Criminal Law Essay Writing Outline General Principles o Actus – Voluntary/Involuntary o Mens o Concurrence o Causation Accomplice Liability Inchoate Offenses o Solicitation o Conspiracy o Attempt o Merger Crimes Against Person o CL Murder (intent to kill, gross bodily harm, reckless/depraved) o 1st Degree Murder (premeditated, FMR) o 2nd Degree Murder (everything not 1degree) o Voluntary Manslaughter (adequate provocation) o Involuntary Manslaughter (criminal negligence, misdemeanor manslaughter) o Battery o Assault o Robbery o False Imprisonment o Kidnapping Crimes Against Personal Property – LEFT REFS o Larceny o Embezzlement o False Pretenses o Trick-Larceny o Robbery o Extortion o Forgery o Stolen Property (receipt) Crimes Against Real Property o Burglary o Arson Crimes Against Public o Misprision Defenses (3D 3I MEND) o Defense of Self o Defense of Others o Defense of Property o Insanity McNaughton Irresistible Impulse MPC o Intoxication o Infancy o Mistake (un/reasonable) o Entrapment o Necessity o Duress General Principles 1 Under Common Law, there must be concurrence of a physical act (actus reus) and intent necessary for the crime (mens rea). For certain crimes the court will look to whether the Δ’s conduct was the actual and proximate cause of the crime committed. Actus Reus – Physical Act Δ must have either performed a voluntary physical act or failed to act under circumstances imposing a legal duty to act. An act is a voluntary bodily movement. Omission as an Act Failure to act gives rise to liability ONLY if: 1) Δ had a specific legal duty to act (relationship, contractual, voluntary, etc.), 2) it was reasonably possible for Δ to perform the duty. Here,... Mens Rea – Mental State Mens rea is the mental element required at the time a crime was committed. Under CL, the types of intent are Specific intent, General intent, Malice, and Strict Liability. Under the MPC, the intent is either Purposely, Knowingly, or Negligently. Intent can be transferred from a target victim to an actual victim. Common Law Specific Intent (Students Can Always Fake A Laugh Even For Ridiculous Bar Facts) Δ must have a intend to commit the given crime. These crimes include Solicitation, Conspiracy, Attempt, First degree murder, Assault, Larceny, Embezzlement, False pretenses, Robbery, Burglary, and Forgery. Reasonable and unreasonable mistake of fact and voluntary intoxication are available defenses. Here,… Malice Δ acts with Malice when he acts with reckless disregard of a reasonably known risk. Common Law Murder and Arson are the only two Malice Crimes. Here,… General Intent Δ must be aware he is acting in a certain manner. This includes the crimes of battery, rape, false imprisonment, and kidnapping. Reasonable mistake of fact is a defense to all general intent crimes. Here,… Strict Liability For SL crimes, no mens rea is required, i.e. no intent or awareness is required for SL crimes. This includes statutory rape, selling alcohol to minors, etc. The only possible defenses are insanity, involuntary intoxication, and duress. Here,… Model Penal Code Purposely A person acts purposely when his conscious object is to engage in certain conduct or cause a certain result. Here,… Knowingly A person acts knowingly when he is aware that his conduct is of a particular nature or knows his conduct will very likely cause a particular result. Here,… Recklessly A person acts recklessly when he knows of a substantial and unjustifiable risk and consciously disregards it. Here,… Negligently A person acts negligently when he fails to be aware of a substantial and unjustifiable risk. Here,… Transferred Intent Δ can be liable under the transferred intent doctrine if he intends the harm that is actual caused, but the harm is caused to a different victim. Here,… Concurrence The Δ must have the intent necessary for the crime at the time he committed the act constituting the crime, and the intent must have actuated the act. Here,… 2 Causation Some crimes, like homicide, require result and causation. Δ’s conduct must be both the actual and proximate cause of the crime committed. Here,… Actual Cause But for Δ’s conduct, the crime would not have occurred. Here,.. Proximate Cause The crime is the natural and probable consequence of Δ’s conduct. Here,… Accomplice Liability (Always raise with Co-Conspirator Liability) An Accomplice is anyone who actively aids, encourages, or counsels the principal in committing the crime with the intent to encourage the commission. Mere presence at the crime is NOT enough. Here,… Liability As an accomplice, Δ is liable for the original crime as well as ALL probable or foreseeable crimes committed by the principles during the commission of the original crime. Here,… Defenses Withdrawal Defense Δ can effectively withdraw before the crime is committed or becomes unstoppable. To withdraw, Δ must negate or repudiate his initial aid or encouragement. Here,… Member of a Protected Class Those protected by a criminal statute are NOT liable as accomplices. Here,… (minors in a statutory rape case) Accessory After The Fact An Accessory After The Fact is one with the intent to help a felon