killin gsomeon eelse.
5. Someone being taunted or threatend who loses control an dkills someone else.
516
We need a cool
not hot mind for murder.
517
Intent cool mind premeditation
Murder
518
Voluntary intoxication
1st degree murder charge down to a depraved heart murder (a murder committed with recklessness rather than intent).
519
Voluntary manslaughter
Intentional killing committed in the heat of passion.
- provoked.
520
Passion
Upset, Furious, enraged at the time of the killing.
521
Adequate Provocation
1. False arrest.
2. Cheating 현장에서 보는 것.
3. Mutual combat.
4. Extreme batteries, assaults
522
Voluntary manslaughter
more like an argument.
- you are asking the judge to give the jury the possibility to charge you with manslaughter through a jury instruction.
If the jury could find that the cir leading up to your murder would caus a reasonable person to heat up; then the judge will allow you to have the lesser voluntary manslaughter instruction given to the jury.
this gives the jyr a chance to convict you on a way less serious charge than 1st degree murder.
523
Not Adequate Provocation
1. Making fun of someone.
2. Pointing at them.
3. Low level arguments.
524
Words alone
not enough provocation.
real shit has to go down.
525
Imperfect self defense
Provocation
Downgrades murder from 1st degree to Voluntary manslaughter.
526
PPNC.
Pretty Peonies Need Care
-Passion
-Provocation
-No
-Cool-down time
527
Chill
the murderer was no longer in fear; or
no longer angry with the victim.
528
If you intend to commit great bodily harm against someone with a deadly weapon.
First degree murder.
529
Unintentional killing
Depraved Heart Killing.
Second degree murder.
530
Russian Roulette
Anything that is highly reckless will qualify as a depraved heart murder.
531
Involuntary manslaughter
unintentional killings cause through simple negligence.
532
Depraved heart murder
extreme recklessness.
533
MEE: Reckless driving alone is not Reckless Disregard of Human Life.
It should be coupled with the intoxication or other aggravating factors.
534
If someone has a legal duty to act; they do not act; and this results in a death
the most you can be charged with is involuntary manslaughter.
535
Involuntary manslaughter
in the form of negligent homicide is just you being a fucking idiot texting while driving on the highway, leaving your kid in a hot car or not feeding them, falling asleep in a car.
536
Depraved heart murder is
you being a completely insane fucking idiot; that is, smoking crack, drinking, and texting while driving while you know your brakes are completely shot.
537
First time you drive drunk and accidentally hit someone
involuntary manslaughter. negligent homocide.
538
If it is your 4th DUI and you are driving at 120 mph drag racing drunk
this will likely be depraved heart homicide.
539
The line between depraved heart murder and negligent involuntary manslaughter
Depraved heart murder requires an extreme indifference to the value of human life;
- gross negligence involuntary manslaughter requires only wanton and reckless disregard for human life.
540
Involuntary Manslaighter
Junior varsity version of Depraved Heart,
-- Malice is just simply not there.
541
Felony murder
Inherently Dangerous Felony
542
Felony muder
you must kill someone even accidentally
while in the process of a mothafucking BARRK felony.
543
BARRK felony
1- Burglary
2- Arson
3. Rape,
4. Robbery
5. Kidnap
544
Felony murder
Murder that happens in the course of an underlying BARRK felony.
545
Felony murder is treated as
1st degree murder when it is charged.
546
The prosecution must actually
prove you committed the underlying offense.
547
Felony murder: Killing itself
must take place during the actual felony or during flight immediately after the felony.
548
Felony murder: I do kidnapping then
I flee the scene and hit someone in my car: that is felony murder.
549
Felony murder
Goat: not restricted to just foreseeable death. so long as the death is a direct result of the felony... you will still be charged with felony murder.
550
Felony murder (Goat)
Even if the person was going to die anyway from (he had congenital heart disease or sth) the heart defect it is still felony murder.
551
Felony murder
You need to be guilty of the underlying felony.
