Sample Criminal Law And Criminal Procedure Outline

Criminal Law

Essential Elements of Crime

Actus Reus = Act or Omission

·    Things that are NOT “Acts”:

o   (1) Conduct that is not the product of one’s own volition (i.e. someone pushing you)

o   (2) A reflexive or convulsive act (e.g. an epileptic seizure)

o   (3) An act performed while unconscious or asleep (i.e. sleepwalking, not driving while sleeping)

·    원칙: Generally there is no duty to act/rescue.  Situations where there are Legal Duties to Act arise:

o   (1) by Statute (i.e. to pay taxes)

o   (2) by Contract (e.g. lifeguard, nurse, etc)

o   (3) by Nature of Relationship (parent-child, spouse-spouse, ship captain to crew, employer-ee)

o   (4) Where the person voluntarily accepts a duty of care by acting, but then fails to fully perform the act (i.e. D swims out to save drowning man, realizes he dislikes the man, and decides not to save)

o   (5) Where the person’s conduct created the peril.

Mens Rea = Mental State (** 8-10 MBE questions in this area)

·    Four Mental states:  (1) Specific Intent, (2) Malice, (3) General Intent, (4) Strict Liability

·    Specific Intent.  (“intentionally,” “purposefully,” “willfully”)

o   Specific intent crimes qualify for the additional defenses of (i) voluntary intoxication and (ii) any mistake of fact. 

o   Specific Intent Crimes:

§  Inchoate Crimes of Solicitation, Conspiracy, and Attempt

§  First degree murder [* not general “murder” which is 2^nd degree]

§  Attempted-Battery Assault [* not “Threat” assault]

§  Common law felonies against property:  Larceny, Embezzlement, False Pretenses, Forgery

§  Robbery

§  Burglary

·    Malice.  (“recklessly” “wantonly”) Similar to specific intent, but includes a reckless disregard of an obvious or high risk. 

o   ONLY includes Murder (2^nd degree) and Arson.

·    General Intent.  (“knowingly”)  Catch-all Category.  Most crimes are general intent

o   Includes everything that is not specific intent, malice, or strict liability

o   Arson, Rape, Battery, Indecent Exposure, Involuntary Manslaughter, “Depraved heart” murder

·    Strict Liability. 

o   No-intent crimes.  Any defense that negates intent is not a defense to a strict liability crime

o   Formula for SL = Crime is in the administrative, regulatory or morality area, and there are no adverbs (in the statute) describing the required mental state 

Special Case:  Transferred Intent (on 2/3 of all bar exams)

·    원칙: Intent to perform a crime at one target is transferred to the inadvertent victim. 

·    E.g. If D aims to shoot and kill T, but misses and kills V, then D is still guilty of the murder of V and is also guilty of the attempted murder of T.  Attempt does not merge with the crime here because T and V are different victims

Jurisdiction & Merger

·    Jurisdiction over a criminal matter is at the “legal situs” of the crime (a State)

o   Legal Situs = (i) where the conduct constituting the crime occurred, and/or (ii) where the result of the crime occurred, OR (iii) for crimes of omission, where the act should have been performed

o   Ex:  If D is in NJ an difres a bullet towards NY, killing B in NY, jurisdiction is in both NJ and NY.

·    Merger.  Generally there is no merger of crimes

o   Merger applies only to Solicitation and Attempt.

§  Thus a complete defense to attempt is that you actually completed the crime.

o   Conspiracy does NOT merge with the substantive offense; You can be guilty of conspiring to do something and actually doing it

Accomplice Liability

·    원칙:  Accomplices are liable for the crime itself AND for all other foreseeable crimes.

·    What are Accomplices?

o   Accomplices must actively be aiding, abetting, or counseling in the crime

o   * Mere presence of a person is not enough to give rise to accomplice liability

·    Withdrawal

o   If the accomplice only encouraged the crime, then he may withdraw by repudiation.

o   If the accomplice participated in the crime, he may withdraw only by attempting to neutralize his assistance

NY Distinction

·    An accomplice cannot benefit from the principal’s defenses that go to negate mental state (i.e. insanity)

·    An accomplice is not absolved from liability even if the principal is acquitted, immune, or not prosecuted

·    A person cannot be convicted solely on the basis of uncorroborated accomplice testimony

Defenses of Incapacity

Intoxication

·    Involuntary intoxication is a defense to ALL crimes (including strict liability crimes)

·    Voluntary intoxication is only a defense to crimes of specific intent. 

o   i.e. voluntary intoxication is a defense to first-degree murder, but not “murder.”

Insanity

·    Insanity is a defense to ALL crimes (including Strict Liability crimes)

·    Four standards of criminal insanity:

o   (1) M’Naghten Test:  At the time of the conduct, D does not know right from wrong or does not understand the nature and quality of his actions

o   (2) Irresistible Impulse.  D lacks all self-control and self-choice.

o   (3) Durham Test.  D’s conduct was a product of mental illness.  But-for the mental illness, D would not have engaged in such conduct

o   (4) ALI/MPC Test.  D lacked the capacity to conform his conduct to the requirements of law.