escape or avoid arrest or trial, receives, relieves, or assists a known felon after the felony has been completed. He will be liable for “obstruction justice” and will not be liable for the crimes committed by the principal. Here,… Inchoate Offenses Solicitation Solicitation is the inciting, urging, or otherwise asking another to commit a crime with the intent that they commit the crime. If the party solicited actually commits the crime, the solicitor will also be liable for the crime. Further, if the party solicited refuses, it is not a defense. Here,… Conspiracy (Always raise with accomplice liability) A conspiracy is an agreement between two or more people with the intent to commit a crime. Under the majority rule, some slight overt act in furtherance of the conspiracy is required. Here,… Each conspirator is liable for the crimes of the other co-conspirators that are 1) committed in furtherance of the conspiracy and 2) foreseeable. Here,… Defense – Withdrawal In order for the Δ to present a withdrawal defense, he must communicate his intent to withdraw to all other conspirators before the target crime occurs. However, he may not withdraw from liability for the conspiracy itself. Here,… Acquittal of Co-conspirators If ALL alleged co-conspirators have been acquitted, no party can be convicted of conspiracy. However, a person can be convicted of conspiracy even if his co-conspirators have not been found or charged. Modernly, only one person must have a genuine criminal intent to be guilty of conspiracy. Here,… Attempt An attempt is when one has the specific intent to commit a target crime and takes a substantial step in the direction of the commission of that crime (mere preparation is not enough). Under the majority rule, abandonment is not a valid defense after the substantial step is taken. Here,… 3 Impossibility A factual impossibility is not a defense to attempt, however a legal impossibility is a valid defense to attempt if the acts that Δ intends to commit are not a crime. Here,… Merger When merger applies, the inchoate offense merges into the target offense, prohibiting Δ from being prosecuted for both crimes. However, conspiracy does not merger into the target crime and crimes towards different victims never merge. Here,… Crimes Against Person Homicide Homicide is defined as the killing of another human being by the Δ. Here,… Common Law Murder At common law, murder is the killing of another human with malice. Malice can be shown by an intent to kill, intent to commit serious bodily injury, reckless indifference/depraved heart, or via the felony murder rule. Intent to Kill Here,… Intent to commit serious bodily injury Here,… Reckless indifference/ Depraved Heart A Δ can be convicted of CL murder if he acted with reckless indifference to an unjustifiably high risk to human life. Here,… Felony murder rule A Δ can be convicted of CL murder if 1) he intended to commit the underlying felony, and 2) the killing occurred during the commission of an inherently dangerous felony such as Burglary, Arson, Rape, Robbery, and Kidnapping (BARRK). The Felony must be independent from the act that causes the death. Here,… Defense A defense to the underlying felony is a defense to the FMR. Here, … Causation Δ’s act must be both the actual cause and the proximate cause of the victim’s death. First Degree Murder FDM is statutory murder committed with premeditation and deliberation. FDM requires a specific intent to kill. Additionally, modern FDM statutes include the Felony Murder Rule and the killing of an on-duty police officer. Here,…. Premeditation And Deliberation If the Δ made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even if only for a moment, it is first degree murder. Here, … Felony Murder Rule See above Second Degree Murder SDM is statutory murder that is not otherwise first-degree murder. Here,… Voluntary Manslaughter VM is a killing that would be murder but for the existence of adequate provocation with no cooling off period. Provocation is adequate if there is a sudden and intense passion in the mind of an ordinary person that would cause a reasonable person to lose control, and there was no time for the Δ to cool down. Here,… Imperfect Claim of Self-Defense If a Δ kills because of an honest, but unreasonable belief his life is in danger, this defense will reduce a murder to manslaughter. 4 Involuntary Manslaughter Involuntary manslaughter is a homicide with criminal negligence or during the commission of a misdemeanor or non-enumerated felony. Here,… Assault An assault is an attempted battery or the intentional creation, by more than mere words, of a reasonable apprehension of imminent bodily harm. Here,… Battery Battery is the unlawful application of force to another person causing bodily injury or offensive conduct. False Imprisonment The unlawful confinement of a person without valid consent. Here,… Kidnapping The confinement of another person involving either movement or concealment in a secret place. Here,… Rape Rape is the unlawful carnal knowledge of a woman by a man, not her husband, without her consent. Slightest penetration counts. A reasonable