Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
84 Cards in this Set
- Front
- Back
Larceny
|
1. taking (exercise control of)
2. asportation (some movement) 3. corporal personal property of another 4. from the possession of another 5. wrongfully - either: a. without permission or b. with permission obtained by deception (larceny by trick) 6. with intent to permanently deprive |
|
"Coincidence" between Act and Intent and the Larceny Exception
|
General rule: when a crime requires both a particular act and an intent, the D must have required intent when he does the act constituting the crime
Larceny exception: "continuing trespass" rule - D wrongfully takes an item (but without the intent to permanently deprive) and during that wrongful possession formed the intent to permanently deprive |
|
Embezzlement
|
1. possession of property under trust agreement
2. conversion of that property (use it contrary to the terms of the trust arrangement) and 3. with intent to defraud -intent to return or replace converted property does not show the lack of the intent to defraud required for embezzlement |
|
Custody/Possession and Larceny/Embezzlement
|
1. person who has "possession" of the property of another can commit embezzlement but not larceny of that property
2. person who has only "custody" of the property of another does not have possession and can commit larceny of that property 3. "possession" requires extensive and discretionary control -usually, an employee has only custody of employer's property and thus commits larceny by taking it |
|
False Pretenses
|
1. obtaining title to property from another
2. by means of a misrepresentation of a. present fact or b. past fact 3. with intent to defraud Not sufficient misrepresentations 1. unkept promise 2. misrepresentation of future fact |
|
Receiving Stolen Property
|
1. receiving (taking possession)
2. of property acquired by larceny (or some other property crime) 3. knowing that the property is stolen 4. with intent to permanently deprive |
|
Theft (modern statutory crime)
|
person commits theft if he unlawfully exercises control over the property of another without effective permission and with the intent to deprive the other of that property
|
|
Robbery
|
Larceny in which property is taken either by
a. force (violence) or b. threats (intimidation) |
|
Robbery by Force
|
Force must be used to obtain property or prevent victim from immediately regaining it
No force if: 1. D lifts items from V's pocket or 2. D slips item from V's hand without resistance |
|
Robbery by Threats
|
1. threats must be of immediate physical harm
2. victim must be put in fear of harm 3. threat must be such as would cause apprehension of immediate harm in a reasonable person |
|
Extortion (Blackmail)
|
obtaining property by means of other threats, such as threats to:
a. do something other than physical harm (as a threat to reveal embarrassing fact or damage victim's property) b. do physical but not imminent harm |
|
Burglary (traditional CL)
|
1. entry
2. by break in 3. of the dwelling (place actually used as a sleeping place) of someone else 4. during the night time 5. with the intent to commit a felony inside the structure Things to remember: 1. entry can be by an instrument (ex. crowbar) 2. breaking requires only some force to create an opening (ex. opening a window) 3. D must have necessary intent at time of entry 4. D need not carry out the intent to be guilty 5. burglary can be committed by entering a party of a dwelling, that is, as by going from one room to another (but not by entering a thing/item within a dwelling - ex. armoire) |
|
Intent to Commit a Felony
|
Prosecution must prove:
1. D entered with intent to commit certain acts and 2. those acts if committed by D would be a felony Prosecution need not prove D knew the law made these acts a felony Mistaken belief that one's intended conduct will be a felony is not "intent to commit a felony" |
|
Arson
|
Elements of arson:
1. malicious 2. burning 3. of another's dwelling Burning requires: 1. some physical damage 2. by fire (not smoke or heat) 3. to apart of the structure itself Awareness of a high risk is enough to make burning malicious Arson requires that some part of the structure be burned by fire (mere charring not enough) |
|
Criminal Homicide
|
Three traditional homicide offenses:
1. murder 2. voluntary manslaughter 3. involuntary manslaughter Ask: 1. Did D "cause" death of V? 2. Did D act with "malice aforethought"? [if yes, murder unless ...} 3. Was there also adequate provocation? [if yes, voluntary manslaughter] 4. If D caused death but there was no malice aforethought, did D either a. act with criminal negligence? [involuntary manslaughter] b. cause death while committing misdemeanor? [voluntary manslaughter] |