NY Test for Insanity (similar to M’Naghten Test):

·    A person is not criminally responsible for conduct, if, at the time of the conduct, as a result of mental disease or defect, he lacked capacity to know or appreciate either the nature and consequences of such conduct, or that such conduct was wrong. 

Infancy

·    Under 7—NO criminal liability

·    Under 14—Rebuttable presumption of No criminal liability

NY Distinction:

·    Under 7:  NO criminal liability

·    Under 16:  Subject to family court jurisdiction as a juvenile delinquent except:

·    13-15 may be prosecuted for 2^nd degree murder

·    14-15 responsible for serious offenses against persons and property

Additional Defenses

Self-Defense / Defense of a Dwelling

·    (1) Self-Defense.

o   Non-Deadly Force.  A victim may use non-deadly force if he reasonably believes that force is about to be used on him

o   Deadly Force.  Majority Rule:  A victim may use deadly force if he reasonably believes that deadly force is about to be used on him.

§  NY Rule (Minority):  A victim must retreat (if safe to do so) before using deadly force. 

Exceptions: 

(i) no duty to retreat from your own home

(ii) no duty to retreat if the victim is being robbed or raped, and

(iii) duty to retreat does not apply to police officers

o   An Original Aggressor has NO self-defense argument unless he (i) withdraws, and (ii) communicates such withdrawal to the original victim.

·    (2) Defense of a Dwelling.

o   A person may NEVER use deadly force solely to defend his property (i.e. no spring-guns)

Entrapment

·    Entrapment is an affirmative defense to ALL crimes.

·    Narrowly Construed.

·    Elements of Entrapment:

o   (1) D must be induced to commit the crime solely by the acts of the police, and

o   (2) D must have had no predisposition to commit the crime

·    If D had predisposition to commit the offense, then the entrapment defense is unavailable

Consent of Victim

·      Generally, the consent of the victim is NEVER a defense.

Duress

·    Multistate Rule:  Duress is an affirmative defense to all crimes except homicide

o   E.g. Gun to your head, D says, “You will rob the bank or I will kill you”

NY Distinctions

·    Duress is an affirmative defense to all crimes, including homicide

·    Defenses vs. Affirmative Defenses re: BOP

(1) Defenses = Infancy, Self-Defense

If D raises a defense, prosecutor bears the burden of disproving the defense by reas. doubt. 

(2) Affirmative Defenses = Duress, Entrapment, Insanity

D must raise and bear burden of proving affirmative defenses by a preponderance of evid.

Mistake of Fact

Mental State of Crime Charged	Application of Mistake of Fact Defense
Specific Intent Malice & General Intent Strict Liability	Any mistake Reasonable mistakes only Never

·    Thus any mistake of fact is valid to change 1^st degree murder to 2^nd degree murder

Inchoate (“Incomplete”) Offenses

Solicitation

·    Solicitation = asking someone to commit a crime. 

o   Elements:  (i) inciting, advising, commanding, or requesting another to commit a crime, and (ii) with the intent that the person solicited commit the crime (specific intent)

·    Solicitation is a completed crime when the solicitor finishes asking.

·    * If the person agrees to commit crime, then the crime has become only conspiracy, (solicitation merges)

·    Ineffectual Defenses:  Factual impossibility is not a defense

o   No defense that the person solicited is not convicted of the offense

Conspiracy

·    Elements: 

o   (1) Agreement.  Does NOT have to be expressed—can be inferred from conduct.  Various persons can be part of a conspiracy even if they do not know each other.

o   (2) Intent to enter the agreement

o   (3) Intent to achieve the unlawful objectives of the agreement

o   (4) [in a majority of states] An overt act

§  Majority (and NY):  Conspiracy = Agreement + Overt Act

·       Even the smallest act or preparation is sufficient (i.e. showing up)

NY Distinctions:

o   NY requires an Overt Act

o   NY takes the Unilateral Approach—a conspirator may be convicted regardless of whether the other parties intended to pursue and achieve the unlawful objective (i.e. you can conspire with undercover police)

·    Liability of Co-Conspirators:

o   Each co-conspirator is liable for ALL crimes committed by ANY of the co-conspirators, if:

§  (i) the crime was committed in furtherance of the conspiracy, and

§  (ii) the crime was foreseeable.

NY Distinction:

o   If a conspirator merely conspires and does not participate in committing the offense, then that conspirator has NO liability for the acts of co-conspirators. 

·    Defenses to conspiracy

o   Withdrawal. 

§  Three requirements of withdrawal:

·       (1) D must notify all co-conspirators of withdrawal

·       (2) D’s notice must give co-conspirators time to abandon, and

·       (3) D must try to neutralize any of his participatory acts

§  Withdrawal will NOT protect D from conspiracy liability itself

·       Withdrawal WILL protect D from (1) underlying unlawful crime/objective, or (2) co-conspirators’ subsequent crimes in furtherance of the conspiracy

NY Distinction:

§  Withdrawal is an affirmative defense to the charge of conspiracy

§  Effective Withdrawal:  (1) D must voluntarily and completely renounce the conspiracy, and (2) D’s efforts must prevent the commission of the crime

o   Impossibility.  Impossibility is NOT a defense to conspiracy

Attempt

·    Elements of Attempt:

o   (1) An Overt Act. 