mistake is a defense to rape, but no defense to statutory rape which is a strict liability crime. Here,… Crimes Against Property & Public (LEFT REFS) All theft crimes are specific intent crimes, so even unreasonable mistake of fact is a defense. Larceny Larceny is trespassory taking and carrying away of the personal property of another with the intent to permanently deprive at the time of the taking. A taking is trespassory if it is without consent or consent was given through fraud. Even the slightest movement is sufficient. Here,… Embezzlement Embezzlement is the fraudulent conversion of personal property of another by a person in lawful possession of that property. Here,… False Pretenses False pretenses occur when one obtains title to the personal property of another by an intentional false statement of past or existing fact, with the intent to defraud the other. A false promise to do something in the future is NOT grounds for false pretense. Here,… Trick - Larceny by Larceny by trick is when one obtains possession of another’s personal property using false statements of past or existing fact. If Δ obtains title, the crime is False Pretenses. Here,… Robbery Robbery is the taking of personal property of from a person or in their presence by the use of force or threat of imminent harm, with the intent to permanently deprive. The victim must be aware of the taking during the act. Here,… Robbery = Assault or Battery + Larceny Extortion Extortion is the obtaining of property though threats of future harm or exposing information. Extortion does NOT require a taking in the victim’s presence and it relates to future threats, not just bodily harm (differs from robbery). Here,… Forgery Forgery is the making or altering of a writing, with purported legal significance, to be false, with the intent to defraud. Here,… Stolen Property (receipt of) 5 One is guilty of receiving stolen property if he receives possession and control of stolen personal property, known to have been illegally obtained, with the intent to permanently deprive the owner of his interest in it. Against Real Property Arson Arson is the malicious burning of the dwelling of another. Majority rule requires charring, not just smoke or scorching damage. Modern law includes any structure. Here,… Burglary Burglary is the breaking and entering of a dwelling of another at night with the intent to commit a felony therein. Modern law defines burglary as the entry of a structure of another with the intent to commit a felony or theft therein. Here,… Against the Public Misprision, Compounding a Felony … Bigamy … Defenses Self-Defense Self-defense may be used in response to imminent threats of unlawful force. Non-Deadly Force Non-deadly force may be used if Δ reasonably believes it necessary to protect himself from imminent unlawful force. Here,… Deadly Force Δ may use deadly force to protect against an attack that threatens imminent death or great bodily harm. Here,… Retreat Under the Majority rule, a Δ need not retreat before using deadly force, UNLESS the Δ is the initial aggressor and safe retreat is available. In a minority of jurisdictions, the victim is required to retreat unless they are in their home, or victims of rape or robbery. Initial Aggressor A Δ cannot assert self-defense as a justification unless: 1) the Δ withdraws, 2) victim escalates a minor dispute into a deadly altercation, and 3) safe retreat is unavailable. Imperfect Self Defense Some states recognize an imperfect self-defense doctrine where a murder may be reduced to manslaughter even though the Δ was at fault in starting the altercation if he unreasonably but honestly believed in the necessity of responding with deadly force. Here,… Defense of Others Under the majority view, one may use force in defense of any other person if he reasonably believed that the person assisted had the legal right to use force in his own defense. The minority view requires the defendant to “step into the shoes of the person she defends” and has no defense if that person has no legal right to use force in self-defense. Here,… Crime Prevention A police officer or private citizen may use deadly force if reasonably necessary to prevent the commission of a dangerous felony or to apprehend a dangerous felon. Here,… A citizen is privileged to use reasonable force to prevent a felon and may use deadly force to prevent a “dangerous felony” involving risk of human life. Here,… Defense of Property Deadly force may never be used to defend property. But if Δ is on the property/home then deadly force can be used in selfdefense (not defense of property). Here,… 6 Recovery of Property Force may NOT be used to regain possession of property wrongfully taken, UNLESS one is in immediate pursuit of the wrongful taker. Here… Insanity Depending on the jurisdiction, one of the four tests is used to determine whether Δ was so mentally ill at the time he committed an offense that he should be entitled to acquittal. Insanity is a defense to ALL crimes. M’Naghten Δ, as a result of mental defect, did not know the wrongfulness of his act OR could not understand the nature and quality of his acts. I.e. D