CRIMINAL LAW

PROPERTY CRIMES
Crime Elements Defenses
Larceny o taking the property with
(1) taking (exercise of control adverse to the owner) the intent to return it
o don’t have to remove the property from the premises
(2) asportation (some movement)
o don’t need much movement
o usually if D asports the property, there is also a completed taking
o sometimes there is no taking b/c despite asportation D has not exercised real control
(3) corporal personal property of another
o D need only take property from someone with a greater right to possession than D
o TIP: you can steal your own property (ie. if there is a mechanic’s lien on your car because you did not
pay and you go take it from the shop, this is larceny)
(4) from the possession of another
(5) wrongfully
o without permission OR
o with permission obtained by deception (larceny by trick)
(6) with intent to permanently deprive
o at the time of the taking, D must have intended to either:
 permanently keep the property himself OR
 do something with the property that would create at least a high risk that the owner would
never get the property back
o Continuing Trespass Rule:
 This is an exception to the rule that the intent to deprive must be at the time of the taking
 If D wrongfully takes property of another, forming the intent to permanently deprive after
the taking an during possession is sufficient
o TIP: taking with intent to return it CANNOT be larceny
o TIP: what controls is what D actually intended to do with the property at the time of the taking, NOT
what actually happened to it

Distinction between larceny and embezzlement: a person cannot commit larceny if he has possession of
property because that would be embezzlement. A person having custody of property can commit larceny (ie.
usually employees only have custody, not possession of employer’s property)

Embezzlement (1) Possession of property under a trust arrangement o intending to return or

o Possession requires extensive and discretionary control replace the property is
(2) Conversion of that property NOT a defense
 Use of it contrary to the terms of the trust agreement
(3) With intent to defraud
o Intent to replace or return the property is NOT a defense

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False Pretenses (1) obtaining title to property from another o It was a future fact
(2) by means of a misrepresentation of: o It was a mere unkept
o past fact OR promise
o present fact o It was not an affirmative
o NOT a future fact representation
o NOT an unkept promise. However, if a person did not intend a promise at the time of making the
promise, then this is a misrepresentation
o Usually an affirmative misrepresentation is required, but failure to correct a misunderstanding is
sufficient if D created the misunderstanding
(3) With intent to defraud
Receiving Stolen (1) receiving (taking possession)  the property was not
Property  the property must actually be stolen when received by D or else it is not a crime actually stolen at the time
 TIP: if the property was once stolen, but was not stolen at the time of taking possession, this is not a D received it
crime
 TIP: once police have received the stolen property it loses its stolen status, so you will not be liable
(2) of property acquired by larceny (OR some other property crime)
(3) knowing the property is stolen
- need actual or constructive knowledge
- willful blindness is no excuse
(4) with intent to permanently deprive the owner
Theft (Statutory) A person commits theft if he unlawfully exercises control over the property of another without effective
permission and with the intent to deprive another of that property
This statutory crime covers all of the offenses mentioned above.
COMBINATION PROPERTY AND PERSONAL CRIMES
Robbery (1) larceny in which the property is taken by: o No force closely related to
(2) force (violence) OR the taking of the property
o force must be to obtain property OR to prevent victim from immediately regaining it o There no threat that would
o TIP: just taking property without a person knowing of it or without resistance is NOT force cause apprehension of
o TIP: make sure that the force is to obtain the property or prevent victim from immediately retaking it immediate harm in a
and not for some other reason; the force must be closely related to the taking of the property reasonable person
(3) threats (intimidation)
o must be of immediate physical harm
o victim must be put in fear of harm
o threats must be such as would cause apprehension of immediate harm in a reasonable person
Number of Robberies in a Situation:
o only one robbery for each person from whom property is taken
o NOT one robbery for each item taken

Extortion (1) obtaining property

(blackmail) (2) by means of other threats such as:
o do something other than physical harm OR
o do physical, but not imminent harm