§  Overt Act = a substantial step beyond mere preparation in the direction of the commission of the crime. 

§  ** This is a much higher standard than the overt act for conspiracy

o   (2) Intent to commit a crime (specific intent)

o   (3) Failure to commit that crime

·    Defenses: 

o   Legal impossibility is a defense to attempt.

o   Factual impossibility and Abandonment are NOT viable defenses to attempt.

Common Law Crimes

Offenses Against the Person

·    BATTERY.  General Intent (never strict liability).  The unlawful application of force to another person, resulting in either bodily injury or an offensive touching. 

o   Battery = a completed assault

·    ASSAULT.  Two theories of Assault.

o   (1) Attempted Battery Assault.  Specific Intent

o   (2) Threat Assault.  General Intent

§  Threat assault = creation of a reasonable apprehension of imminent bodily harm

·    HOMICIDE.

o   The victim must be human and must be dead.

o   (1) Murder.  Homicide = Murder if you can show one of the following intents:

§  (a) Intent to kill

§  (b) Intent to cause serious bodily harm

§  (c) Intent to create a highly reckless situation (e.g. Russian roulette)

§  (d) Intent to commit a felony (felony murder)

§  [First Degree Murder (majority) is (1) deliberate and premeditated or (2) felony murder.]

NY Statutory Murder

§  NY First Degree Murder (very limited) = Intentional + Special Circumstance

Special Circumstances:

- Intended victim was a police officer, judge, witness or witness’s family member

- Murder for hire

- Intentional felony murder (BRAKES) of non-participant

- Life sentence convict

- Torture murder

- Multiple murders as part of the same criminal transaction

- Serial murder

§  NY Second Degree Murder.  Three Types

(1) Intentional murder (w/o special circumstance)

(2) Highly Reckless murder

(3) Felony murder (BRAKES)

 

o   (2) Felony Murder.

§  Qualifying felony = BRAKES, or any felony which is inherently dangerous

§  Requirements of Felony Murder

·       (a) Underlying felony must be independent and distinct from the homicide

·       (b) Homicide was not foreseeable

·       (c) Homicides committed while fleeing from the scene of the underlying felony DO constitute felony murder

o   Exception:  if D reaches a point of temporary safety (e.g. spends a night at home) and then subsequently commits a homicide)

§  Defenses to Felony Murder

·       (a) Any defense  to the underlying felony is also a defense to felony murder

·       (b) Person who dies is a co-felon, who died at the hands of a resisting victim or police officer. 

o   E.g. Slick & Joe hold up a store.  Owner resists and shoots and kills Joe.  Slick is not liable for felony murder of Joe.  But if the owner shoots but instead kills a customer, Slick and Joe are liable for felony murder.

NY Felony Murder Ø  Qualifying Felonies:  Burglary, Robbery, Arson, Kidnapping, Escape, or Sex crime Ø  ** D may be convicted even if the underlying felony charge is dismissed Ø  Defense to FM (D must prove all four elements) (1)   D did not commit or aid in the commission of the homicidal act (2)   D was not armed (3)   D did not reasonable believe that his co-felons were armed, and (4)   D did not reasonably believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury.

o    (3) Manslaughter.  Two types of manslaughter.

§  Voluntary Manslaughter = Provoked killing. 

·       Elements of Provocation: 

o   (i) Sudden and intense passion,

o   (ii) D lost control

o   (iii) Insufficient time for D to cool off, and

o   (iv) D in fact did not cool off

§  Involuntary Manslaughter. 

·       (A) Death resulting from criminal (gross) negligence (e.g. sleeping while driving)

·       (B) Misdemeanor manslaughter.  Death results while committing a misdemeanor or an “un-enumerated” felony (i.e. a non-felony murder felony)

NY Manslaughter First Degree Manslaughter — Intent to do serious bodily injury or CL voluntary manslaughter Second Degree Manslaughter— Death resulting from recklessness Criminally Negligent Homicide — Ø  Death resulting from a failure to perceive a substantial and unjustifiable risk of death Ø  D’s conduct must be culpable, and death-producing event must be foreseeable Ø  Typical case of negligent homicide is vehicular.

·    FALSE IMPRISONMENT.

o   Elements = (i) unlawful confinement, (ii) without victim’s valid consent, (iii) with general intent

·    KIDNAPPING. (i.e. Abduction)

o   Elements = (i) unlawful confinement, AND (ii) movement of the victim or concealment of victim

NY Kidnapping * Both degrees of kidnapping qualify for felony murder in NY Ø  First Degree Kidnapping — Abduction + Special Circumstance.  n  Special Circumstance: i) holding for ransom; ii) restraint w/ intent to inflict physical injury; or iii) the victim dies Ø  Second Degree Kidnapping — Abductions w/o Special Circumstances

·    RAPE.  Even the slightest penetration completes the crime of rape.

·    STATUTORY RAPE.  This is a strict liability crime. 

o   No defense for mistake of fact (age), voluntary intoxication, or consent

** Property Offenses **

·    LARCENY.   * Larceny relates to possession, not title.

o   Elements: 

§  (i) Wrongful taking, i.e. stealing (by trespass or trick)

§  (ii) carry the item away (any slight carrying away is sufficient)

§  (iii) the personal property of another

§  (iv) without consent of the owner

§  (v) with intend (at the time of taking) to permanently deprive the owner of possession

o   주의: Taking property in the belief that it is yours or that you have rights to it is NOT larceny.

