Crim Fall

Criminal Fall Outline
Saturday, October 09, 2010

Criminal Law
Incur formal and solemn pronouncement of moral condemnation of the community Principles of Punishment Accomplish primary goal of protecting society and to achieve all of related goals of theories applicable Retribution- proportionate punishment according to crime IsolationDeterrence- utilitarian; only justifiable if results in reduction of crime General/specific deterrence Education Rehabilitation Sources of Criminal Law • Common Law • Statutory Law • Classifies into felony or misdemeanor. • Model Penal Code Determining Appropriate Sentence Constitutional Limitations A. Bill of Rights Proportionality 8th amendment: excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. "punishment should fit the crime" 3 Factor Test 1. Gravity of offense and harshness of penalty 2. Sentences imposed on other criminals in same jurisdiction 3. Sentences imposed for commission of same crime in other jurisdictions A. 14th amendment via states Law which abridges privileges or immunities of citizens of US Due process Equal protections of laws Sentencing State Law Majority: determinate sentencing (no discretion to corrections officers to reduce sentences based on rehab in prison) Federal Law: Federal Sentencing Guidelines Death penalty does not violate constitution; but death penalty for other than murder usually disproportionate Prohibition on retroactive crimes (Ex Post Facto) Legislative Intent Plain Meaning Interpreting Statute 1. Statutes should be understandable to reasonable law abiding citizen (cannot be vague) 2. Should not delegate basic policy matters to enforcement officers 3. Judicial interpretation of ambiguous statutes should be biased in favor of accused (Lenity Doctrine) 4. If statutory language is clear then plain meaning governs 5. If common law not defined, then meaning assumed intended 6. Ejusdem generis: general language follows specific terms in statute. Construe more narrow (I.g. dangerous weapons followed by weapon list. Anything not included is not a dangerous weapon) 7. Expression of one thing is exclusion of another: enumerating specific items; anything legislature did not include was left out intentionally 8. Congress legislates with domestic concerns in mind Model Penal Code: does not recognize lenity doctrine. Ambiguity interpreted through purposes of code General Principles in Criminal Trials

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General Principles in Criminal Trials Process 1. Investigation 2. Charges (Indictment) 3. Pretrial Motions a. Exclusion of evidence Preliminary Hearing (probable cause hearing) 1. Trial Plea Bargain 1. Jury Instruction 2. Motion for judgment of acquittal 3. Basis of Appeal (insufficient evidence, improper jury instruction, evidentiary challenge, constitutional challenge) Statutory Law Jury Trials: right to jury only applies to non-petty offenses (more than 6 mo) Few as six (federal govt= 12) Substantial majority to convict (fed= unanimous) Jury Nullification: can return acquittal even if believed guilty based on statute immoral, unjust, punished enough, or misbehavior by prosecutor/officers Proving Case Most criminal trials law is not in dispute. Facts Raw: who did what to whom, when and why? Normative: mental state determination Burdens of Proof A. Burden of Production: Prosecutor must produce enough evidence that rational trier of fact may determine that elements of the crime have been proved beyond reasonable doubt. If fails to satisfy burden of production then defendant entitled to directed verdict Defendants Burden of Production: sometimes requires defendant advanced notice of defenses: more than a scintilla of evidence or enough evidence to raise a reasonable doubt on issue of defense claimed. Burden of Persuasion: Jury determines whose claim is more persuasive. Prosecutors: (Winship Doctrine) person charged with crime presumed innocent: prosecutor burdened with proving every element of crime beyond a reasonable doubt. Defendants Burden of Persuasion: Prosecution to prove beyond reasonable doubt all affirmative defenses (Massachusetts) If Defendant meets burden of production jury must permit defense to be evaluated. If not jury should reject defense. State free to legislate whether burden of proof is on defendant on state for particular facts. MPC: Except for exceptions listed required standard of proof being preponderance of evidence prosecution must prove every element of offense beyond reasonable doubt including conduct that negates an excuse. Prosecutor must prove defenses if defendant meets burden of production. Challenging Credibility Credibility Assessment- Attacking Credibility Remembering: memory of witnesses - ask for precise details Observing: impeding vision- poor vision Truth telling: show bias Communication Fact finding Evidence- Character Evidence A. Act of Propensity Evidence: FRE 404 Generally prohibits using evidence of character or character traits to prove that a party or witness acted consistently with those traits on a particular occasion. Characters poor value in predicting behavior on specific occasion; human tendency to judge based on bad trait. A. Mental Propensity and other Uses of Character Using character to establish that someone had particular mental state on particular occasion. (Ronnie has always been peaceful) Doctrine of Objective Chances: when accused makes mistake, evidence that he or she has been repeatedly claimed to make same mistakes in other instances, can be used to prove that accused in fact was not mistaken in case at hand (date rape) "mistaken consent" Forms of Character Evidence 1. Reputation: people in relevant character speak of your character 2. Opinion: someone who knows you well can offer opinion of character traits Criminal Pro Final Outline Page 2