552
If you have a successful defense to the underlying felony
You can't be charged with Felony Murder.
553
Battery, Assault, Manslaughter
이들은 Underlying Felony가 아님.
554
Armed Robbery Gone Wrong
that results in a death.
555
Are Felon liable for the death of cofelon? Maybe. Approaches: 2
1. In jur which follow the proximate cause rule:
You will be guilty if an innocent party kills another innocent party on accident in the course of your BARRK felony because you set the killing into motion.
556
2. In jurisdictions which follow the agency rule:
You will not be guilty of felony murder because the police and bystanders were not agents of your felony or helping you in anyway.
557
What happens if you kill someone
during a misdemeanor or non- BARRK felony?
558
Misdemeanor manslaughter
When a death occurs accidentally during the commission of
1. Non-BARRK felony OR
2. A misdemeanor (punishable by less than a year in jail).
559
형량이 1년 미만인 짓을 하다가 또는 NON BARRK FELONY짓을 하다가 사람 죽임.
Involuntary manslaughter via the misdemeanor manslaughter doctrine.
560
예. You are speeding 20 miles over the speed limit (a misdemeanor)
you kill someone.
=Involuntary manslaughter.
= Misdemeanor manslaughter.
561
If the problem mentions Misdemeanor...
answer will be Manslaughter.
562
M.M.
Male Models.
Misdemeanor. Manslaughter.
563
Involuntary Manslaughter
1. Criminal negligence.
2. Intent to inflict slight injury.
3. Misdemeanor manslaughter.
4. Failure to act.
564
You need but for causation and proximate causation
to be found guilty of murder.
565
Attempt
Specific intent to do sth combined with behavior which gets you close to doing it.
566
Attempt Element 1:
Def specifically intended to commit the crime.
567
Attempt Element 2
Took a subsequent step beyond mere preparation to commit the crime.
568
Dangerous Proximity Test
You must have completed every fucking step of the crime but get stopped short before it is completed.
569
Dangerous Proximity Attempt
You arrived at the actual place of the crime; with the necessary tools to commit the crime.
570
Attempted Murder
You need to complete the final step before the actual crime to be found guilty under the dangerous Proximity Test.
571
MPC: Substantial Step Test
Wayne LaFave: Substantial Step doesn't have to be the "final step" before completion of the crime. But it definitely has to indicate that this motherfucker was trying to commit the crime.
572
Ex. Substantial Step
1. Following someone you are trying to attack.
2. Lying in wait in someone's grandma's house, even if they dont' show up.
3. Putting an explosive device in a car but not detonating it.
--> Final Act that makes you Dangerously close to success.
573
Final act before success (CL)
Big step indicating intent (Modern MPC approach)
- 폭발물 설치등 Final Act빼고는 다 했다.
574
CL: you have to be in a crime scene. (Substantial Step)
you don't have to have the weapon in your hand.
The intended victim has to be at the crime scene.
575
CL:
Dangerously close to success.
576
MPC
Maybe not dangerously close to success but definitely a step showing the world you are a psychotic motherfucker who is trying to do this crime.
577
Attempted murder requires
intent to murder.
578
No attempted negligence crime.
No attempted felony murder.
No attempted recklessness.
579
Attempted murder of Kyle:
for taking the substantial step of trying to poison him. The fucker was dangerously proximate and took a substantial step I would say, he is guilty of attempt under both tests.
580
Hypo: Kevin tries to poison Kyle, felt bad; and took it out and placed it next to the trash.
Chad, Kyle's friend; drinks and dies.
--> Chad:
Kevin is still be charged with murder; but under a theory of extreme recklessness depraved heart murder or possibly only manslaughter if the jury finds he only acted with criminal negligence.
581
You cannot withdraw or abandon a completed attempt.
Once you go beyond mere preparation and take a substantial step or get dangerously close: you are guilty.
582
Legal Impossibility
is indeed a defense to a charge of attempt.
583
Legal Impossibility
Let's say I think it is illegal to go fishing on Sunday.