|
Causation
|
1. "But for" acts of D, V would not have died as and when he actually did die
2. Year-and-one-day rule: V must die within a year and one day from the infliction of the injury 3. Proximate causation If no causation, D is often guilty of attempted murder |
|
Proximate Causation
|
Proximate causation exits if V's death naturally results from D's actions, even if this occurs in an unexpected manner, unless the events are extremely unusual
But proximate cause is lacking if a "superceding" factor is interjected into the chain of causation; such factor must be: a. independent of D's actions b. unforeseeable c.sole immediate cause of V's death D who simply speeds up death of dying V does not factually cause V's death Intervening event cannot break chain of proximate cause if it only becomes a contributing cause of death |
|
Murder
|
Killing is with "malice aforethought" and therefore murder if D acted with:
1. intent to kill or 2. intent to cause serious bodily injury or 3. awareness of extremely high risk that death will result ("abandon and malignant heart" doctrine or "depraved mind" murder) or 4. intent to commit a felony |
|
Felony Murder
|
General rule: accidental deaths caused during commission of a felony are murder
-If D has a defense to underlying felony, accidental death cannot be felony murder -Death must have been foreseeable or some courts instead require the felony to have been "dangerous" as committed -All cofelons are guilty of a felony murder, if the death was foreseeable to them |
|
Merger Rule
|
Felony murder cannot be based on felony assault (or battery) causing death of victim ("merges" into death of victim)
|
|
Resisting Vs, Bystanders, and Unlucky Felons
|
1. many courts will not apply felony murder if the fatal shot was not fired by one of the felons (the "agency" rule)
2. courts are most reluctant to apply felony murder where person killed is one of the felons |
|
Degrees of Murder
|
1. Certain statutory provisions divide murder into degrees
a. Most killings with "malice aforethought" are 2nd degree murder b. Certain felony killings and premeditated killings are 1st degree murder 2. Premeditation requires some conscious consideration over whether or not to kill Provoking incident, even if not enough to reduce killing to voluntary manslaughter, may show absence of premeditation |
|
Voluntary Manslaughter
|
1. Intentional killing that would otherwise be murder is reduced to voluntary manslaughter if 3 things are shown:
a. objectively reasonable provocation b. this actually caused D to kill V c. D acted on that before an objectively sufficient cooling period elapsed 2. Some situations insufficient "as a matter of law": best example - "mere words" |
|
Involuntary Manslaughter
|
Killing is involuntary manslaughter if D killed either:
1. in the course of committing a misdemeanor 2. with criminal negligence (when negligence used for criminal liability, it requires more negligence than is necessary for civil liability) |
|
Liability for Omissions
|
1. Criminal liability can sometimes rest upon a person's failure to act
2. Omission can be sufficient only if: a. D has legal duty to act, which can arise from criminal law, tort law, K law, or other body of law b. D was aware of the facts giving rise to the duty to act c. performing the duty was possible 3. D must also have necessary intent Where D has no legal duty to act, criminal liability cannot rest upon D's failure to take action |
|
Rape or Sexual Assault
|
Rape = sexual intercourse by a male with a woman not his spouse without the woman's effective consent and by force
Fraud will render woman's consent ineffective only if fraud goes to te nature of the act |
|
Kidnapping
|
1. Either
a. Confining or restraining a person or b. Moving (asporting) a person and 2. Without authority of law Where V of a crime such as robbery or rape is confined/moved during crime, many courts hold that kidnapping does not also occur unless confinement/movement is not merely incidental to the other crime because it: a. increases risk to V or b. makes successful completion of the crime more likely |
|
Possession Offenses
|
1. Crimes consisting of "possession" do not necessarily involve either an "act"or an "omission"
2. Possession by actual physical control must involve more than "momentary" control 3. "Constructive possession" requires - a. ability to exercise actual physical control b. with awareness of that ability c. for a period sufficient to enable the person to terminate the possession |
|
"Parties" to a Crime
|
1. all persons are guilty of a crime who