2. Opinion: someone who knows you well can offer opinion of character traits 3. Specific acts: committed certain actions in past suggest deeper personality traits Example: Jonnie charged with assault. Neighbors testify jonnie peaceful person. 2. next door neighbor opinions jonnie is peaceful person. 3. neighbors recall seeing jonnie take hits. Motive: concerns specific relationship between or among to two or more people that gives a suspect a reason to think or act in a particular way on particular occasion. Motive proven by specific acts. Motive is usually circumstantial evidence to help prove existence of element. Can be explicitly made element of crime (hate crimes) Habit: habit is a very frequently repeated response to very specific stimulus, response so frequent as to make it a good predictor of behavior. "always changes blinkers" Common Plan, Scheme, Design: prior acts relate to broader scheme.

Signature: calling card
Essential Elements of Crime, Claim , or Defense Exceptions to Act Propensity Bar Mercy Rule: allows defendant to seek to raise reasonable doubt about his guilt by proving good character. But allows prosecutor to prove bad character. Pertinent Character Trait of Victim: bad trait of victim Impeachment: offered for act propensity to impeach witness Special Rules: Rape Shield: Prohibits defendant to offer character evidence of immoral behavior by victim. Act+ Mental State+ Result = Crime - Defenses Common Law Model Penal Code Actus Reus Voluntary Act a. Voluntary Act or omission b. That causes social harm Involuntary act: unconscious acts Omissions: no duty to act in order to prevent harm to another unless • Duty based on relationship • Statute • Contract • Assumption of care • Creation of danger Constructive possession: dominion and control. Voluntary: any conduct not product of effort or determination of defendant either conscious or habitual. (excluding civil fine or penalty conduct) Involuntary: reflex, sleep movements, under result of hypnosis, unconscious movements I.g. introducing drugs into jail must be reasonable foreseeable or Omissions: law defining offense provides for it. 2. duty to act otherwise imposed by law Possession: knowingly procured, received thing, acquired control, aware of control for sufficient time. Status: (alcoholic, drug addict) cannot be criminalized Modern Statute/Trends

Mens Rea Specific: intent to engage in proscribed conduct 1. Intentionally causes harm. 2. acts with knowledge that harm certain to occur Transferred intent transfers state of mind of crime. (must be same crime for intent) Exception TI: misidentification may not be considered. (solicitation, attempt, conspiracy, first degree murder, assault, larceny, robbery, burglary, forgery, false pretenses, embezzlement) Purposefully: conscious purpose of causing desired result. Knowingly: aware that result is practically certain to occur. Guilty if finding of willful blindness or deliberate ignorance. If defendant is aware of high probability of fact but avoids or ignores. "ostrich instruction" Recklessly: awareness that conduct of particular nature will cause particular result. Substantial and unjustifiable risk that constitutes gross deviation from reasonable standard of care. Negligently: failure to be aware of substantial Statutory Transferred Intent:

General: awareness of acting in proscribed

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General: awareness of acting in proscribed manner. Volitional doing of prohibited act. (Battery, Rape, Kidnapping, False Imprisonment) Infer all mens rea from conduct If no intent then general intent. Malice: reckless disregard of known risk (common law murder, arson) Strict Liability: conscious commission of proscribed act. Public welfare offenses, statutory rape, selling liquor to minors, bigamy. Defenses of Mens Rea

Negligently: failure to be aware of substantial risk; gross deviation from reasonable standard of care. Factors of Negligence: 1. gravity of harm 2. probability of harm occurring 3. burden of defendant desisting. Recklessness implicates subjective fault that defendant was in fact aware of substantial and unjustifiable risk he was taking, but disregarded.

Discards common law distinction between general and specific intent. Limits mens rea to 4 terms Requires application of mens rea to every material element including affirmative defenses. No strict liability except offenses as violations All attendant circumstances must also be proved with 4 culpable state of minds. Mistake of fact and law:

Mistake of Fact: honest reasonable belief in existence of facts should make act lawful
Specific: defense if mistake fact disproves specific intent General: Only reasonable mistake Mistake of law: ignorance law no excuse even if mistake reasonable. Exceptions: passive crimes or no notice of crime. Natural and Probable Causes: if natural and probable consequences of actions then jury may infer differently.