·    EMBEZZLEMENT.

o   Elements:  (1) D has lawful possession, and (2) D effectuates an unlawful conversion

o   Embezzler does not have to benefit herself

o   No “carrying away” is needed

o   * Embezzlement involves possession, not title

·    FALSE PRETENSES (REPRESENTATION).  Elements:

o   (1) D persuades owner to convey title (not mere possession)

o   (2) D uses false pretenses/misrepresentations to persuade the owner

§  Must be past or present facts, not future predictions

·    ROBBERY.  Robbery = Larceny + Assault

o   Larceny + Assault = Forcibly stealing property

o   Must show larceny elements above

o   Assault element—either:

§  (1) D takes property by violence or fear from the person or his presence; OR

§  (2) There is a threat of imminent harm (i.e. “your money or your life”)

o   Threat of future harm is extortion, not robbery

NY Robbery First Degree Robbery = forcibly stealing property + “Armed with a deadly weapon AND causing serious physical injury” Second Degree Robbery = forcibly stealing property + ONE aggravating factor (Aided by another; Causing physical injury; OR Displaying a Firearm) Third Degree Robbery = generally forcibly stealing property

·    EXTORTION.  Blackmail.

o   Two distinctions from Robbery: 

§  No “person/presence” requirement

§  Threatens only future harm, not imminent harm (e.g. “Give me $20M, or I will…”)

Offenses Against the Home/Habitation

·    BURGLARY.  Elements of CL Burglary:

o   (i) Breaking

§  Can be Actual or Constructive “breaking”

·       Actual = involving some force, however slight (e.g. opening an interior door)

·       Constructive = by threats or fraud (i.e. unauthorized use of house keys by maid

§  No “breaking” if D walks through a wide open door or window. 

o   (ii) and Entering (Occurs as soon as any part of the body crosses the plane into the dwelling)

o   (iii) into a Dwelling house of Another (Must be a dwelling, and not a commercial building or barn)

o   (iv) at Nighttime

o   (v) with the intent (at the time of the breaking and entering) to commit a felony inside

NY Burglary Third Degree Burglary. (i) Breaking (ii) entering (or remaining behind inside) of (iii) any structure, (iv) at any time of day, (iv) with the intent at the time of breaking/entering to commit any crime inside. Second Degree Burglary = Third degree burglary + ONE of the following aggravating factors: (1)   Structure is a dwelling (2)   Results in physical injury to a non-participant (3)   Burglar was armed First Degree Burglary = Third degree Burglary + Structure is a Dwelling + ONE of the following aggravating factors: (1)   Results in physical injury to a non-participant, or (2)   Burglar was armed.

·    ARSON

o   Elements:  (i) Malicious (ii) burning (iii) of a dwelling of another

o   Burning = “Material wasting of fiber or structure of the building by fire”

§  Carpet or furniture catching fire is insufficient—must actual damage the building itself

§  Does not apply to smoke damage, water damage, or explosions

o   * Burning your own home is not arson since CL required the house to be “of another”

NY Arson Ø  Covers fires, as well as smoke damage, water damage, and explosions Ø  Applies to any structure or motor vehicle, not just homes Ø  Applies to the arsonist’s own dwelling

 

 

Criminal Procedure

Exclusionary Rule

·    The ER is a remedy based on the U.S. Constitution. 

·    Products of illegal searches/seizures or coerced statements are excluded

·    Limitations to the ER

o   Search/seizure must violate the U.S. constitution or a federal statute in order to qualify for exclusion under ER

o   May use ALL otherwise excluded evidence (illegally obtained) to impeach D’s credibility during testimony at trial

§  Applies only to impeaching D, not to any other defense witnesses

o   ER does not apply to the conduct of grand juries

§  A grand jury may compel witnesses to testify based on illegally obtained evidence

o   ER is not available in civil proceedings or in parole revocation proceedings

·    Good Faith Defenses (Used by Police)

o   (1) Police relied in good faith on a judicial opinion later changed by another judicial opinion

o   (2) Police relied in good faith on a statute or ordinance later declared unconstitutional

o   (3) Police relied in good faith on a defective search warrant

NY Distinction:

§  NY does not recognize the good faith reliance defense on a defective search warrant

·    Harmless Error Test:  Even if illegal evidence is admitted, the conviction will stand so long as the prosecution can show beyond a reasonable doubt that the admission was harmless

Fruit of the Poisonous Tree (FOPT)

·    All evidence which is obtained or derived from exploiting illegal evidence is likewise excluded

·    Exceptions to FOPT (i.e. breaking the chain between original police illegality and the evidence):

o   (1) Independent source of the evidence

o   (2) Inevitable discovery of the evidence (i.e. body lying on side of a well-traveled road)

o   (3) Intervening acts of free will on the part of D: e.g. D is arrested illegally on Friday.  Saturday he gets out on bail.  Monday he comes back to the station voluntarily to give a confession.  Confession may be admitted.