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 CRIMES AGAINST THE HABITATION
Burglary (1) entry
o entry can be by any part of the body or instrument to be used for the crime inside
(2) by breaking
o only requires some force
o can be committed by entering a room of a dwelling; it does not have to be from outside; however,
merely going into a piece of furniture will not count because this is not a part of a structure
(3) of the dwelling of someone else
o make sure that it is a place used as a sleeping place and not just a home where no one lives
(4) during the night
(5) with the intent to commit a felony inside the structure
o the crime does not have to actually be committed, just need intent to commit felony at the time of
entry
o Mistaken belief that one’s intended conduct will be a felony is NOT intent to commit a felony
o Prosecution must prove:
(1) D entered with intent to commit certain acts AND
(2) Those acts, if committed would be a felony
o DO NOT have to prove that D knew that law that made these acts a felony

Statutory Changes:
o some expand the places covered
o some eliminate the need for a breaking
o some eliminate the requirement that it be at night
o some expand intent to cover intent to commit misdemeanors
Arson (1) malicious
o awareness of a high risk is enough to make burning malicious
(2) burning
o some physical damage, by fire, to a part of the structure (NOT furniture in the structure)
o the place does not have to be burned all the way down; it will be arson even if the burn is the size of a
thumbnail
o blackened by soot is NOT enough
(3) of another’s dwelling
- cannot be your own house

CRIMINAL HOMICIDE
Causation Issues (1) factual causation: but for the acts of D, victim would not have died when and as he actually did die
 a D who simply speeds up the death of a dying victim does factually cause the victim’s death
(2) year and one day rule: victim must die within a year and one day from the infliction of the fatal injury
(3) proximate causation
o Rule: proximate causation exists if the victim’s death naturally results from D’s actions, even if this
occurs in an unexpected manner, UNLESS the events are extremely unusual
o Rule: Proximate causation is lacking if a superseding factors is interjected into the chain of

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 causation. Such a factor must be:
 Independent of the D’s actions AND
 Unforeseeable AND
 The sole immediate cause of victim’s death
 An intervening event CANNOT break the chain of proximate causation if it only
becomes a contributing cause of death
(4) If no causation: D is often guilty of attempted murder

Murder (1) causing death of a victim  no causation

(2) with malice aforethought  Voluntary intoxication can
 intent to kill OR disprove premeditation,
 intent to cause serious bodily injury OR but NOT malice
 awareness of extremely high risk that death will result OR aforethought
o aka abandon and malignant heart doctrine or depraved heart murder
 intent to commit felony
o aka felony murder
o accidental deaths caused during commission of a felony are murder
o Death must have been foreseeable OR felony was dangerous as committed
 Dangerous felonies:
 Burglary, arson, rape, robbery, kidnapping
o All cofelons are guilty of felony murder, if the death was foreseeable to them
 TIP: a death during a felony may be foreseeable to some of the felons but not to
others
o Merger rule: felony murder CANNOT be based on felony assault or battery causing death
of victim because those crimes merge into the death of the victim
o Many courts will not apply the felony murder if the fatal shot was not fired by one of the
felons
o Courts are most reluctant to apply felony murder where the person killed is one of the felons
o TIP: if it does not fall under the felony murder rule, it may fall under depraved heart murder
Voluntary (1) causing death of a victim  no causation
Manslaughter (2) with malice aforethought  Voluntary intoxication can
(3) after objectively reasonable provocation, which caused D to kill victim disprove premeditation,
 some provocations are insufficient as a matter of law (mere words) but NOT malice
 MPC: you look at the personal sensitivities of the accused (subjective) aforethought
(4) D acted before an objectively sufficient cooling period elapsed

Involuntary (1) causing death of a victim  no causation

Manslaughter (2) by acting with criminal negligence OR
 requires more negligence than civil liability
(3) while committing a misdemeanor
Liability for Rule: criminal liability can sometimes rest upon a person’s failure to act  no legal duty to act
Omissions Requirements:

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 (1) the defendant has a legal duty to act, which can arise from:
 criminal law
 tort law (ie. if D created V’s peril)
 contract law
 statute
 employer/employee
 family relationship (includes close intimate friendships)
 any other body of law
(2) D was aware of the facts giving rise to the duty to act
(3) Performing the duty was possible
- TIP: if D was physically incapable of rendering assistance, then there is no liability
(4) Necessary intent