Defense if a. Knowledge or understanding element of crime. Legal defense if a. Reliance upon official lawmaker b. Defense proved by preponderance of evidence. Causation

Actual Cause: requires government to prove that but for the actions of defendant the result would not have happened when it happened.

But For Test exclusive meaning of causation. Treats proximate cause as issues relating instead to defendants culpability. Caused result with level of culpability required.

Proximate Cause: limits actual but for causation to that directly related to the act. Result too distant or accidental in occurrence to have just bearing on liability. F+P= Direct Cause: act direct cause of social harm If result deviates far from foreseeable, then not and also proximate cause guilty of purp/know. Concurrent Sufficient Causes: if blows of each could have caused result. Obstructed Cause: perpetrator is protected from suffering consequences beyond crime he committed. Unless foreseeable. Accelerating Result: If merely accelerated death, defendant held responsible.

Proximate cause handled within mens rea. Purp/Know: causation not established if result was not intended. Unless Transferred intent Injury less than intended Rec/Neg: causation not establish if result not within risk actor was or should been aware of.

Homicide Unlawful killing of human being with malice Aforethought Victim born alive No aforethought requirement/degrees. Some states protect fetus

Actus Reas
Issue: year and day rule: at common law death occurs more than one year after incident murder is barred. Mens Rea Malice Aforethought 1. Intentional/knowingly kill

Criminal Homicide: purposefully, knowingly, recklessly, negligently cause death (murder, manslaughter, or negligent homicide)
Murder a. Purposefully, knowingly commits or b. Commits during BAKER (burglary, , kidnapping, escape, or rape c. Depraved Heart: extreme indifference to

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1. Intentional/knowingly kill 2. Intent inflict grievous bodily injury 3. Extreme recklessness 4. Felony Murder Kill another in commission or attempted commission of felony. Common law: escape part of felony Felony must be inherently dangerous. (foreseeable risk of death) Degrees of Murder 1st a. willful, deliberate, premeditated "cold blooded. All 3 proven Willful: intent to kill Deliberate: course of action to kill Premeditated: determination to kill No set time Factors: blows after death, ill-will, conduct/statements, threats, brutal killings.

c. Depraved Heart: extreme indifference to human life) d. Felony- presumption of recklessness and indifference to human life Manslaughter a. Committed recklessly b. Committed under influence of extreme mental/emotional disturbance. Heat of Passion Test. 2nd degree Negligent Homicide- negligent 3rd degree felony Reasonable prudent person standard. Should have known/aware of risks. Failure to use ordinary caution

b. Killing by poison, lying in wait c. Felony murder

2nd Purposefully, knowing killing not 1st degree or voluntary manslaughter. Intentional- causing serious bodily harm Felony murder- if not 1st by statute Depraved Heart: extreme reckless killing Voluntary manslaughter- intent to kill in heat of passion. No malice Test 1. Response to provocation Would reasonable man lose control? (mere words not enough) 2. Heat of passion 3. Time lapse not enough to cool down 4. Defendant subjectively has not cooled off. Involuntary: unintentional killing

Rape Sexual intercourse by male with female without consent 1. Forcibly 2. Means of deception 3. Asleep or unconscious 4. Non consent (underage, disabled, drugged, mentally unable) Male sex with female not wife a. Compel force, threaten, bodily injury b. Substantially impaired c. Unconscious d. Less than 10 2nd degree unless- bodily injury or not voluntary social companion with sexual history. Fraud: fraud in factum: (not consenting to sexual acts) No strict liability statutory rape Gross Sexual Imposition Criminal Pro Final Outline Page 5

Statutory Rape: strict Liability

Gross Sexual Imposition 1. Threaten (job loss) 2. Mental illness 3. Mistaken husband Theft Larceny 1. trespassory taking and 2. carrying away of 3. personal property 4. of another person 5. intent to steal. 1. Trespassory: wrongful 2. Taking: interference possession rights 3. Carrying away: even one inch 4. Personal property 5. Of another: not true owner just sole possession 6. Intent to steal (Specific) Asportation: take and carry away Does not require to steal from lawful owner. Larceny requires permanent deprivation. (if intent does not exist at time but later decides to keep, cont trespass doctrine) Burglary: 1. breaking and entering 2. dwelling 3. nighttime 4. intent to commit a felony. (specific intent) Continuing trespass- defendant retaining possession of item is trespass and moment permanently hold item then larceny is complete. Lost property: finder must make reasonable effort to find owner. Breaking Bulk Doctrine: when bailee breaks open bale and takes portion then larceny. Larceny by trick: obtain property for one reason and with another intent. False Pretenses: knowingly obtains title by false premises. False representation of fact. Nondisclosure only represents false pretense if fiduciary relationship involved. Embezzlement: entrustment of property then conversion to personal use. Value is market value. Single larceny doctrine: same bundle or parcel (same larcenous impulse)