a. commit the act constituting the crime (primary actors) or b. participate in it (as "aiders or abettors" or accomplices) either before or during its commission or c. use an "innocent agent" to commit it 2. assistance to the primary actor after the crime is complete does not create liability for the crime (common law: accessory after the fact) 3. acquittal of one participant does not affect liability of others |
|
Aiding and Abetting: Accomplice Liability
|
Elements of liability as aider and abettor or accomplice:
a. participation in the offense; and b. with the required intent Participation can be either: a. encouraging or b. physical assisting the primary actor BUT mere presence at scene of commission of crime not enough To have required intent, aider and abettor must both: a. know the primary actor is going to commit the offense and b. intent (want) to encourage or assist him in doing so (look for evidence that D had motive for wanting primary actor to successfully commit crime) Aider and abettor can be convicted even if the primary actor is acquitted |
|
Exceptions to Liability as Aider and Abettor
|
Participant in an offense is not guilty of the offense if either:
1. participant is a member of the class of persons protected by the crime (ex. underage female engaged in sex act - statutory rape) 2. crime inherently involves several types of participants and only some are made liable (ex. in drug sale case, buyer is not aider and abettor to sale; in a bribery case, crime involves "givers" of bribes and "acceptors" but only "acceptors" are guilty) |
|
Attempt
|
It is a crime to attempt to commit an offense
Elements: 1. Person must go far enough (do something constituting a substantial step towards commission of the crime) 2. with intent to commit the crime Possible defenses: 1. abandonment of attempt:no defense 2. impossibility of success For attempt, 2-part intent must be proved: 1. intent to complete the acts constituting attempted crime and 2. any intent necessary for the attempted crime |
|
Impossibility Doctrine
|
"Legal" impossibility is a defense
"Factual" impossibility is not a defense Impossibility is quite different from mistake as a defense generally; impossibility situations all involve mistaken beliefs by Ds that the attempts will be successful; the impossibility defense applies only in attempt prosecutions |
|
Type 1 Situations: Mistake about One's Ability
|
It will be impossible for D to:
a. perform the conduct she has set out to perform or b. cause the result she has set out to cause BUT D mistakenly believes she will be successful This is factual impossibility; D has not impossibility defense and is guilty of attempt |
|
Type 2 Situations: Mistake about Criminal Law
|
D's intended conduct would not constitute a crime if completed; but D thinks it would be a crime because D is mistaken about the criminal law
This is legal impossibility; D has a defense and is not guilty of attempt |
|
Type 3 Situations: Mistake about Circumstances
|
D's intended conduct if completed would not constitute a crime, because one of the circumstances is not what is required for the crime
BUT D is mistaken about this circumstance if the circumstance was as D believed it to be, her intended conduct would constitute a crime Traditional rule: this is factual impossibility; D has no defense and is guilty of attempt |
|
Solicitation
|
Consists of:
1. asking someone to commit an offense 2. with intent that the person commit that offense Solicitation is a crime even if it is immediately rejected |
|
Conspiracy
|
Elements:
1. entering into an agreement to commit a crime; and 2. with the intent that the crime be committed Modern statutes often require an overt act in furtherance by one member of the group Possible defenses: 1. withdrawal 2. no "meeting of minds" (acquittal of co-conspirators) 3. impossibility (not a defense) |
|
Co-conspirator Rule and Withdrawal
|
Co-conspirator rule: all members of a criminal conspiracy are guilty of crimes committed by other members of that conspiracy if those crimes are both:
a. committed in furtherance of the scheme and b. a foreseeable result of the scheme "Defense" of withdrawal form the conspiracy: a. withdrawal is no defense to the crime of conspiracy b. an effective withdrawal is a defense to a crime for which the D is liable under the co-conspirator rule For withdrawal to be effective, it must be: a. fully communicated to all other members of the conspiracy and b. before the crime is committed |
|
Defense of "No Meeting of Guilty Minds"
|
D charged with conspiracy must be acquitted upon proof that all other members of the alleged conspiracy have been acquitted or the equivalent
Equivalents of acquittal a. not guilty by reason of insanity or b. person did not intent to go through with crime - had secret reservations (ex. undercover cop) |