Degrees of Murder Second Degree Murder: killings with malice aforethought Voluntary intoxication can
(Statutory First Degree Murder: certain felony murders and premeditated (requires conscious deliberation) killings disprove premeditation, but
Provisions) o a provoking incident, even if not enough to reduce the killing to voluntary manslaughter, may NOT malice aforethought
show absence of premeditation
OTHER CRIMES AGAINST THE PERSON
Rape (1) sexual intercourse  consent
(2) by a male
(3) with a woman not his spouse
(4) without woman’s effective consent
o fraud will render a woman’s consent ineffective only if the fraud goes to the nature of the act
o TIP: a man promising to marry a woman will not defeat consent if he does not marry her
Kidnapping (1) Confining or restraining a person OR
(2) Moving a person
(3) without authority of law

Rule: where the victim of a crime such as robbery or rape is confined or moved during the crime, many courts
hold that kidnapping does not also occur unless the confinement or movement increases the risk of harm to the
victim and thus is not merely incidental to the other crime
PARTIES TO A CRIME
Aiding and Rule: all persons are guilty of a crime who: o the participant is a
Abetting: a) commit the act constituting the crime (primary actors) member of the class of
Accomplice b) participate in it (aiders and abettors or accomplices) either before or during its commission persons protected by the
Liability c) use an innocent agent to commit it crime (ie. a woman in a
Rule: an aider or abettor can be convicted even if the primary actor is acquited rape)
Elements of liability as aider and abettor or accomplice: o the crime inherently
1) participation in the offense before or during its commission involves several types of
o encouraging OR participants and only
o physically assisting the primary actors some are made liable (ie.
o presence pursuant to an agreement to aid is sufficient to show participation in a drug sale case, the
o mere presence is NOT enough buyer is not an aider and
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 2) with the required intent abettor to the sale
o Requires:
i. Knowing the primary actor is going to commit the offense AND
ii. Intending to encourage or assist him in doing so
o A person who actually assists or encourages another in committing a crime is
most likely to have the intent to assist or encourage if the evidence shows a
motive to want the primary actor to successfully commit the crime (ie. charging
a higher rate to someone who is committing a crime)
PREPARATION CRIMES
Attempt Rule: it is a crime to attempt to commit an offense o abandonment is NOT a defense
1) a person must go far enough ie. make a substantial step o impossibility of success
towards commission of the crime o MPC has done away with impossibility defense, but common law
 preparation for a crime is NOT enough has not
2) with intent to commit the crime o legal impossibility is a defense
 need (1) intent to complete the act constituting the  D’s conduct would not constitute a crime if completed,
attempted crime AND (2) any intent necessary for the but D thinks it would be a crime because D is mistaken
completed crime about the criminal law
o factual impossibility is NOT a defense
Merger: it merges into the completed crime  mistake about ability: it will be impossible for D to (a)
perform the conduct she has set out to perform OR (b)
cause the result that she has set out to cause, but D
mistakenly believes that she will be successful
 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
circumstances were as D believed them to be, the
intended conduct would constitute a crime
o impossibility involves the mistaken belief by the defendants that
the attempts will be successful (don’t confuse with mistake)
o this defense applies ONLY in attempt prosecutions
Solicitation 1) Requesting someone to commit an offense - Renunciation is NOT a defense under common law, but it is a defense
 It is not required that the solicitation be successful under the MPC
 Solicitation is a crime even if it is rejected
2) With intent that they commit it