So I do it anyway, attempting to break the law that doesn't exist.
584
I can't attempt to break a law
that doesn't even exist in the legal system.
So Legal impossibility is a defense to attempt.
585
Conspiracy
1. Agreement with one or more persons,
2. Intent to agree,
3. Intent to pursue an unlawful objective.
586
Common Law: Cops:
Bilateral Approach for agreement
Cops cannot be involved for conspiracy.
587
Under CL, both people actually need to genuinely agree with each other commit an unlawful act.
An undercover cop and def cannot agree to conspire; because the undercover cop is faking agreement to get an arrest. It is not conspiracy. Under common law. ONLY UNDER MPC.
because no meeting of minds.
588
Unilateral conspiracy approach
MPC. secret agent can get to get convictions. OK.
MPC: as long as one person agrees, it doesn't matter if the other person is pretending to agree such as in a situation with an undercover the first person will be liable for conspiracy under the stricter MPC approach.
589
MPC Conspiracy:
Overt act
590
Overt Act MPC conspiracy
can be . showing up to the place you have agreed to rob, or setting up a meeting about it.
- Noncriminal preparation step.
591
Common Law Conspiracy
Intent to pursue unlawful objective / no cops.
592
MPC Conspiracy
Agreement + any overt act.
Cops allowed.
593
Every member of the conspiracy is liable for the acts of other members so long as they are
1. Foreseeable, and
2. In furtherance of the conspiracy.
594
Even if they don't know each other, so long as everyone's act are foreseeable and in furtherance of the conspiracy;
they are all liable and all going down together.
595
The arrest of a single co conspirator
will also not end the conspiracy either.
596
The prosecution must show that the conspirators
intended to agree but also that they intended to commit every element of the offense.
597
Conspiracy: agreement
based on circumstantial evidence.
598
Conspiracy: Corporation
If there are 2 people that work for the same corporation conspiring, then, the corporation can be brought in as the 3rd conspirator and charged if the executive are in on it.
599
We can't have One agent + One Corp.
We can have 2 agents + One corp.
600
Withdrawal Conspiracy under CL
No.
Under CL, you can't withdraw from a conspiracy. The moment you idiots agree on sth unlawful, the crime is completed.
601
Although you can't withdraw from the conspiracy itself under CL
You can withdraw from subsequent crimes that happen later on.
602
How do you withdraw? Conspiracy
Tell everyone. Absolutely fucking everyone else in the conspiracy that you intend to withdraw.
+ CLEAR.
Then you can withdraw from later crimes in the conspiracy.
603
Modern: You can't withdraw from the actual conspiracy; but you can withdraw from the conspiracy itself,
as long as you withdraw before the overt act happens which is hard to do.
"preparation act" hard to withdraw before this ecause it could be as little as a phone call or scoping out the scene, it doesn't even have to be criminal.
604
In order to withdraw from later crimes in a conspiracy under MPC,
You must
1. Give timely notice to all other co conspirators (timeley, not after the crime you career criminal) AND
2. You have to really try to take down the conspiracy with an overt act.
- Call 911, warn the victim or Stop the crime itself.
--> you have to truly stop the whole thing.
605
Withdrawing from conspiracy itself
1. CL: NO.
2. MPC:Agreement + preparation act. before Preparation act: you withdraw.
606
Withdrawing from the subsequent crimes
1. CL: you must tell every co conspirator clearly that you are out for good.
2. MPC: you must voluntary renounce the conspiracy and do sth to thrwart the success of the conspiracies purpose. Tell the cops.
607
Telling people + fucking up the conspiracy
magic recipe.
608
Conspiracy Withdrawal
Can't be by a fear of being caught or flight.
609
Impossibility
is not defense to conspiracy.
610
Solicitation
asking someone else to commit a crime, and intending that they carry it out.
611
Solicitation
you can ask someone
you can encourage them.
you can even hire a fucking hitman on the dark web.
612
Solicitation
Specific intent:
- you must have the actual intent that the crime will be carried out.