|
Ignorance or Mistake of Fact
|
Ignorance/mistake concerning a matter of fact will affect criminal liability only if:
a. it shows D lacked the intent required for the crime and b. the mistake was objectively reasonable If mistake shows absence of necessary "specific intent," it need not be reasonable "Specific intent" crimes a. larceny, other property crimes (intent to permanently deprive or defraud) b. burglary (intent to commit offense) c. attempt and conspiracy (intent to complete the target offense) d. any offense defined as doing something "with intent to" Major crimes not specific intent crimes: arson and rape Analysis under modern statutes: mistake of fact requires acquittal whenever it shows the lack of whatever mental state is required for the crime |
|
Criminal Intent
|
Crimes generally require mens rea
Exceptions: "strict liability" crimes do not require awareness of all the facts: 1. statutory rape: no knowledge of V's age required 2. bigamy: D need not know at item of 2nd marriage he still has a living spouse 3. regulatory crimes (low penalty, enforcement device for regulatory scheme - ex. traffic offenses) Modern statutes use more precise terminology in defining mens rea: 1. purpose: conscious desire 2. knowledge: awareness of practical certainty 3. recklessness: awareness of substantial risk 4. negligence: reasonable person would have been aware of substantial risk Transferred intent: if D intends to injure one person and accidentally inflicts a similar injury upon another person, she will be treated as if she intended to injure person actually harmed |
|
Ignorance or Mistake of Law
|
Ignorance that criminal law makes one's conduct a crime is not a defense
D's affirmative (but mistaken) belief that criminal law did not prohibit her conduct is a defense, if: a. belief was objectively reasonable b. D relied upon i. statute later held invalid ii. judicial decision later overruled iii. official interpretation of law by public official (ex. attorney general) Defense of mistake of law cannot be based on advice of counsel Occasionally the mens rea of a crime requires knowledge that law is being violated (look for "knowing" or "willful"); if this is the case, advice of counsel may show lack of that mens rea |
|
Insanity - M'Naghten Rule
|
D is entitled to acquittal only if facts show that at time of crime:
1. he had a serious mental disease or defect 2. this caused a defect in his reasoning abilities 3. as a result, he did not either a. understand the nature of the act he was doing or b. understand that his act was wrong Under M'Naghten Rule, an insanity defense CANNOT be based upon loss of control |
|
Insanity - Modern MPC Definition
|
D is not guilty by reason of insanity if, as the result of serious mental illness or defect, he either:
a. has lost the substantial capacity to understand his actor its wrongfulness or b. has lost the substantial capacity to conform his conduct to the law's requirement Loss of control may be a defense under - 1. statutory versions of insanity based on MPC 2. the "irrestistble" impulse version of insanity used in some jurisdictions |
|
Unconsciousness
|
Criminal liability must be based upon a "voluntary act" of D
If D was unconscious, her behavior cannot constitute the necessary voluntary act Impaired consciousness (such as sleepwalking) may show absence of a voluntary act but not insanity |
|
Involuntary Intoxication
|
Intoxication is involuntary if D did not know substance was intoxicating or D consumed substance under duress
Involuntary intoxication - treated as mental illness and insanity test applied |
|
Voluntary Intoxication
|
Voluntary intoxication: D should be acquitted only if crime requires proof of a specific intent and the intoxication shows he lacked that intent
Voluntary intoxication as applied ot homicide analysis: a. can "disprove" premeditation (1st degree murder reduced to second degree murder) b. cannot "disprove" malice aforethought (cannot reduce murder to manslaughter) Modern statutory analysis: voluntary intoxication requires acquittal if: a. crime requires mental state higher than recklessness and b. intoxication shows lack of this mental state Minority approach: voluntary intoxication is completely irrelevant to criminal liability: a. thus, D cannot argue lack of intent because of intoxication b. Sup Ct has held this is constitutionally permissible |
|
Entrapment
|
Majority (Subjective) Rule: entrapment occurs only if:
1. D was not predisposed to commit crimes of the sort charged and 2. police officers created the intent to commit the offense in her mind Minority (Objective) Rule: entrapment occurs if police activity would case a reasonable and unpredisposed person to form the intent to commit the crime |