Receiving Stolen Property: person has reasonable cause or should have reasonable cause to believe property obtained through theft. Dangerous weapon: represents or conduct that person is armed in manner to lead reasonable person. Use of Force: if use of force is used to overcome interference of taking then armed robbery.

Attempt 1. Specific Intent to commit crime 2. some acts in Substantial step in a course of conduct planned furtherance of that intent. to culminate commission of crime. Mens Rea Requirement: 1. mental state crime requires 2. purpose to bring about acts and Same Penalty as crime attempted. results that are elements of crime. 3. merely knowing of existence of attendant circumstances. Defenses Negligent crimes are logically impossible. Allows renunciation or abandonment crime as defense: voluntary renunciation of person's criminal purpose. Actus Reus Test Preparation is not enough; must be in dangerous proximity of committing crime. Indispensable: control over all factors in commission of crime. Nothing left undone. Last Proximate Act- test abolished Criminal Pro Final Outline Page 6 Not all disturbing remarks are criminal threats. Most jurisdictions do not recognize factual impossibility only true legal impossibility as defense. Legislatures can make certain preliminary conduct a crime.

Last Proximate Act- test abolished Penalty is proportion of crime. Factual Impossibility: mistaken about facts but if correct crime would have been accomplished. Not support by CL Defenses Legal Impossibility Defense: D believes crime but legally not a crime. Does not recognize abandonment of crime defense. Crime complete when perpetration line crossed. Solicitation 1. Soliciting another to engage in criminal conduct 2. With intent that that person do so Party does not need to consent as crime is completed as soon as solicitation. 1. Commands, encourages, requests another to engage in specific criminal conduct. 2. Immaterial failure of communication 3. Renunciation defense: after solicitation persuade other or prevent crime. Solicitation Merges into crime of attempt and completed offense. Cannot convict person of both solicitation and attempt.

Conspiracy Agreement between 2 or more persons to commit a crime. Specific intent crime Intent to agree inferred by stake in outcome. Agrees to engage or aid in conduct that constitutes crime. Requires an Overt Act Any form of behavior that can reasonably be interpreted as behavior as agreement. States are split on issue of plurality Merger Majority Rule: conspiracy separate offense than any substantive crimes. Abandonment: if accused abandons agreement and withdraws. Courts require communication with coconspirators or notification of authorities.

Conspiracy is separate crime from object crime. (i.g. conspiracy to rob bank and bank robbery) Unilateral requirement (i.g. undercover officer) Elements 1. To agree 2. To commit the object crime Mere presence is not enough to establish conspiracy Plurality requirement: two parties needed. Conspirators not need to know everyone in conspiracy. "wheel conspiracy" Proof can be used against every other member of conspiracy. Pinkerton Vicarious Liability: Overt act of one conspirator may be act of all without new agreement specifically directed to act. Offenses must be reasonably foreseeable. Many states do not accept. Abandonment not defense Merger: conspiracy may merge. No Grading sentences

Accomplice Liability Aiding and abetting; accessory Not a separate crime and only applies if target crime is committed. Principal does not have to be convicted for accomplice to be held liable. Eliminates distinction between principals and accessories. All are principals and imposed to same Accomplice liable even if principal never tries to punishment. commit crime. Accessory after the Fact: some states

Elements

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Elements 1. Intentional assistance 2. Same required state of mind as principal 3. Exceptional Natural and Probable Consequences Principal must be convicted for accomplice liability Accomplices 1. Principal first degree perpetrator 2. Principal 2nd degree (accessory at fact) assist in crime and scene of crime. 3. Accessory: not present but counseled, advised, or directed commission of crime or aided in escape. Aiding and abetting More than evidence of general criminal activity . Must prove specific intent and knew of proposed crime. Encouraging can constitute aiding Mental State 1. Mental state of crime and 2. purpose to commit act of aiding.