- it doesn't matter whether the person you solicit agrees or not.
613
Crime is completed when asking is done.
Ask and you shall receive violation of the law.
614
Solicitation
Asking + intent that the other person commit the crime.
615
A.I.
1. Ask.
2. Intend.
616
If def asks you to buy illegal drugs off him and truly intends for you to buy them;
he is arrested immediately by an undercover cop and doesn't have any drugs on him (maybe he forgot them at the house or sth)------ Solicitation.
617
He intended for the undercover to buy the drugs'
it doesn't matter that the drugs were not there.
The fucker actually meant for it to happen.
618
Solicitation and attempt merge into
complete crime all the time.
619
Solicitation is not attempt because
Asking a hitman to kill someone intending that they kill them is solicitation but just asking fails the dangerously proximate (CL) and substantial step (MPC) test, so it is not attempt.
620
Goat tells Rainbow to rob a bank for $10,000. Then this motherfucker Rainbow actually did it. Who gets charged for robbing a bank?
Both.
- Goat under accomplice liability theory.
- the same as regular charged.
MERGED.
621
Rainbow and Kevin asked Goat to hack into PC, and Goat actually tried to do it;
Rainbow and Kevin will be charged with Attempt, not solicitation.
622
anytime solicitation is combined with another crime;
the other crime absorbs solicitation.
623
If you are charged with conspiracy and solicitation
you will be charged with conspiracy; since solicitation will fall off and merge.
624
Attempt and Conspiracy
do not merge.
625
Conspiracy and completed crime
do not merge.
626
Accomplice
Command, aid, help, ask, encourage someone to commit the crime.
or just help them plan it.
627
Accomplice
intent
- 1. intent to aid.
- 2. Intent that the primary party actually commit the offense.
628
Accomplice
Presence
+ Silent approval
= Not good
629
The principal
does not have to even know the accomplice is helping for the accomplice to be liable.
630
He, 정부, facilitated the shit with the intent to aid the principal (husband killing wife)
Accomplice.
631
Accessory before the fact
Before I commit a crime;
632
Accessory before the fact
before committing.
They assisted, helped, or instructed the principal to commit the crime beforehand.
= the same extent as the perpetrator.
633
Accessory after the fact
help escaping.
The person that has knowledge of another person's guilt and intentionally tries to help them avoid arrest or conviction.
634
Accessory after the fact
form of hiding someone.
Helping someoen escape;
or giving false information to the police.
635
Accessory after the fact
1. A felony crime was actually completed.
2. The accessory knew about the felony crime.
3. The accessory personally gave adi to the felon to prevent them getting arrested by police or caught or convicted.
636
Obstruction of justice
Being accessory after the fact won't get you charged with the full crime of the principal.
637
Accessory before the fact did not know that he was helping the fucker so rode for him.
No.
638
Accessory after the fact;
driving everyone and helping them to evade law enforcement.
639
E2 20 Members of protected class
cannot be members of a conspiracy to commit the crime that is designed to protect that class of people.
(statutory rape의 보호 대상 등)
14 Year old girl--> Because of plurality, the man cannot conspire. with the protected girl.
MPC와 다른 점. MPC는 Unilateral man go jail
640
E2 Q 37 Felony Mulder
if Def while he is in the process of committing a felon, kills another (even accident), the killing is murder.
if the killing that took place during commission of the felony was by an innocent party (the customer) and he killed an innocent party (the clerk) then the robber is not responsible.
641
E 2 Q 39 S Ct
8 th Death penalty: the use of the death penalty on def "who does not kill himself, attempt to kill or intent that a killing take place or that letahl force may be employed," not imposed upon Dawson.
642
Criminal negligence
"conscious disregard of a known danger."
- Act of omission : involuntary manslaughter (father)
643
Specific intent crime
"Two Special Defenses"
- 1. Getting voluntarily drunk as fuck or intoxicated.
- 2. Mistake of fact Whether reasonable or unreasonable.