Merger: it merges into the completed crime and merges into

conspiracy
Conspiracy 1) Entering into an agreement to commit crime  Withdrawal
- Saying “lets have some fun” is NOT a conspiracy  NOT a defense under common law
2) Intent that the crime be committed  It is a defense under MPC if you thwart the success of the
3) Statutes: often require an overt act in furtherance by one conspiratorial endeavor
member of the group  No meeting of the mind
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  Acquittal
DOES NOT merge into the completed offense  Only applies if ALL members of the alleged
conspiracy have been acquitted or its equivalent
 Equivalents of acquittal
o Not guilty by reason of insanity
o Person did not intend to go through with
the crime (ie. undercover police officer)
 Impossibility is NOT a defense
Co-conspirator Rule: all members of a criminal conspiracy are guilty of  Withdrawal
Rule crimes committed by other members of that conspiracy if those o Will NOT be a defense to the crime of conspiracy
crimes are: o Is a defense to a crime for which D is liable under the co-
 Committed in furtherance of the scheme AND conspirator rule
 A foreseeable result of the scheme o Requirements:
 Fully communicated to ALL other members of the
agreement AND
 Before the crime is committed
DEFENSES
Ignorance or Elements:
Mistake of Fact 1) The mistake shows D lacked the intent required for the crime AND
2) The mistake was objectively reasonable
o Exception: if the mistake shows absence of a necessary specific intent, it need NOT be reasonable
o Specific Intent Crimes:
 Larceny, other property crimes
 Burglary
 Attempt
 Conspiracy
 Any offense defined as doing something “with intent to”
 Arson and rape are NOT specific intent crimes
Modern Statute Analysis: mistake of fact requires acquittal whenever it shows the lack of whatever mental state is required for the crime
Criminal Intent Crimes generally require intent (mens rea)
Requirements:
 D must have been aware of the facts that constitute the crime
 D need not know anything about the law

Exceptions for strict liability crimes

 These crimes do not require awareness of all of the facts
 Statutory rape: D does not have to have knowledge of the victim’s age
 Bigamy: D need not know at the time of second marriage that he still has a living spouse
 Regulatory crimes

Modern Statute Terminology for Mens Rea:

 Purpose: a conscious desire
 Knowledge: awareness of a practical certainty

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  Recklessness: awareness of a substantial risk
 Negligence: reasonable person would have been aware of a substantial risk
 A modern crime usually requires that the D have acted at least recklessly concerning all physical elements of the offense
 If a statute does not mention the mens rea required, us reckless standard

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 the person actually harmed
Ignorance or Rule: ignorance that the criminal law makes one’s conduct a crime is NOT a defense
Mistake of Law Exception (it will be a defense) requirements:
1) The belief was objectively reasonable AND
2) D relied upon:
 A statute later held invalid
 A judicial decision later overruled
 An official interpretation of the law by a public official
 NOT a defense if relied on advice of counsel
Statutes:
 occasionally the mens rea of a crime requires knowledge that the law is being violated. If this is the case, advice of counsel may show
the absence of mens rea
 if the crime requires awareness of the law, then even unreasonable ignorance or mistake that shows lack of awareness will require
acquittal
Insanity McNaughter Rule:
 D is entitled to acquittal only if the facts show at the time of the crime:
1) He had a serious mental illness 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 his act was wrong
 Analysis: Assume that the situation was as D perceived it and ask, under those circumstances, would he have been legally entitled to do what
he did. If yes, then he is entitled to acquittal
 Loss of control is not a basis for an insanity defense under this rule

Model Penal Code:

 D is not guilty by reason of insanity if, as the result of serious mental illness or defect, he either:
o Has lost the substantial capacity to understand his act or its wrongfulness OR
o Has lost the substantial capacity to conform his conduct to the law’s requirement
o Loss of control is a basis for the insanity defense

Irresistible Impulse Version of Insanity: loss of control is a basis for the insanity defense

Unconsciousness Rule: if criminal liability is based upon a voluntary act by D, then if D was unconscious, her behavior cannot constitute the necessary voluntary
act
Example:
- murdering someone when you are sleepwalking
Intoxication Involuntary Intoxication:
- either D did not know substance was intoxicating OR D consumed the substance under duress

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 - Use the McNaughten test because involuntary intoxication is treated as a mental illness