|
Necessity of "Choice of Lesser Evils" Defense
|
It is a defense that:
a. D believed that committing the crime would prevent an immediate threatened harm b. D believed this threatened harm would be greater than the harm that would result from commission of the crime c. these beliefs were objectively reasonable Necessity is not a defense if either: a. D wrongfully created situation making choice necessary or b. D killed another to avoid his own death D charged with escape is likely to have a defense of necessity only if D attempted to surrender to authorities as soon as the immediate threat was over |
|
Duress or Coercion
|
General rule: it is a defense that D was compelled to commit the crime by a threat the if he did not do so, the threatening person would do:
a. imminent and physical harm b. to Do or 3rd person Exception: duress is not a defense to a crime that consists of an intentional killing |
|
Self-Defense
|
It is a defense that D believed that:
a. he was in imminent danger of being illegally physically harmed by another b. the force he used was necessary to prevent the threatened harm c. these beliefs were objectively reasonable |
|
Deadly Force
|
If crime involved deadly force, D has defense only if she reasonably believed:
a. she was threatened with imminent death or serious bodily injury and b. deadly force used was necessary to prevent that harm to her Need to "Retreat" Minority Rule: any opportunity to retreat must be taken before using deadly force a. applies only if retreat possible with complete safety b. no duty to retreat when attacked in one's own home Need to "Retreat" General Rule: opportunity to retreat is a factor to consider in determining whether deadly force was reasonable |
|
"Aggressor" Rule
|
Person who starts fight cannot use force in self-defense during the fight
Aggressor regains the right to use force in self-defense during a fight by either: 1. withdrawing from the fight or 2. giving notice of desire to do so |
|
Imperfect Defense to Homicide Cases
|
D charged with murder who actually but unreasonably believed killing was necessary in self-defense:
a. not entitled to acquittal but b. should be convicted of manslaughter rather than murder |
|
Defense of other Persons
|
It is a defense that
1. D believed that another person was threatened with imminent unlawful physical harm by a 3rd person 2. D believed that the force she used was necessary to prevent the harm 3. these beliefs were objectively reasonable Availability of defense turns on whether it reasonably appears to D that person she aided was in the right |
|
Defense of Property
|
General rule: it is a defense that force was used in the reasonable belief that it was necessary to prevent unlawful interference with real or personal property
Limits: 1. only non-deadly force can be used to defend property 2. force can only be used to prevent the interference, and not to regain property, except in immediate pursuit |
|
Double Jeopardy
|
Once D placed in jeopardy for offense, D can never again be tried for that "same offense"
-2nd prosecution not barred if 1st ended before jeopardy attached -acquittal is always final - no 2nd trial permitted (any finding that "evidence is insufficient" made by trial or appellate court is an acquittal; conviction of a lesser included offense is an implied acquittal of charged crime) Exceptions - 2nd trial permitted if: 1. 1st proceeding ended in a mistrial declared for "manifest necessity" (hung jury) 2. 1st proceeding ended in mistrial declared on motion of D 3. 1st rial ended in conviction reversed on appeal because of procedural error 4. 1st trial ended in conviction reversed on appeal because verdict was "against weight of sufficient evidence" 5. 2nd prosecution is by a different sovereign jurisdiction |
|
Attachment of Jeopardy
|
Attachment of jeopardy under federal constitutional law:
a. jury trial: when jury is sworn b. bench trial: when 1st witness is sworn Attachment of jeopardy under Texas law: a. jury trial: when jury is sworn (same as federal) b. bench trial: when both i. parties have announced ready and ii. D pleads to the indictment |
|
Successive Prosecutions
|
Successive prosecutions for different offenses are barred only if one offense is a lesser included offense of the other, because only then are the two offenses the "same"