644
Intoxication
whether voluntary or involuntary: proper defense to specific intent crimes.
645
Involuntary intoxication
is always defense to any crime; even strict liability crimes. if someone slips 50 hits of acid into your drink for example whatever you do after that is pretty much fair game.
646
Intoxication
is not a defense to reckless crimes.
647
Intoxication may bring
1st degree murder; (premeditation and planning) down to a 2nd degree murder.
648
Mistake
we begin with specific intent mistakes both reasonable and unreasonable.
649
자기 집인 줄 알고 들어갔는데 남의 집
Reasonable mistake; defense to the specific intent crime of burglary.
650
Still can use as a defense.
Unreasonable mistake fact
- You are 50 miles away from your own house.
자기 집인 줄 알고 들어갔는데 남의 집
651
Malice
Reckless disregard of an obvious or high risk that the particular harmful result will occur.
- Common Law Murder
- Arson
652
Mistake is a defense to malice crimes
so long as it is reasonable.
653
Reasonable mistake
defense to malice crimes.
654
Malice: Arson: 산불 낸 것.
Wicked mind; recklessness state of mind를 증명해야 한다.
Defense of reasonable mistake.
-You had a permit.
you tried to burn the bar while condition were safe;
you did. not have the proper wicked mind state of recklessness.
655
General intent crimes
all you had to intent was to do the actual crime itself; not intend any 3rd thing happening. When someone rapes someone for example the prosecution doesn't have to prove that the person specifically intended a further result beyond the act itself (such as to cause emotional damage)
656
General intent crimes
you just have to have the intent to move your body in a certain way to do the crime no further intent beyond that.
657
Reasonable mistake
Specific intent crime은 Unreasonable mistake까지도 디펜스가 되는 것같고
General intent crime, Malice crime (Arson, Murder)는 Reasonable mistake만 취급하는 것같음.
658
General intent crimes
1. Rape
2. False imprisonment
3. Battery
4. Kidnapping.
659
General intent crimes;
Actus reus + moral culpability.
660
Reasonable mistake negates
Moral culpability.
you shouldn't be charged with sth if you didn't understand the situation.
661
General intent crimes
we only care that an actus reus occurred with a morally culpable state of mind (someone raped, or battered) we are not worried about that the def was motivated towards a result like we are in specific intent crimes (i.e., larceyny with intent to deprive permanently)so
662
General intent crime
unreasonable mistake NO 안됨.
Reasonable mistake만 됨.
663
Unreasonable mistake
has actus reus + moral culpability도 있음.
= is considered morally blameworthy and satisfies out test
= so it is not allowed as a defense.
664
Specific intent crime
Actus reus + culpability + the prosecution has to prove such as the intent to commit a felony there in.
--> mistake ? jury will beleive you didn't intent to commit a felony therein. it is an element.
665
Strict liability
no defense
666
Strict liability crimes
1. Morality
2. Regulation.
667
Attempted Strict liability
1. Attempted Statutory rape;
2. Attempted selling liquor to minors.
--> your mindset becomes relevant.
668
If you actually commit the crime;
mindset is not relevant at all.
669
MPC
has no specific or general intent crimes.
670
MPC
1. Purposefully
2. Knowingly
3. Recklessly,
4. Negligently
671
Purposefully
you did the crime intentionally.
672
Knowlingly
you had knowledge of a particular fact or were aware of a high probability of the existence of the fact
673
Deliberately avoiding the truth
is not a defense and the prosecution can still circumstantially prove that you were aware of a high probability of the existence of a fact.
674
Recklessly
just a gross and knowing deviation from the standard of care; like negligence +
675
Negligence
you should have known you were deviating from the standard of care and that a certain result would occur;
676
Recklessly
MBE presumes to have at least mens rea of recklessness; so if none is specified; assume that the crime at least requires recklessness. because it would be unfair to punish someone who did not know what they were doing was wrong.
677
M'Naghten Rule
1. Severe Mental Illness
2. Not understanding what you are doing is wrong.
e.g., Schizophrenia, or Hallucinations.