Accessory after the Fact: some states Mental State: must have purpose of aiding both have separate statute for any one in committing acts and underlying substantive who aids, assists after crime. crime. Jury may charge defendant both as principal and accessory. Does not recognize natural and probable Natural and Probable Consequences Doctrine: Some jurisdictions hold liable for natural and probable consequences: foreseeable consequences of actions aided. (i.g. murder in theft) Innocent Instrumentality: person who uses individual to commit crime is principal unless person used was aware of high probability of being used. Willfully blind not defense. Some states can be convicted of greater crime than perpetrator: more guilty mens rea.

Defenses
Right to Present- 5th amendment + 6th amendment (due process + right to confront witnesses) Inconsistent Defenses allowable in court if supported by sufficient evidence Client Perjury: dissuade client from making false statements, professionally acceptable to notify court of clients intent. Some courts encourage lawyers to call defendant to witness and have him narrate to avoid lawyer making false statements. General Defenses 1. Countering/Contesting a. Failure of proof- Motion for directive verdict/ judgment of acquittal b. Impeachment c. Misidentification- DNA evidence d. Alibi Defense- places defendant at relevant time in a difference place than the scene involved and so removed as to render impossible for accused to be guilty party. 1. Affirmative (Burden of Proof always on Prosecution in MA) a. Justified- e.g. self defense If allowed in evidence, then right to defense/justification claim b. Excused- insanity, incompetence 1. Cultural/Religious Defenses 2. Limitation on the Right a. State law- states has right to limit certain rights to defense b. Speculative/unwarranted c. Unduly Repetitive Common Law Model Penal Code Self Defense Right to defend oneself against unlawful force 1. Honest reasonable fear of personal harm 2. Imminent and unlawful 3. Belief force necessary to repel Majority: objective view 4. Force proportionate 5. Defendant not aggressor 6. (some states) defendant must retreat before using deadly force. Non-deadly force Battered Spouse Syndrome Defense Person may not use self defense to resist an arrest even if arrest in unlawful. Deadly Force Necessary to protect himself against 1. Death 2. Serious bodily injury 3. Forcible rape 4. Kidnapping *Cannot be an aggressor Defendant must prove self defense by Criminal Pro Final Outline Page 8 Modern Trends

Defendant must prove self defense by preponderance standard. Use of Non-deadly force One is never permitted to use deadly force to repel non-deadly attack. Use of Deadly Force When confronted with deadly force Retreat Rule Majority: no duty to retreat Castle Rule: no duty to retreat if in house unless aggressor. Battered Spouse Syndrome: woman cannot be expected to retreat before using deadly force Imperfect Self Defense Disproportionate use of force Defendant erroneously believed in danger Murder to manslaughter Defense of Others justified in using to extent that 3rd party is justified in acting in self defense. Majority View: Reasonable Appears necessary Defense of Property Use of non deadly force if reasonably believes force is necessary to prevent imminent and unlawful dispossession of property. No use of deadly force allowed. Hot Pursuit can use reasonable force to retake. Defense of Habitation Person may use deadly force to defend home. Law Enforcement A. Crime prevention Majority rule: use deadly force to prevent violent crime. B. Arrest: fleeing felon rule separates citizen/officer Pursue and use deadly force if reasonably believed felony Spring Guns: allows contraption as if present

Retreat Rule Cannot use deadly force if complete safety by retreating is an option. Retreat not required at home or place of work. Defense of Others 1. No more force than reasonably believes necessary to protect 3rd party. 2. Reasonably believes 3rd party justified in using self defense 3. Reasonably believes intervention is necessary for 3rd party protection.

Defense of Property No immediacy requirement
Defense of Habitation No recognition Law Enforcement May not use deadly force to apprehend felon. Use Deadly force if threat to others

No allowance of spring guns.

Excuse Defenses
Necessity - Choice of Evils 1. Plaintiff faces choice of evils 2. No apparent legal alternative 3. Imminent harm 4. Plaintiff reasonably chooses lesser evil (a crime) 5. Plaintiff did not create necessity Split as to homicide *Generally Economic Harm is not enough *State court can place burden of proof on defendants for affirmative defenses. Civil Disobedience- Direct/Indirect Direct: protesting existence of law by breaking law directly. Indirect: violating law that is not itself object of protest Duress Model Penal Code: no imminence or deadly force required Murder not exempted. Entrapment: Objective Test *objective officers nature of police conduct before crime

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protest

Duress 1. Plaintiff coerced to commit crime 2. By unlawful threat of death/grievous injury 3. No fault of plaintiff Does not excuse murder *Future harm is not enough