Voluntary Intoxication:
- D will only be acquitted if the crime requires proof of a specific intent and the intoxication shows he lacked that intent
- TIP: it may be a defense to attempt to commit the crime, but not to the crime charged if that crime does not require a specific intent (ie. no
defense to arson, but is a defense to attempted arson
- Homicide analysis:
o Voluntary intoxication can disprove premeditation, but NOT malice aforethought
o Will never reduce murder to manslaughter but it may reverse 1st degree murder to 2d degree murder if it negates premeditation,
deliberation or intent
- Modern Statutory Analysis: voluntary intoxication requires acquittal if:
o Crime requires mental state higher than recklessness AND
o Intoxication shows lack of this mental state
o There will be no defense if recklessness is sufficient for liability
- Minority View: voluntary intoxication is completely irrelevant to criminal liability
Entrapment Majority Rule:
- Entrapment occurs only if:
1) D was not predisposed to commit crimes like this AND
2) Police officers created the intent to commit the offense in her mind (subjective test)

Minority Objective Rule:

- entrapment occurs if police activity would cause a reasonable and unpredisposed person to form the intent to commit the crime (objective
test)
Necessity or Choice Requirements:
of Lesser Evils 1) D believed that committing the crime would prevent an imminently threatened harm AND
2) D believed that this threatened harm would be greater than the harm that would result from commission of the crime AND
3) These beliefs were objectively reasonable

NOT a defense if:

- D wrongfully created the situation making the choice necessary OR
- D killed another to avoid his own death

Random Rule: a 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 threat that if he did not do so, the threatening person would do
immediate AND physical harm to D OR a third person
Exception: duress is NOT a defense to a crime that consists of an intentional killing
Self Defense Requirements for the Defense:
1) D believed that he was in imminent danger of being harmed by another AND
2) D believed that the force he used was necessary to prevent the threatened harm AND
3) These beliefs were objectively reasonable

Requirements if Use of Deadly Force:

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 1) D reasonably believed that she was threatened with immediate death OR serious bodily injury AND
2) Deadly force used was necessary to prevent harm to her

Minority Rule Need to Retreat:

- any opportunity to retreat must be taken before using deadly force
- applies only if retreat was possible with complete safety
- there is no duty to retreat when attacked in one’s own home

General Rule Need to retreat: opportunity to retreat is a factor to consider in determining whether deadly force was reasonable

Aggressor Rules:
- an aggressor who starts a fight cannot use force in self defense during the fight
- an 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 in Homicide Cases:

- A D charged with murder who actually but, unreasonably believed killing was necessary in self defense is NOT entitled to acquittal, but
should be convicted of manslaughter rather than murder
Defense of Other Requirements:
Persons 1) D believed that another person was threatened with imminent unlawful physical harm by a third person (can be a stranger) AND
- it must reasonably appear to D that person she aided was in the right
2) D believed that the force she used was necessary to prevent the harm AND
3) Those beliefs were objectively reasonable

Defense of 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 property
Limits:
- Only non-deadly force can be used to defend property
- Force can only be used to prevent interference NOT to regain property EXCEPT in immediate pursuit

General Intent Crimes Specific Intent Crimes Strict Liability Crimes

Battery Larceny, other property crimes Bigamy
Arson Burglary Statutory rape
Rape Attempt Incest
Involuntary manslaughter Conspiracy Attempting to board an aircraft with a weapon
Indecent exposure Any offense defined as doing something “with Public welfare offenses
Depraved heart murder intent to”
Arson and rape are NOT specific intent crimes

voluntary intoxication is NO defense

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Random Tips:
- any time you can eliminate an element, choose that answer rather than a defense
- an epileptic seizure would be a defense, but you can not get into a car knowing that you have epileptic fits
- a brain tumor “at times” depriving ability to control is not enough; it has to be at that time
- res judicata and collateral estoppel are civil terms, so don’t pick them as an answer in criminal law
- a victim cannot consent to a crime unless it is rape
- you can not attempt to commit and unintentional murder