doesn’t know right from wrong. Here,… Irresistible Impulse Δ, as a result of mental defect, was unable to control his conduct or conform his conduct to the law. I.e. D acted because of an impulse he could not resist. Here, … MPC - Substantial Capacity Δ lacked the substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. I.e. D was unable to control his actions or conform his conduct to the law. Here,… Durham Product Δ is not guilty of a crime if it was the product of a mental disease or defect. I.e. but for the mental illness, Δ would not have acted. Here,… Diminished Capacity Diminished capacity is based on Δ’s mental defect and is available if Δ can show that he has some mental defect short of insanity that prevented him from forming the mental state required for the crime. This defense is usually limited to Specific Intent crimes. Intoxication Intoxication may excuse criminal liability. Voluntary Δ is voluntarily intoxicated if he voluntarily consumes an intoxicating substance. Voluntary intoxication is ONLY a defense to specific intent crimes and is NOT available if Δ becomes intoxicated in order to commit the crime. Here,… Involuntary Δ is involuntary intoxicated if he involuntarily or unknowingly consumes an intoxicating substance. Involuntary intoxication is a defense to ALL crimes if the intoxication renders the Δ “insane” Here,… Infancy Children under the age of 7 cannot be held criminally liable for crimes. For children under the age of 14, the law creates a rebuttable presumption of no criminal liability. However, all children over the age of 14 are treated as adults and are subject to criminal liability. Here,… Impossibility A factual impossibility is not a defense to attempt. Here,… Mistake of Fact If a Δ makes a reasonable mistake of fact that negates the required mental state for the crime, Δ is NOT guilty of that crime (but not defense to strict liability). However, if Δ is unreasonably mistaken of fact, then the mistake is a defense ONLY to a specific intent crime. Here,… Legal Impossibility A legal impossibility is a valid defense to attempt if the acts that Δ intends to commit are not a crime. Here,… Mistake of Law A mistake or ignorance of the law, even if reasonable or on the advice of an attorney, is usually not a defense to any crime. Here,… 7 Entrapment In order to claim a defense of entrapment, Δ must show the criminal plan originated with the Government Actor and Δ was not predisposed to commit the crime prior to the contact with the Government. This is a difficult burden to meet. Here,… Necessity Necessity is available as a defense if the commission of a crime is reasonably necessary to avoid an imminent and greater injury to society from a natural force. However, necessity is not available if the crime committed results in the death of another of Δ originally caused the circumstances giving rise to the necessity. Here,… Duress Duress is available as a defense to a crime that Δ committed under reasonable belief that the crime was necessary to prevent death or serious bodily injury to Δ or a member of Δ’s family, however duress is NOT a defense to homicide crimes. Here, … Consent Consent must be given freely by a party capable of consenting, however, consent of the victim is almost NEVER a defense unless the crime is a minor assault or battery, or requires non-consent as an element (rape). Here,… 8 Criminal Procedure Essay Writing Outline 4th Amendment o Detention (Terry) o Arrest o Search & Seizure G-REP o Warrant Requirements Neutral-3Ps o Warrant Exceptions (ESCAPIST) Exigent Circumstances Search Incident to Arrest Consent Automobiles Plain View Inventory Search Special Needs Terry Stop 5th Amendment o Custody o Interrogation th o 14 Amendment – Voluntary o Miranda Exceptions o Double Jeopardy 6th Amendment o Right to Attorney o Confrontation o Speedy Jury Trial Exclusionary Rule 8th Amendment o Death Penalty th 14 Amendment o Burdens of Proof o Suggestive ID 9 4th Amendment Investigatory Detentions (Terry Stop) A person is legally detained if a reasonable person would not feel free to leave. Police may detain a person based on reasonable suspicion supported by articulable facts of criminal activity. This is more than a mere hunch but less than probable cause based on the totality of the circumstances. Here… Duration and Scope A detention should last no longer than required to confirm or dispel the reasonable suspicion. If the detention is unreasonably long, or if the person is transported to station, then the detention becomes an arrest requiring probable cause. Here… Frisk After a reasonable detention based on an articulable suspicion the person is armed and dangerous, police may conduct a protective frisk for the limited purpose of discovering weapons. This is limited to a pat down of outer clothing with no manipulation, followed by reaching into pockets if pat down reveals weapons. Here… Arrest An arrest is a seizure of the person, and it must be supported by probable cause. Probable cause exists if a reasonable person would believe there is a fair probability the person committed a crime. The charged offense does NOT need to