678
Irresistible Impulse Test
Even though the def knows the act is wrong, his mental defect gives him an overwhelming urge to commit the crime anyway.
679
Durham Test
So long as your conduct was the product of a mental disease or defect at the time of the crime; you escape liability via insanity.
680
Durham Test
drug addict is acting under the influence of a mental disease at the time of the crime; even if it si because they are a drug addict; this is enough to escape liabiluty.
BUT FOR
681
MPC:
1. As a result of mental disease;
2. Def lacked the capacity to either appreciate the criminal nature of his conduct; or
3. Conform his conduct to the requirements of the law.
682
Difference: MPC & M'Naghten Test
Whether you understand it was wrong or not.
683
Under MPC
even if you know it was wrong; if you can't conform your conduct to the law; like our friend who tried to kill Reagan; you may escape.
684
Under M'Naghten rule
You actually had to not know that shit was wrong.
685
My Dog Nibbles Kale
MDNK
M'Naghten Do Not Know.
686
M'Naghten Rule
You did not know what you were doing was wrong.
687
MPC Rule:
You knew, but you couldn't conform your conduct to the law.
688
Children under 7
presumed to not have criminal intent
689
With children 7-14
rebuttable presumption of no criminal capacity; the prosecution can try to disprove but the burden is initially against them.
690
Murder
Causation.
- Proximate causation
<--> Too remote.
691
Justification
1. You were under an imminent threat of death or bodily harm which was not your fault.
2. You had no legal alternative to violating the law;
3. You had to do some illegal shit to avoid being hurt.
4. You did not do the illegal shit for any longer than necessary.
(약간 MEE에 나왔던 Duress와 비슷)
692
Self Defense
1. Non-Deadly Force: you are allowed to use nondeadly force anytime you fear an imminent harm.
2. Deadly force: <--> Deadly force.
- The majority : you have no duty to retreat.
693
Deadly force: minority approach
you can use deadly force when you believe deadly force is about to be used on you or a 3rd party; AND you have treid to retret first if possible.
694
There is no duty to retreat for those who are:
1. in their own homes;
2. are police officers; &
3. Are being raped or robbed.
695
You can use self defense if you are the aggressor;
but only after you have tried to retreat and told the victim that you are done beating the shit out of them.
696
If you provoke someone into using force against you
SOLELY so you can kill them; you cannot allege self defense as a complete defense.
-e.g., If you tell your wife you cheat on her and she tries to stab you; then you shoot her; this is not allowed; 1st degree murder
697
Can you ver "resist arrest?"
You can use reasonable nondeadly force to resist a police officer in only 2 scenarios:
698
Nondeadly force to resist a police officer;
1. The arrest is unlawful.
2. The arrest is lawful but police are using excessive force adn beating the shit out of you.
699
Defense of Property
No Deadly force to defend property
700
Defense of Property
1. You must make a request for the person to stop fucking with your stuff before yo use force to protect it unless the request would be clearly futile.
2. Force can only be used to prevent the interference against the property not to get it back.
701
Defense of property
If someone is beating your piano with a bat, you cna use nondeadly force against them; but
if they take the piano and are running away from it, you can't bask them in the back of their head.
702
Duress
1. There is an imminent (and reasonable) chance of serious bodily harm being threatened against the def's family; or loved ones (IMMINENT).
2. The def is required by the crazy person to commit the crime to avoid the harm.
3. The threat is reasonable and immediate.
703
Duress
1. The Thing has to be fucking happening right now.
2. No future threats.
BoP: Def has to prove these elements by a preponderance of the evidence.
704
Duress
is a defense to all crimes except murder (regular or attempted).
705
Necessity (Tort)
마을 전체 다 태우기 전에 일단 4번째 집을 태우는 것 등.
706
Private Necessity
usually Trespassing onto someone's property because you will be subject to harm if you do not or your property will be damaged. OK if it is reasonable.