Blockburger Test for determining "lesser included" nature of different offenses: 1. if each offense contains at least one element not contained in the other, then neither is a lesser included offense of the the and successive prosecutions are allowed 2. otherwise one is a lesser included offense of the other and successive prosecutions are barred Collateral Estoppel Rule: acquittal of one offense bars 2nd prosecution for different but related offense if D shows both: 1. precise factual basis for acquittal in 1st proceeding 2. that fact that also controls in 2nd prosecution |
|
Privilege against Self-Incrimination
|
5th A - authorities cannot compel a person to engage in self-incriminating "testimonial" behavior (intentional communication of one's thoughts)
Non-testimonial behavior (that can be compelled): breath and blood samples, field sobriety test, stand in a lineup, speak so witness can hear voice, walk so witness can observe D's limp |
|
Grant of Immunity Removes Protection
|
if a person is granted effective immunity, privilege against self-incrimination no longer applies and person can be compelled to answer
|
|
Search and Seizure
|
4th A - evidence obtained as result of unreasonable search and seizure cannot be used to prove a criminal D's guilt
|
|
Search - defined
|
any official action that intrudes upon a person's reasonable expectation of privacy
Not searches: 1. aerial surveillance of fenced yard 2. examination of trash left in yard 3. telephone pen register 4. using beeper to follow car on public streets 5. having dog sniff luggage at airport Searches: 1. rigorous squeezing of luggage in bus overhead rack 2. thermal imaging scan of house |
|
Plain view
|
officers merely exercise their right to engage in "plain view" and do not search if they
a. reach a location without violating 4th A and b. simply look at something in open view |
|
Open fields
|
officers who go upon any unoccupied or undeveloped area of land not part of the "curtilage" of a dwelling donot "search"
Curtilage = area surrounding and used in connection with a residence |
|
Reasonableness of Searches
|
two requirements:
1. must be pursuant to valid search warrant (but exceptions) and 2. must be based on probable cause (facts from which a reasonable person would conclude that there is a "fair probability" that seizable items will be found in the premises) Seizable items = contraband, "fruits" of crime, instruments of crime, evidence that crime was committed or tat a particular person committed (mere evidence) |
|
4th A Search Warrant Law
|
search warrant = judicial order authorizing search and seizure
Warrant must be issued on info constituting "probable cause": affidavit must set out facts from which issuing magistrate can make independent judgment that probable cause exists warrant must describe specifically both: 1. place to be searched 2. items to be searched for and seized |
|
Announcement and No Knock Entry
|
before entering premises, officers must "knock and announce" and give occupants opportunity to answer
No knock entry permitted if officers have reasonable suspicion that occupants would resist officers by using force or remove/destroy items for which warrant issued (drugs) |
|
Consent Searches
|
-Require neither probable cause or warrant
-Consent must be voluntary -Consent must be from either someone with a general right of access to premises (actual authority) or someone reasonably believed by officers to have such access (apparent authority) |
|
Searches of Automobiles - Vehicle Exception to Warrant Requirement
|
Vehicle Exception to Warrant Requirement: moving vehicles and those parked in public places can be searched without a warrant
a. BUT probable cause is necessary b. search can extend to any place where items might be found c. contents of containers in car can be examined if car can be searched |
|
Searches of Automobiles - Search Incident to Arrest
|
Custodial arrest of person in a car (or immediately after getting out) permits as an incident of that arrest:
1. search of the passenger compartment (including glove box) 2. BUT not the trunk 3. and cannot be made after D is secured |
|
Inventory Inspection
|
properly impounded car may be inventoried pursuant to standardized procedure
|
|
Exigent Circumstances Searches
|
Warrantless search is permitted if offers have both:
1. reason to believe delaying search to get warrant would result in removal or destruction of the items and 2. probable cause to believe seizable items will be found |
|
Arrests and Incidental Searches under Federal Con Law
|
-Invalid arrest has no effect upon trial court's jurisdiction
-If valid custodial arrest made, automatic right to search two places: 1. person of arrestee (which includes pockets and items found on person of arrestee) 2. area of possible reach -if arrest is made inside premises: 1. officers automatically can look in immediately adjoining places where persons might be concealed 2. protective sweep of entire premises can be made but only if cops have reasonable suspicion that dangerous persons are present -reasonable arrest requires probable cause to believe person committed offense -warrant is required only if premises are entered to search for suspect: 1. suspect's own home - arrest warrant sufficient 2. other premises - search warrant is needed |