Entrapment 1. Applies only to government agents 2. Subjective (majority) 3. Issue of Selective Prosecution *subjective defendants disposition before offense (predisposition: defendants willingness to commit crime before entrapment) Competency (To stand Trial) 1. Focus- Plaintiffs state of mind at trial 2. Test (Preponderance of Evidence on defendant to prove unable a. To understand charges b. To assist lawyer Usually raised before trial and is submitted to examination and cross examination. Burden of Proof on defendant. Usually bench trial. Once Plaintiff found incompetent Civil Commitment until found competent. Length of holding must be reasonable proportionate to crime. Drugs can be used to restore sanity. Insanity Insanity not constitutional right. Focus- plaintiffs state of mind at time of crime. Insanity Tests

Involuntary: Self Induced Usually cannot be charged with crime of purpose or knowledge

a. M'Naughton Rule: distinguish right from wrong b. MPC Test: lacked capacity to conform conduct
to requirements of law.

c. Irresistable impulse: unable to control actions.
Procedure of Insanity (Notice) Meet Burden of Proof Verdict- Not guilty by reason insanity, not guilty, guilty but mentally ill) Confinement

Diminished Capacity- Partial Responsibility
Capacity (infancy) Under 7 no criminal activity 7-14 presumed 14+ same as adult

MPC (Extreme mental or emotional disturbance) 15 under- JC 16-17 " " Unless court waives and binds order (judge decision)

Intoxication Voluntary: generally not excuse Involuntary (some states complete defense) 1. unaware Intoxication is defense. Can negate purposeful/knowledge Burden of proof for defendant to prove.

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1. unaware 2. Forced to take 3. Unforeseeable (medication side effects) May serve as defense for general/specific Strict Liability Cannot be defense unless negates element of crime.

Burden of proof for defendant to prove.

Criminal Procedure
Tuesday, September 28, 2010 8:12 AM 4th Amendment: Rights of people to be secure in their persons, homes, papers, effects, against unreasonable searches and seizures, shall not be violated, and no warrants issue but upon probable cause, supported by oath, describing place, persons to be seized. Theme: Balance of prerogatives of government and liberty of the individual  Warren Court: civil liberty (Mapp and Miranda) 60s  Rehnquist Court: lifting constraints on police "War on Drugs" 80-90s  Warren Court- applies federal rules to states Overview 14th amendment fused state/federal constitution law "not deprive any person of life liberty or property without due process of law.

Exclusionary Rule requires suppression of evidence obtained in violation of 4th
Mapp v Ohio - suppression of evidence covered state Miranda- protects accused 5th rights against compelled self incrimination Criticism: violates federalism- tips scale too much in favor of accused 1970s- court limits exclusionary rule  Deny standing  Good faith exceptions  Curtail impact of Miranda and Mapp States can expand protections; constitution is floor mandate Search and Seizure Framers Intention: Avoid open ended licenses to search View: Warrantless searches and seizures are generally unreasonable barring certain circumstances When Does 4th amendment apply? Was there a search under the 4th?

" 4th implicated only when government intrudes into an area deemed in one in which citizen may reasonably expect privacy."
Whether private party is covered by 4th is determined by whether he is "acting as an instrument of the state" 1. Degree of government encouragement 2. Purpose of action (government or promote own business objective) Reasonable expectation of Privacy "people not places" Katz 1. Does person have reasonable expectation of privacy. 2. would society deem as objectively reasonable? Overturned Olmstead Trespass Doctrine