707
Public Necessity
when your criminal conduct is necessary to prevent some greater harm happening to society; and this is allwoed so long sa the harm is imminent and your conduct is reasonable.
708
In Necessity:
consent is not defense unless the crime itself requires consent as one fo the elements.
709
Implied consent:
sports game only.
710
Rape and Battery as crimes
require a lack of consent within their elements. so consent is a defense to rape and battery charges.
711
Consent
must be given freely; willing, and voluntary as well.
712
The party giving consent must be capable of consent
not mentally unsound;
you can't fraud someone into giving you consent.
713
Entrapment is
when a def is induced or coerced into committing a crime by a government official that they would not normally have committed otherwise.
714
A state acquires jurisdiction over criminal acts; 2 reasons
1. The crime occurred there.
2. The unlawful result of the crime happened there.
715
Reckless disregard of human life
영아 병원 안 데리고 간 케이스 (종교적 믿음)
--> Defense: no intent to kill.
no depraved heart.
--> 오답: The parents were proximate causation. OK. affirmative to care for a minor child.
716
Reckless
conscious disregard of a substantial and unjustified risk of the element in question.
717
Strict liability
1. They are regulatory in nature
2. They do not involve serious penalties;
3. They involve serious harm to the public
4) it is easy to determint eht true facts.
718
Strict liability
food, drugs misbranded articles, hunting license requirements.
719
The 3rd party using deadly force to another person's who are burglarized
the defendant's home. OK.
720
Smith 17 years old (minor)
can't get death penalty because juvenile
721
Adults with intellectual disabilities IQ 70 below.
at the time of capital offenses; Categorically ban
722
No death penalty for
adults with mental illness.
Def who is mentally incompetent at the time of the scheduled execution
(doesn't know what the gov is doing)
723
What if hearing, Defense says, "uncle abused Smith since 8."
Mitigating Evidence: YES.
724
If Prosecution objects: the evidence doesn't prove Smith 18 was insane at time of murder
Judge overrules the objection.
The jury will consider the mitigating evidence.
725
Cruel and Unusual Punishment Clause
requires the admission of any relevant mitigating evidence offered during the capital sentencing phase.
726
Relevant Mitigating Evidence
Anything relevant to the circumstances of the offense or the def's background or character that could cause a rational jury to vote against the death penalty.
727
NonCapital Cases
Life imprisonment without Parole.
728
A life sentence without parole is cruel and unusual punishment? (teenager 18)
NO.
729
In non capital cases, Cruel and unusual punishment
Prohibits only grossly disproportionate punishments.
730
A lengthy prison sentence, life sentence without parole,
is not grossly disproportionate except for the rarest of felonies.
731
8th What is grossly disproportionate?
1. Gravity of offense,
2. Criminal record of Def
3. Length of Def's sentence compared to sentences imposed on the other defs.
4. Convicted of the same or similar offenses in Def's own jur as well as other jur.
732
1st degree murder teenager was NOT grossly disproportionate for life sentence without parole;
Smith is not cruel and unusual punishment.
733
What if Smith is 17 years old, Life imprisonment without parole?
S. Ct. Depends.
734
Could he receive a sentence of life imprisonment without parole (17 years old)?
-Homicide Offense
-Nonhomicide Offense
735
Nonhomicide Offense
Life imprisonment without parole is categorically prohibited for a def who was a juvenile at the time of the crime.
736
Homicide Offense
A mandatory sentence of life imprisonment without parole for a juvenile def is unconstitutional.
737
8th Amendment
To sentence a juvenile def to life without parole of homicide:
- Jury must consider all relevant mitigating evidence.
- Jury must be given the option of imposing a sentence of less than life imprisonment without parole.
738
Smith high on Meth 18: Could the state convict and punish Smith under 8th for his mere addiction?
No
739
Cruel and Unusual Punishment Clause
Prohibits the criminalization of mere drug or alcohol addiction.
Acts: public intoxication, or driving under the influence of drug intoxication: they are under ACTS. It may be criminally punished without violating the 8th.
740