|
Nonarrest Detentions and Citizen-Officer Contacts
|
-Detention not valid arrest can often be justified as a Terry Stop
-Terry Stop for investigation may be made on "reasonable suspicion" - some objective basis for officer's suspicion that suspect has committed, is committing, or is about to commit a crime -BUT an anonymous tip not enough if not adequately corroborated -Limits on field stops: 1. cannot be too lengthy 2. suspect cannot extensively be moved 3. no automatic right to search -If probable cause develops during field stop, detention becomes valid arrest -Weapons search can be made if cop has reasonable fear for safety (must be limited to pat down; permissible only to determine if suspect has weapons) |
|
Lineup Law
|
D has 6A right to lawyer present at lineup or showup if it is conducted after judicial proceedings have begun:
a. not triggered by D's arrest alone b. no right to lawyer at showing of photographs c. can be waived by D D has due process right to have procedure not be extremely suggestive (standard: was procedure so suggestive that it creates high likelihood that witness will erroneously identify D as perpetrator?) If witness identifies D at procedure conducted in violation of either rule: 1. prosecution cannot prove that identification but 2. witness can still make "in court identification" of D if prosecution establishes that this would have an independent source |
|
Confessions
|
May be inadmissible on numerous grounds:
1. involuntary 2. product of delay in bringing arrested D before magistrate 3. Miranda violation 4. 6A right to counsel violation 5. product of an unlawful arrest or detention |
|
Voluntariness
|
1. Confession involuntary (and constitutionally inadmissible) if:
a. result of coercion or threats b. on totality of circumstances, cops' misconduct "overcame D's will" 2. D's undisclosed mental impairment alone will not create involuntariness 3. some matters are only factors to consider in the totality of the circumstances analysis: a. deception of suspect by cops b. delay in presenting suspect before magistrate c. promise of a specific benefit made by "person in authority" |
|
Miranda
|
Miranda rights apply if suspect is in custody and suspect is subjected to interrogation
Miranda requires: 1. suspect has right to counsel present during questioning 2. suspect must be given Miranda warnings (right to remain silent; anything said may be used against suspect; right to have attorney present; right to an appointed attorney if unable to provide own) 3. interrogation can begin in absence of attorney only if suspect first waives right to counsel 4. no interrogation must occur if suspect indicates desire to remain silent If suspect invokes right to counsel, cops may not reapproach suspect unless attorney is present If suspect invokes right to counsel and then spontaneously seeks to discuss crime with cops, cops may seek waiver of counsel and question suspect Questioning after right to counsel was waived must cease only if suspect makes an unambiguous request for counsel |
|
Constitutional Confession Law: 6A Right to Counsel
|
in interrogation situations, accused also has 6A right to counsel if judicial proceedings have begun, and this provides more protection than Miranda does
If suspect is already represented by counsel, officers' interference with counsel's access to client-suspect will not invalidate Miranda waiver but it will render invalid waiver of 6A right to counsel |
|
Exclusionary Rule
|
Fruits of Poisonous Tree Rule: if a search is unreasonable, all fruit (evidence obtained as result of search) must be excluded
Exception - Good Faith: reasonable officer would believe that the actions were reasonable because of warrant or statute later held invalid (evidence admitted) Inevitable discovery: evidence would inevitably have been obtained legally (admissible) |
|
Impeachment Exception to Federal Exclusionary Rule
|
D who takes witness stand can be impeached by some otherwise inadmissible evidence:
a. evidence obtained in violation of Miranda or in an unreasonable search can be used b. involuntary confession cannot be used to impeach (unreliable) |
|
Standing - In Residence
|
1. mere authorized presence in premises is not enough for standing
2. presence pursuant to a short and "commercial" stay is not enough (ex. packaging drugs) 3. presence as part of overnight personal visit is enough |