Fourth Amendment Protections

Detentions:  Stops & Arrests

·    Stop & Frisk.  Stop must be made based on reasonable suspicion

o   Frisk must be based on a reasonable suspicion that the detainee is armed and dangerous.

o   Detention may be no longer than necessary to verify suspicion

·    Automobile Stops.  Must be based on reasonable suspicion

o   Exception:  roadblocks for sobriety tests, seat belts, etc.

·    Arrests.  Must be made based on probable cause

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

o   Arrest warrants generally are required for non-emergency arrests at an individual’s own home

·    Station House Detentions.

o   Must have probable cause to detain and bring to the station for either (1) fingerprinting, or (2) interrogation.

NY Arrests—SLIDING SCALE of Police Authority (increasing intrusion) I. Request for Information (1)   Police can approach and request information except on “whim or caprice.”   (2)   Individuals have the right to not respond, and even to run away—those acts do not give police probable cause to arrest. II. CL Right to Inquire (1)   If police have “founded suspicion that criminal activity is afoot,” they can ask questions and briefly detain.  (2)   Police must release following explanations III. Forcible Stop / Detention / Frisk (1)   If police have a reasonable suspicion that the individual has committed or is committing a crime, then police may frisk for weapons IF they reasonably believe the suspect is armed.  (2)   Warrantless seizure of anything reasonably believed to be a weapon is OK. IV. Police Pursuit (1)   Must be based on reasonable suspicion that a crime has been, is being, or is about to be committed V. Arrest (1)   Police must have probable cause to believe the individual has committed a crime.

** Evidentiary Search & Seizure **

·    8 out of 13 MBE questions will be in this area; Important for NY essays too.

Was the Search/Seizure performed by a government agent?	® No ®	Search is not challengable under Fourth Amendment
¯ Yes ¯
Did the search violate D's REOP?	® No ®
¯ Yes ¯
Did government agent have a warrant?	® No ®	Was it a Wiretapping or Eavesdropping Situation?  If so, it requires a warrant Was the search within a warrantless search exception? 1.     Incident to lawful arrest 2.     Automobile search 3.     Plain view 4.     Consent 5.     Stop and frisk 6.     Hot pursuit and evanescent evidence
¯ Yes ¯			® Yes ®	Search is valid under Fourth Amendment
Was the warrant proper (i.e., based on probable cause, precise on its face, and issued by a neutral and detached magistrate) or was the government agent's reliance on the warrant in good faith?	® No ®
¯ Yes ¯
Was the warrant properly executed? 1.     Without unreasonable delay 2.     After announcement (unless officers or evidence would be endangered) 3.     Person or place searched or seized within scope of warrant	® No ®		® No ®	Search is invalid under Fourth Amendment
¯ Yes ¯
Search is valid under 4th Amendment

STEP 1:  Does D have a 4^th Amendment Right?

·    (A) Search/Seizure must be conducted by a Government Agent.  Government Agents include:

o   Publicly paid police (on or off duty)

o   Any private individual acting at the direction of the police

o   Any privately paid security or law enforcement officer who has been deputized with the power to arrest.

·    (B) D must have Standing to challenge the search/seizure

o   Three categories of automatic standing, where D always has standing to challenge: (OLG)

§  (1) D is the Owner of the premises searched

§  (2) D Lives on the premises searched, regardless of ownership

§  (3) D is an overnight Guest of the owner of the premises searched

o   Two categories where standing is sometimes granted: (SL)

§  (1) D is the owner of the property Seized

§  (2) D was Legitimately present when the illegal search took place

o   * Hot Standing topics = NO STANDING: (PD)

§  A Passenger in a car, who does not own car or property seized has no standing

§  A Drug dealer who is briefly on a premises (owned by someone else) solely for the business of cutting drugs for sale has no standing

NY Distinction — Co-defendants traveling in a car are permitted automatic standing to challenge charges of criminal possession of a weapon which arises solely because of the presumption of possession to all passengers when weapons are found in a vehicle

·    (C) D must have a Reasonable Expectation of Privacy (REOP) in the confiscated evidence

o   There is no REOP where the item is of “Public” Nature. 

o   There is no REOP and no right to privacy in:

§  1) Sound of your voice;

§  2) Your handwriting;

§  3) Paint on the outside of your car

§  4) Bank account records;

§  5) Monitoring of your car on public streets or in driveway

§  6) Anything that can be seen across an open field;

§  7) Garbage set out for collection

§  8) Anything that can be seen from open airspace;

§  9) Odors emanating from luggage

STEP 2:  If there was a search warrant—Was the warrant Valid?

·    à Recall:  Police may rely on the validity of a warrant in good faith (exception to exclusionary rule)

·    (A) Probable Cause.  A warrant must be issued upon a showing of probable cause

NY Use of Informants

o   If a warrant is based in part on an informer’s tip, then the affidavit underlying the warrant must show (i) how the informer got his information, and (ii) establish reliability and credibility of the informer.  

·    (B) Precision.  A warrant must be precise on its face, by stating with particularity the place to be searched and the items to be seized

o   * Special rules for wiretapping / eavesdropping warrants (below)

·    (C) Judicial Official.  Warrant must have been issued by a neutral and detached official

o   Neutral = neutral from law enforcement

o   Officials who are not neutral:  State Attorney General, Magistrate judge whose compensation is based solely on number of warrants issued.

o   Court clerks are neutral

STEP 3:  If No warrant or Invalid warrant, Does a Warrant Exception to Search apply?