match the probable cause for the arrest. An unlawful arrest is not a defense to the charged offense, but incriminating evidence may be excluded. Here… Home Arrest Generally, no arrest warrant is required to arrest a person outside his home on suspicion of a felony, or if a misdemeanor occurred in the officer’s presence. However, arresting a person in his home requires a warrant unless an exception applies. Officers must knock and announce unless exigency or futile. Arresting a person in the home of a third party requires a search warrant for that home. Here… Search & Seizure 4th Amendment protects citizens against unreasonable searches and seizures. The 4A is applicable to the states via the Due Process Clause of the 14th A. A person has standing under the 4A if there is Government conduct and the Δ had a Reasonable Expectation of Privacy (REP). Here… Government Conduct Δ must show that the police/gov’t, or someone acting at the behest of gov’t, were involved in the search and seizure. Here… Reasonable Expectation of Privacy (REP) Δ must show he had an ownership or a possessory interest in the place searched or items seized, i.e. Δ own privacy must be invaded, not the rights of a third party. There is a strong REP in a person’s home, moderate REP as houseguest, and no REP as commercial user or as an auto passenger. However, things held out to the public carry no protections, i.e. voice/handwriting, open fields, airspace, bank records, garbage, odors, and automobiles. Electronic Surveillance Wiretapping or eavesdropping is a “search” under the 4thA and requires a warrant. However, all speakers assume the risk that a person to whom they are speaking is wired. Here… Warrant Requirement Searches require a warrant unless a warrant exception applies. MP3 - A valid warrant must be 1) issued by a neutral and detached magistrate 2) based on Probable cause stated with 3) Particularity and 4) be Properly executed. An invalid warrant may be saved by the Good Faith exception. Here… Probable Cause Probable cause for a warrant exists if a reasonable person would believe there is a fair probability that contraband or evidence of a crime will be found in the area searched. Here… 10 Informant Tips If probable cause is based on an informant’s tip, the judge must look at the totality of the circumstances, including the credibility and basis of knowledge of the informant. Anonymous tips are insufficient unless supported by an indicium of reliability. Here… Particularity The warrant must state the area to be searched and the items to be seized. Here… Execution Execution of the warrant must comply with the warrant particularities, avoid undue delay, and comply with knock and announce. A search warrant carries an implied authority to detain people in immediate vicinity of the search, but those people cannot be searched unless incident to arrest. Here… Good Faith Exception Evidence obtained with a defective warrant will NOT be excluded if the police demonstrate good faith reliance. If warrant is egregiously lacking probable cause, particularity, or shows clear bias then the good faith burden will not be met. Here… Warrant Exceptions (ESCAPIST) If the Government Actor does not have a warrant, then all the evidence will be deemed inadmissible unless an exception to the warrant applies and G can show probable cause. Here, the G did NOT use a warrant when they… Exigent Circumstances An exception to the warrant requirement applies when police are acting in an emergency, in hot pursuit, or if evidence is evanescent (fleeting) in nature. Emergencies Police may enter premises or seize evidence without a warrant to address emergencies that could affect health and safety. Here… Hot Pursuit Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the subject into a private dwelling. Must be within a reasonable time frame, i.e. 15 minutes after felon entered house? Here… Evanescent Evidence Police may seize without a warrant evidence likely to disappear before a warrant can be obtained. Here… Search Incident to Lawful Arrest Upon a lawful arrest based upon probable cause, the police may contemporaneously search a person (protective sweep) and the area in his immediate control (wingspan). This is allowed for officer safety and for the need to preserve evidence. Phones/computers are generally protected from searches without a warrant. Here… Automobile Arrest Search If an arrestee is 1) unsecured, OR 2) police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle, then police may search only the interior of the car. Here… Consent A warrantless search is valid if the police have voluntary and intelligent consent. Police are not required to inform people of their right to deny consent. A person with apparent authority to grant consent (e.g. roommate) may consent and evidence may be used against others. The person granting consent has the right to define the scope of consent. Here… Automobile Exception Due to mobility, autos have a reduced expectation of privacy and police can search the entire vehicle, without a warrant, if police have probable cause to believe the vehicle contains evidence of a crime. The search