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Whether search occurred: the setting observed and vantage point of search. Home has Greater Expectation of Privacy Overnight Guests of home afforded protection under 4th. (Minnesota v Olsen) Hotel rooms are protected (Stoner v CA) Cannot use technology that trespasses confines of home (Kyllo v US) No Expectation of Privacy "open fields do not provide setting for intimate activities that amendment shelters"(Oliver v US) Business Associates not given same protection of house as overnight guests (Minnesota v Carter) Curbside Trash (CA v Greenwood) Justification of Search Probable Cause- Standard for Search and Arrest Warrantless search then police make evaluation of probable cause A reasonable person conclude that particular individual has committed a crime/or about to, or that specific items related will be found. Trustworthy hearsay (must be demonstrated in court) or personal observations (Gates) Informant needs to be reliable and credible. Balanced assessment of relative weights of all various indicia of reliability of tip Draper Test: basis of knowledge prong Probability not technical, not a neat set of legal rules Based on specific facts not mere suspicion Flight alone is not enough for probable cause; just a factor. High crime area is only a factor in establishing probable cause Cannot hold someone without hearing of probable cause (Gerstein and Dunaway) Reasonable Suspicion - "Stop and Frisk" interest of effective crime prevention Brief detainment/questioning and frisk for weapons Specific and articulable facts to reasonable suspicion that crime is about to occur. Informant can provide "indicia of reliability" (Adam v Williams) For search- armed and dangerous only What Constitutes a Stop? "when officer of physical force or authority restrained liberty of citizen" "if a reasonable person would have believed that he was not free to leave" Terry stop must last no longer than is necessary to effectuate the purpose of the stop. Although rigid time frame for Terry Stop (US v Sharpe) Stop cannot go beyond what is needed to find weapons. Must immediately be aware of contraband feel and touch is okay (Minn v Dickerson) If nature and detention arise to arrest then probable cause must be shown Expansion of Terry Stops Automobile Officer may stop under articulate reasonable suspicion person violated law (Hensley) or traffic violation. (Whren) Frisk if suspected of weapons (Moore) May also require person to identify themselves (Hibel) Home Protective Sweep only long enough to resolve danger- only where persons may be found (Maryland v Buie) Administrative Searches (impounds (Oppermann), DUI checkpoints (Sitz), drug screening, inspections) Balance Test Importance of administrative object to public interest v 1. scope of intrusion 2. discretion 3. expectation of privacy Searches conducted to neutral standardized criteria and procedures. Probable cause is not needed Search and Arrest Warrants 1. Issued by neutral magistrate 2. Probable cause 3. Warrant must describe place, items, person to be searched/seized Execution of Warrant Criminal Pro Final Outline Page 12

Execution of Warrant Police can conduct warranted unannounced entry if circumstances are necessary. Knock and Announce not needed (Wilson v Arkansas)

Unreasonable to search entire house with arrest warrant, barring exigent circumstances (Chimel v CA)
Mere evidence collected during valid search admissible (warden v Hayden) Warrantless Searches and Seizures Exceptions that require probable cause: exigent circumstances Compelling urgency, warrant was risky 1. Probable cause that suspect had committed crime (Watson) Hot Pursuit Doctrine Officers must be in pursuit of person and have probable cause they have committed a crime and are in a particular dwelling. Probable cause can be based on witnesses. Immediate and continuous pursuit 1. Destruction of evidence 2. Escape of suspect 3. Danger to police or others Exceptions that require probable cause: Search Incident to an Arrest Permits search of person and area immediately surrounding object of arrest (Edwards) 1. Arrest must be lawful (probable cause) Exceptions require probable cause: Automobile search and containers Warrantless search of car as long as officer has probable cause to believe there was contraband in vehicle. (Acevedo) Less privacy in car and searches are permitted of containers/entire car (Chambers v Maroney) Exceptions that require reasonable suspicion: stop and frisk Exceptions that require administrative justification: admin/inventory searches Custodial administrative search at station (Lafayette) Federal Statutes such as railway which protect public interest (Skinner) Area code enforcement on consent (Camera v SF) Warrantless intrusion with no justification: Consent Doctrine Rule: Would a reasonable person decline the officer's request? Co-occupant may consent (Matlock)

Police in good faith may get consent by resident with no real authority to allow search (Rodriguez)
If consent is disputed by co-occupant then no search (Georgia v Randolph) Plain View Doctrine Does not permit search (Az v Hicks), only seizure of something already discovered. Does not provide justification of entry 1. Original intrusion lawful 2. Observed while officer is in permissible scope of intrusion 3. Immediately apparent item is contraband *Inadvertent Discovery not criteria (Horton v CA) Schools Only reasonable suspicion needed to search at public schools (NJ v TLO) Exclusionary Rule (Mapp) Fruit of the Poisonous Tree Doctrine Evidence directly and indirectly derived from violation is excluded as well Test: whether secondary evidence was discovered by exploitation of initial illegality or instead by means sufficiently attenuated to be purged of the original taint. (Wong Sung) 1. Time period between illegality and obtaining 2. Occurrence of intervening events 3. Flagrancy of initial illegality Factors Helping: Miranda, Free Will, Other intervening factors <Evidence> <Time Lapse) Exceptions of Exclusionary Rule

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If obtained from independent source and not solely on exploitation, then evidence will not be suppressed. (Kastigar) Inevitable Discovery Rule (Nix v Williams) Limitations of Exclusionary Rule Standing: person must have had rights violated in order to exclude evidence. (Rakas)