1. search incident to lawful arrest
2. Automobile exception
3. Plain view
4. consent
5. stop and frisk
6. Hot pursuit and evanescent evidence

·    (1) Search Incident to Lawful Arrest

o   Requirements of a Search Incident to a Lawful Arrest:

§  (i) Arrest must be lawful (i.e. with probable cause)

§  (ii) Search must be contemporaneous in time and place with the arrest, and

§  (iii) Search must be within the wingspan (geographic scope) of the detainee

o   Searches of Automobiles incident to arrest:

§  With any lawful arrest in a car, the police may search the entire interior compartment of the car and everything in it, but NOT the trunk.

§  Above rule applies even if the arrested person is handcuffed

NY Distinction:

-       A search incident to a lawful arrest in general: Police must suspect that the arrested person may be armed in order to search containers within the “wingspan”

-       Search of Automobile Incident to Arrest: Once the occupant has been removed from the car, the police may not remove closed containers or bags to look for weapons or other evidence

·    (2) Automobile Exception

o   If the police have probable cause to believe that a car contains contraband or the fruits of a crime, then the police may search the entire car.  [This is very narrow]

§  * Police may search any container, package, luggage, or trunk that could reasonably contain the sought contraband/fruits of crime. 

§  There need not be any arrest here

o   Timing of probable cause

§  à Probable cause may arise after car is stopped, but must arise before any search

·    (3) Plain View

o   The officer must be

§  1) legitimately present in the premises

§  2) discover items

§  3) see evidence in plain view without any effort

§  4) Have probable cause to believe that the item is evidence, contraband, fruit or instrumentalities of crime.

·    (4) Consent Searches

o   Consent must be voluntary AND intelligent

o   Settled Rules:

§  (i) No valid consent where the police misrepresent that they have a warrant

§  (ii) Police have no duty to warn that you have a right to refuse consent

§  (iii) Where two or more persons have equal right to use the premises or property, then any one of them may consent to the search of the premises or property

·    (5) Stop & Frisk

o   Police must have reasonable suspicion to stop you. 

o   Must have a reasonable suspicion that you are armed in order to frisk you. 

o   Police may seize weapons OR contraband that feel like it from the outside

§  Such items will always be admissible so long as the original stop was reasonable.  

·    (6) Hot Pursuit & Evanescent Evidence

o   Hot Pursuit of a fleeing felon. 

§  Must be within 15 minutes behind the felon (or closer). 

§  Once hot pursuit requirement is satisfied, all other search limitations are negated—there is no wingspan limitation, they may search the entire home and get anything in the home (even something in the basement)

o   Evanescent Evidence

§  Police may take evidence which may not be available if the police took the time to get a valid warrant

§  E.g. blood alcohol tests, scrapings under fingernails

o   Cf., Exigent Circumstances

§  All warrantless search and seizure in a person’s home are unreasonable unless exigent situation exists.

STEP 4:  Wiretapping and Eavesdropping ALWAYS require Warrants

·    Special rules for Wiretapping and Eavesdropping:

o   (1) Warrant requirements

§  Requires probable cause

§  * Must name the persons to be overheard, particular description of target conversations, be of a short time limit, wiretap must terminate once target information is obtained

§  Police must return to court to show the intercepted conversations

o   (2) Unreliable Ear Exception.  Everyone assumes the risk that the other person in a conversation is wired or has consented to government monitoring.

Miranda & Confessions

Miranda Rights

·    Police must issue Miranda warnings to any person subject to police custodial interrogation

·    Elements of Custodial Interrogation:

o   (i) Custody = Not free to Leave.

§  Things that are not custodial:  probation interviews and routine traffic stops

§  If an individual is not in custody, then the police can ask any questions without giving Miranda warnings

o   (ii) Interrogation = Any conduct (not just direct questioning) where police knew or should have known would elicit a damaging statement

§  “Blurts” and other spontaneous statements are admissible without Miranda warnings.

·    à No negative implication may be drawn by the Prosecutor against a D who exercises his right to remain silent upon hearing Miranda Rights.  (Unconstitutional to do so)

·    Waiver of Miranda Rights. 

o   After issuing Miranda rights, police must obtain a waiver from D before continuing interrogation

o   Waiver = voluntary + intelligent + knowing. 

§  Silence and shoulder shrugging are NOT effective waivers

NY Distinction: O If the police know or have reason to know that D is represented by an attorney for the present charge, then waiver may only be obtained from D in the presence of counsel.

Right to Counsel (5^th Amendment)

·    If (after Miranda warnings) D requests the right to counsel, then police may NOT reinitiate interrogation without the attorney present.

·    5^th Amendment right to counsel only relates to custodial interrogation

·    It is NOT offense specific like the 6^th amendment right to counsel. 