must be limited to the extent of the PC basis, e.g. can’t search glove box looking for rifle. Here… 11 Plainview Police may seize, but not search, evidence 1) I plain view 2) while the police are lawfully positioned, and 3) it is immediately apparent the item is contraband without manipulation. Courts have extended this doctrine to include places seen by visual aids such as binoculars, but not high-tech instruments unavailable to the general public. Here… Inventory/Impound After a valid arrest, police can search an arrestee’s personal belongings (inventory) and entire vehicle (impound) to discover evidence and protect owner against police misconduct. Here… Special Needs/Admin No warrant is required for searches of certain industries, public schools, and government officials. Administrative Search Highly regulated businesses such as restaurants, airlines, gun stores, casinos, dangerous industries, certain employee drug tests, etc.. can be searched without a warrant due to the public’s interest in safety and close monitoring. Public Schools Searches by public school officials required only reasonable grounds for the search, meaning a moderate chance of finding evidence of wrongdoing and the search is not excessively intrusive. Drug testing is allowed for any extracurricular activities. Terry Stop & Frisk Police may detain a person based on reasonable suspicion supported by articulable facts of criminal activity. This more than a mere hunch but less than probable cause based on the totality of the circumstances. Here… Duration & Scope A detention should last no more than required to confirm or dispel the reasonable suspicion. If the detention is unreasonably long, or if the person is transported to station, then the detention becomes an arrest requiring probable cause. Here… Frisk After a reasonable detention based on an articulable suspicion the person is armed and dangerous, police may conduct a protective frisk for the limited purpose of discovering weapons. This limited to a pat down of outer clothing with no manipulation, followed by reaching into pockets if pat down reveals weapons. Here… Automobiles If the auto is properly stopped for a traffic violation the officer may conduct a limited search of the auto’s interior for weapons if there is a reasonable suspicion the occupants are armed and dangerous. Here… Police Checkpoints Police are allowed to set up roadblocks to stop cars without individual suspicion so long as the police stop cars in neutral manner, and it is designed to serve a legitimate purpose. Here… 5th Amendment Miranda Under Miranda, a Δ must be advised of his constitutional rights to silence and to counsel prior to any custodial interrogation. If a Δ invokes her rights, the police must cease all questions immediately. A Δ can expressively waive her Miranda rights, or by implication if she begins answering questions after receiving the Miranda warning. Here… Custody Under the “freedom of movement” test, legal custody exists if a reasonable person under the circumstances would not feel free to leave. Courts will then look to whether the setting, duration, or manner of police questioning created a coercive police environment. Traffic stops and a jail cell are NOT usually custodial. Here… 12 Interrogation Interrogation is not just express questioning, but also any words or conduct that is likely to elicit an incriminating response. However, spontaneous statements by a Δ are admissible even without a Miranda warning. Here… Right to Silence Δ must unambiguously assert the right to silence prior to or during interrogation. Failure to respond does not invoke the right. Once asserted, all questioning related to that particular crime must stop. 5th Amendment Right to an Attorney Δ must unambiguously assert the right to counsel prior to or during interrogation. Once asserted, all questions related to ANY CRIME must stop and cannot resume for 14 days unless an attorney is provided OR the Δ initiates further questioning. Here… 14th Amendment – Involuntary? (Always raise the 14th Amend if you raise a 5th Amend confessions issue) Involuntary confessions are not admissible, even for impeachment purposes. A statement will be involuntary if it is the result of coercion by the police based on the totality of the circumstances, including the setting, duration, and manner of the interrogation and the Δ’s age, intelligence, and mental/physical condition. Here… Miranda Exceptions Generally, evidence obtained in violation of Miranda rights it inadmissible. However, exceptions apply in the following situations: Spontaneous Statement If the Δ spontaneously makes an admission prior to Miranda warnings this will be admissible. Public Safety Police interrogation reasonably prompted by a concern for public safety is allowed and responses may be used in court. Here… Physical Evidence If a Miranda violation occurs, but the detainee gives non-testimonial evidence, (e.g. the location of a gun), then this evidence is admissible if the Miranda warning violation was not purposeful. Impeachment Miranda violation evidence that is inadmissible against the Δ can be used for impeachment