Exclusionary Rule irrelevant in grand jury proceedings and habeas corpus
Good Faith Exception: faulty warrants: officers reliance on warrant must be objectively reasonable. (Herring) Impeachment Exception: evidence unlawfully obtained is admissible when being used to impeach. (Ventris) Harmless Error: if conviction would have resulted due to overwhelming evidence, verdict not overturned. 5th amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1] Voluntariness Standard Balance: legitimate interest of police in obtaining evidence and protecting individual Non-voluntary statement not admissible in court Length of detention, deception. Generally must be product of overreaching by police 1. Police subjected suspect to coercive conduct 2. Conduct was sufficient to overcome will of accused Factors: police conduct, vulnerability of defendant (child, mentally challenged, duress) Threats, Coercion, deception and trickery alone do not constitute threshold. The totality of circumstances as a whole must be taken into consideration. Miranda Approach (1966) Right to remain silent and anything he says may be used against him in court. Right to have attorney present during questioning and if he cannot afford one, appointed to him. If individual exercises right to silence or attorney, interrogation must cease and cannot be assumed guilt (Doyle) Post Miranda if statement is read prosecutor has to meet "heavy burden" that defendant knowingly and intelligently waived right. Only active in context of custodial interrogation." restrain of freedom like to a formal arrest" would a reasonable person in suspect's position believed himself to be in custody and deprived of freedom? Interrogation Voluntary statements not covered by doctrine Physical evidence obtained from un-Mirandized voluntary statements is admissible, although the statements, themselves may not be. (Patane) Functional equivalent of questioning (reasonably likely to elicit an incriminating response) (Innis/Brewer) Must have essential ingredient of a police dominated atmosphere. (Perkins/Mathiason) Routine background questions not interrogation (Muniz) Cannot use condition of termination for public employees as coercion (Garrity) Waiver of Miranda Rights Defendant must unambiguously invoke rights and silence is implied waiver (Berghuis) Express or implied waiver of rights through conduct of suspect. (Montejo) "knowingly intelligently, and voluntarily waived his privilege. (Elstad) Use of Statements for Impeachment Illegally obtained statements can be used against defendant in impeachment (Harris) Suppression of Fruits of a Statement Obtained in violation of Miranda Evidence derived from statement (physical or testimonial) will be admissible as long as statement was not coerced and involuntary (Elstad)

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6th amendment Right to Counsel (Applies to State Powell) In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. Effective legal counsel: Defendant must prove 1. deficient 2. and deficiency prejudiced the defense. Standard is of reasonable effective assistance. (Strickland) Speedy Trial is relative to the totality of circumstances (Barker v Wingo) Cross Examination of Witnesses is a right (Crawford/Pointer) Jury Selection cannot discriminate against race or gender without specific reason (Batson/JEB/McCollum) First Appeal only (Douglas/Moffit) Massiah Doctrine: Government cannot deliberately elicit incriminating statements after right to counsel has been invoked (Brewer v Williams) 1. Government deliberately elicited incriminating statements from accused in absence of counsel. And 2. after initiation of judicial proceedings. (Kirby) Government must take some deliberate action to elicit a confession. Much lower bar for sixth violation than Miranda. Waiver Initiation of further communication after waiver of counsel. Other Investigatory Procedures Eyewitness Identification: physical attributes on public display are not protected (facial appearance, hand writing (Anderson) , voice) (dionisio) Totality of circumstances Show-up (no attorney needed) but illegal if 1. Unnecessarily suggestive 2. likely to lead to mistaken identification (Kirby) Bodily Intrusions Weigh intrusiveness and risks against governments need for evidence. (Winston v Lee) Under 5th, evidence needs to be testimonial. (Muniz) Rights of Accused  Double jeopardy bars litigation between the same parties of issues actually determined at a previous trial. (Ashe v Swensen)  Double Jeopardy only attaches after a judgment has been rendered. (Somverville)  If defendant is unruly he can be placed in contempt or thrown out of court (Allen)  Where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause f or his failure to raise the claim in accordance with applicable state procedures. (Reed v Ross)  Criminal Trials open to public/media (Richmond Newspapers)  The state courts must instruct juries under due process to find the defendant beyond a reasonable doubt guilty (Victor)  False testimony may be a factor in sentencing. (Grayson) Evidence To overturn conviction; a reasonable probability conviction would have been different if material evidence have been disclosed. (Agurs) If evidence is destroyed/lost defendant must prove acted on bad faith (Youngblood) Testimony at suppression hearing may not be admitted against defendant at trial. (Simmons) Plea Bargaining If guilty plea is voluntary it is valid (Brady/Alford) 8th amendment No excessive Bail (Stack v Boyle)

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