5th Amendment Right to Counsel NY Distinctions : *** VERY Commonly Tested *** • NY provides greater protection to the D than does the U.S. Constitution • NY provides an indelible right to counsel.  • This indelible right attaches: (i)             When D is in custody, police are doing things overwhelming the layperson AND D requests counsel (ii)           At arraignment (iii)          Upon the filing of an accusatory instrument (iv)          Where there has been any significant judicial activity, OR (v)           If investigating officials know (or should know) that D is represented by counsel in present charge • A waiver may be obtained from criminal D who is actually and known to be represented by an attorney, only if counsel is present • Investigatory lineups: No right to counsel exists at an investigatory lineup which is held prior to formal prosecutorial action, except (i)              police are aware that D is represented by counsel on another case; and (ii)            D explicitly requests his attorney

Constitutional Rights & Privileges

6^th Amendment Right to Counsel

·    Attaches after formal charges have been filed

·    6^th amendment right is offense specific

o   Attorney must be present when D is being questioned about the specific offense that the attorney represents D for

·    Ineffective Assistance of Counsel (Likely NY essay question)

o   D must show:

§  (1) Counsel’s conduct was unreasonable (deficient performance), and

§  (2) Reasonable probability that counsel’s conduct affected the outcome of the case (actual prejudice in the result of the case)

o   TIP:  D’s argument is likely to fail. 

5^th Amendment Privilege Against Compelled Self-Incrimination

·    Privilege may be asserted by anyone (witness, party, etc) in any case or proceeding.

o   Prosecution cannot draw negative implications as to D’s failure to testify (or to remain silent upon hearing Miranda warnings).  Do not want to chill rights.

·    Protects testimonial evidence.

o   Does not protect against physical evidence (hair, blood, urine)

·    Situations where there is NO Privilege:

o   (1) Grant of Immunity. 

§  A witness may be compelled to answer questions if granted adequate immunity for prosecution. 

§  “Use and Derivative Use” Immunity is sufficient—i.e. the prosecution will not use immunized testimony, or anything derived from it, to prosecute you. 

·       * But, for Use and Derivative Use immunity, prosecution can prosecute you based on evidence obtained before immunity was granted.

§  * Note:  Immunity extends only to offenses to which the question relates, and does not protect against perjury committed during the immunized testimony.

NY Distinction: NY Grants transactional immunity, which is broader than “use” immunity

o   (2) No Possibility of Incrimination.  (e.g. statute of limitations has run)

o   (3) Waiver. 

§  By testifying in the first instance, a criminal D waives his 5^th amendment privilege on all legitimate subjects

§  D must assert his privilege the first time asked under oath—otherwise you have waived the privilege for all subsequent criminal prosecutions

Pre-Trial Procedures

Bail

·    Bail issues are immediately appealable. 

·    Preventative detention is constitutional

Competency to Stand Trial

·    Two standards to measure D’s competency to stand trial:

o   (1) D lacks a rational as well as factual understanding of the charges and proceedings, or

o   (2) D lacks sufficient present ability to consult with his lawyer with a reasonable degree of understanding.

Pre-Trial Identifications

·    Rationale:  Pre-trial identifications are a quick check that witness remembers D from the crime itself

·    Substantive Attacks on Pre-Trial Identification

o   (1) Right to Counsel. 

§  Post-Charge lineups and show-ups (one-on-one IDs) give rise to a right to counsel

§  NO right to counsel if police are showing victim photos of suspects

NY Distinction: -       No right to counsel exists at an investigatory lineup held prior to formal charges, except when (i)              police are aware that D is represented by counsel on another charge, and (ii)            D explicitly requests his attorney -       Police must notify counsel and provide an opportunity for counsel to appear before they proceed with the lineup.

o   (2) Due Process.

§  If the line-up or show-up is too suggestive (substantively likely to produce a misidentification), then D has been denied DP.

·    Remedy for Defective Pre-Trial ID Procedure

o   Remedy = exclusion of both pre-trial and in-court identifications. 

o   * Exception:  If prosecution can show an independent source of identification, then in-court identification is permissible (despite violations of right to counsel or DP)

§  e.g. witness had ample time and opportunity to look at D at the time of the crime

Grand Juries

NY Rules on Grand Juries: • GJ’s consist of 16-23 people (12 must agree to indict) • A witness who has been granted immunity may consult with counsel, but not in the grand jury room; • cf., A witness who has waived immunity may be accompanied by counsel in the grand jury room • GJ indictment must be based on legally sufficient evidence (evidence admissible at a trial) • All witnesses testifying before the GJ receive automatic transactional immunity (cannot be prosecuted for any transaction which he testifies to (unless waived) • If D requests, D may testify before the grand jury, so long as he waives transactional immunity

Prosecutorial Duty to Disclose Exculpatory Information and Notice of Defenses

NY Rule on Prosecutorial Duties to Disclose • NY specifically provides that, upon demand, D may obtain materials from P for inspection and copying • D may obtain the “Rosario Materials”: -       His own or a co-defendant’s statement to the police, including grand jury testimony -       Tapes or bugged conversations intended to be used at trial -       Relevant photos or drawings made by the police; Any other property obtained from D -       Reports of physical, mental or scientific tests or experiments -       Approximate date, time, and place of the offense charged -       Anything that the State or Federal constitution requires to be disclosed to D by P prior to trial -       All specific instances of D’s conduct that prosecutor intends to use at trial to impeach D’s credibility • Prosecutor must give D any prior written or recorded statements of persons to be called at witnesses, as well as known criminal records of prosecution witnesses • Timing of this disclosure:  after jury is sworn in, but before Prosecutor’s opening statement • Failure to produce “Rosario Materials” = reversal of conviction IF D can show that the non-disclosure materially contributed to the result of the trial (i.e. prejudice to the outcome)