purposes. Double Jeopardy (Only Criminal Trials) Under the 5th Amendment, a Δ cannot be retried for the same criminal offense once jeopardy has attached (jury sworn). However, hung juries and mistrials, and appeals do not count for jeopardy purposes. Double Jeopardy only applies to trials in the same sovereign, so a criminal can be tried in both state and federal court. Here… 6th Amendment – Right to Counsel, Confrontation, Speedy Trial, Jury Trial Right to an Attorney After formal charges are filed, Δ has a right to an attorney present at all critical stages of criminal prosecutions. Non-critical stages include blood, handwriting, and voice samples, photo lineups, brief recess in trial, parole proceedings and post-conviction proceedings. However, the 6thA right to an attorney is offense specific, so police may ask Δ about any other crimes without attorney presences. Unlike 5thA attorney protection, the 6thA rights apply regardless of whether the Δ is talking to police or informants (government actors?). Here… Waiver of this right must be made knowingly and voluntarily but does not require attorney presence. Ineffective Assistance of Counsel An ineffective assistance of counsel claimant must show deficient performance by counsel and that “but for” such deficiency, the result of the proceeding would have been different. Here… Confrontation Clause 13 The 6thA gives Δ the right to confront an adverse witness and have that witness testify in person and subject to cross examination. However, this is NOT an absolute right, in person testimony is not required if: 1) exclusion is necessary for public policy, or 2) the reliability of the testimony is otherwise assured. Here… Right to a Speedy Jury Trial The right to a jury trial is ONLY for serious offenses that could result in jail time over 6 months. The minimum number of jurors is 6. The 6thA guarantees the Δ the right to a speedy trial. To determine if this right has been violated, the court will look at the following factors: 1) length of delay, 2) reason for delay, 3) whether Δ has asserted his right to a speedy trial, 4) whether the delay has prejudiced Δ. Here… Exclusionary Rule Evidence obtained in violation of the 4thA, 5thA, or 6thA rights is admissible at trial (admissible for Grand Jury). Furthermore, all subsequent evidence obtained or derived from excluded evidence is considered tainted as “fruits of the poisonous tree” and also inadmissible. However, fruits derived from a violation of Miranda are not excluded. In applying the exclusionary rule, the courts must balance the purpose of deterring police misconduct with the social cost of excluding relevant evidence. Therefore, exclusion of tainted evidence, including fruit of the poisonous tree, is not automatic. Here… Non-Criminal Case Exception The Exclusionary Rule does not apply to civil cases, grand jury, or parole proceedings. Excluded evidence can be used for impeachment purposes in a criminal case. Inevitable Discovery Evidence is admissible if the police would have found the evidence regardless of an illegal search. Here… Independent Source Evidence is admissible if prosecution can show that it was obtained from a source truly independent of the original illegality (i.e. tainted evidence). Here… Intervening Act of Free Will Evidence is admissible if the Δ breaks the causal chain between the evidence and the original illegality through an intervening act of free will. Here… Harmless Error If illegal evidence is submitted, a conviction will not necessarily be overturned on appeal if the court can show the error was harmless and the conviction would have occurred despite the illegal evidence. 8th Amendment Cruel & Unusual Punishment Under the 8thA, all punishments must be proportionate to the offense, or it is classified as cruel and unusual. Here… Death Penalty Death Penalties are not per se “cruel & unusual” however, the jury must be allowed to consider mitigating evidence as well as the impact on the victim’s family and a statute cannot automatically impose the death penalty. Here… The Death penalty cannot be imposed if: 1) Δ was under 18, 2) Δ was mentally disabled, 3) Δ was insane, or 4) the conviction was for felony murder and Δ was not a major participant or did not act with depraved indifference to human life. Bail Bail generally cannot be higher than what is necessary to assure the Δ’s appearance at trial. Here… Δ 14th Amendment The 14thA requires that the government prove guilty beyond a reasonable doubt in ALL criminal cases. This burden is ALWAYS on the prosecution and cannot be shifted to the Δ to prove that he is not guilty. Here… Plea Bargain The judge must determine that the plea is voluntary and intelligently made, in that he must ensure that Δ understands: 1) the nature of the charge, 2) the maximum penalty, 3) that Δ has the right to plead not guilty, and 4) that Δ is waiving his right to a jury trial. 14 Suggestive Identifications Courts will weigh the reliability of an identification against its potential corrupting effect. An unconstitutional identification excludes an in-court identification unless there is an independent source. 15