NY Rules on Notice of Defense • D must give notice to the Prosecution of alibi and insanity defenses • Insanity:  D must notify prosecutor of insanity defense within 30 days from a “not guilty” plea • Alibi:  Prosecutor must demand D’s alibi within 20 days of arraignment, and D must reply within 8 days • Defendant Disclosure:  Before D’s direct case, D must make available any relevant prior written or recorded statements by defense witnesses.

Trial by Jury & Guilty Pleas

Right to Trial by Jury

·    Which cases get a Right to Jury Trial?  D gets a right to jury trial if D is charged with:

o   (i) An offense where the maximum authorized sentence is greater than 6 months, or

o   (ii) Criminal contempt, where the sum of sentences is greater than 6 months.

o   * If the maximum sentence is less than or equal to 6 months, then no right to jury trial

·    Number of Jurors & Unanimity

o   Minimum 6 jurors.  If 6 are used, they must be unanimous

o   No constitutional right to a unanimous 12-juror verdict (though some states require it)

§  Constitution has accepted 10-2 and 9-3 verdicts

·    Cross-Sectional Requirement

o   D has a right to a jury pool which reflects a fair cross-section of the community, but D’s specific jury does not have to reflect that cross-section

·    Preemptory Challenges. 

o   It is unconstitutional for either the prosecution or defense to exercise preemptory challenges to exclude from the jury prospective jurors on account of race or gender

Guilty Pleas & Plea Bargaining

·    Guilty Plea = Waiver of the 6^th amendment right to jury trial

·    Basic Trends:

o   Supreme Court will not disturb a guilty plea after sentencing (but see below)

o   Supreme Court has adopted a contract theory of plea bargaining

·    Court Acceptance of Plea Bargains

o   Procedural requirements of accepting the plea must be strictly followed, otherwise D is allowed to withdraw his guilty plea.

o   Required Procedure:

§  (1) Judge must address the defendant directly / personally (not to D’s counsel)

§  (2) Remarks must be on the record

§  (3) Judge must inform D of:

·       (i) the nature of the charge

·       (ii) the maximum authorized and the mandatory minimum sentences, and

·       (iii) D’s right to plead not guilty and proceed to trial

·    Withdrawing a Guilty Plea After Sentencing.  Four methods:

o   (1) Involuntariness of the plea.  i.e. attack procedure above

o   (2) Court’s lack of jurisdiction over the case

o   (3) Ineffective assistance of counsel (6^th Amendment—unlikely to prevail)

o   (4) Failure of prosecution to stick with an agreed-upon plea bargain (i.e. breach of contract)

Sentencing & Punishments

Sentencing

·    Sentencing will occur immediately after a guilty plea / verdict

·    Re-Sentencing after a successful appeal

o   Generally, D may not be given a harsher sentence on retrial after a successful appeal

o   Rationale:  do not want to chill D’s right to an appeal

Constitutionality of the Death Penalty

·    Any death penalty statute that does not give D a chance to present mitigating facts and circumstances is unconstitutional

·    There can be no automatic category for imposition of the death penalty

·    The State may not, by statute, limit the mitigating factors—all mitigating evidence must be admissible, or the statute is unconstitutional

·    Only a jury, and not a judge, may determine the aggravating factors justifying imposition of the death penalty

NY Distinction:  NY court of appeals has declared the death penalty unconstitutional; NY Legislature has not acted to change that holding. 

Double Jeopardy (5^th Amendment)

·    A person may not be retried for the same offense by the same sovereign once Jeopardy has attached.

o   (1) When Jeopardy attaches:

§  No jeopardy attaches in civil proceedings (i.e. can be prosecuted for the crime of tax fraud and be tried in a civil case to get the money back.

§  (i) Jury Trial:  Jeopardy attaches when the jury is sworn in.

§  (ii) Bench Trial: Jeopardy attaches when the first witness is sworn in.

o   (2) Same Offenses.

§  Two crimes are not the same offense if each crime requires proof of an additional element that the other does not.

NY Distinction: All criminal acts arising from a single criminal transaction must be tried together

o   (3) Separate Sovereigns

§  States and the Federal government, as different sovereigns, may both try the same defendant for the same crime or transaction.

§  Cf., State and its localities are not different sovereigns

·    Exceptions to DJ rule—Situations permitting retrial:

o   (1) Hung juries

o   (2) Mistrials for manifest necessity (e.g. D gets hospitalized/sick)

o   (3) Re-trial after a successful appeal (i.e. a remand back to trial court)

o   (4) Breach by the Defendant, of an agreed-upon plea agreement (plea and sentencing can be withdrawn an original charges reinstated)

[이상의 outline은 본인이 작성한 것이 아님을 알려드립니다. 하지만, New York Bar Exam을 준비하는데 도움이 되리라 생각합니다.]