CRIMINAL PROCEDURE
PRETRIAL PROCEDURE
Constitutional ∆’s DP rights are violated  Prosecution fails to disclose exculpatory evidence that is in its possession, meaning possession of:
Duty to Disclose under Brady Rules if: o The trial prosecutor,
Exculpatory Evid. o Another prosecutor or
o Police; and
 This information is material which means that if it had been disclosed there is a reasonable probability that
the outcome of the case would have been different.
o This duty does NOT turn on whether the ∆ asks for it or not
 Evidence that impeaches a prosecution W IS exculpatory
Right to Counsel, Summary  An indigent ∆ sometimes has a right to an appointed atty
Self-Repres. And o A ∆ charged with a felony always has such a right
Expert Assistance o A ∆ charged with a misdemeanor need not be provided an atty if NO jail time is imposed upon
conviction
 A ∆ has a 6th A right to represent oneself
If a ∆ refuses an atty, what  TJ must make sufficient inquiries of Sims on record to assure that he is competent to engage in self-
must the TJ do to preserve representation
∆’s right  ∆ doesn’t have to know the law…he just has to understand the disadvantages and risks of self-
representation
Does fact that the ∆ was able  General rule is that the TJ may NOT consider whether a ∆ has posted or is capable of posting bail.
to pay bail affect whether or  The exception is that this may be considered as it reflects the ∆’s financial condition as measured by proper
not he is indigent at trial? considerations such as income, property owned, dependents
Right to Effective Standard for Determining  6th A right to counsel is violated if both:
Representation Ineffective Assistance of o the lawyer’s actions were both beyond the bounds of professional competence and not simply
Counsel
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 tactical decisions and
o there is a reasonable probability that had counsel been effective the results of the proceeding
would have been different
Representation of Counsel is  Counsel fails to conduct adequate investigation of facts or
not effective if  Fails to convey to the client an offer of a plea bargain
What if the ∆ cannot afford to  ∆ should file an Ake motion, invoking Ake v. Oklahoma holding that due process entitles an indigent ∆ to
hire an expert but expert is an appointment of an expert if
needed? o ∆ shows that the area of the expert’s expertise is likely to be a significant issue in the case
 ∆ can make this motion and showing ex parte so as not to reveal thoughts to the state

DOUBLE JEOPARDY
Double Jeopardy Basic Rules  Once ∆ placed in jeopardy for an offense, the ∆ can never again be tried for the same offense
 The second prosecution is not barred if first ended before jeopardy attached
 Acquittals are always final (no second trial permitted)
o Any finding that evidence is “insufficient” made by trial or appellate court is an acquittal
o Conviction of a lesser included offense is an implied acquittal of charged crime
Exceptions for DJ Rule  Second trial is permitted if:
o The first proceeding ended in a mistrial declared for “manifest necessity” (ie hung jury)
o The first proceeding ended in mistrial declared on motion for the ∆
o The first trial ended in conviction reversed on appeal b/c of procedural error
o First trial ended in conviction reversed on appeal b/c verdict was “against the weight of the
evidence”
o Second prosecution is by a different sovereign jurisdiction
When does jeopardy attach?  Under federal law,
o Jury trial: when jury is sworn
o Bench trial: when first W is sworn
Successive What happens if successive  Successive prosecutions for Different offenses are barred only if one offense is a lesser included offense of
Prosecutions/Diff prosecutions for different the other, because only then are the two offenses the same
Offenses offenses 
Test for determining lesser  Compare elements of the two crimes
included offense  If each element contains at least one element not contained in the other then neither is a lesser included
offense of the other and successive prosecutions are permitted
 Otherwise one is lesser included offense of the other and successive prosecutions are barred
o Ex: Murder and robbery are NOT lesser included offenses b/c each has an element that the other
does not. Murder requires death & robbery requires taking of property
Collateral Estoppel Rule  Acquittal of one offense bars second prosecution for different but related offense if ∆ shows both
o The precise factual basis for acquittal in the first proceeding and
o That fact also controls in the second prosecution
 Only applies if there is an acquittal in the first trial
One Proceeding/ What happens if successive  Convictions for several related offenses in one proceeding are barred only if the legislature did not intend to
Convictions for prosecutions for related authorize convictions for all

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 Several Offenses offenses?  If one offense is a lesser included offense of another, it is presumed (rebuttably) that the legislature did not
intend convictions for both
Separate Separate Sovereign Govts  Multiple prosecutions and/or convictions permitted if done by separate sovereign governments
Sovereignties
What constitutes separate  State and federal govt = YES
sovereign governments?  Different states = YES
 State and city or county = NO

PRIVILEGE AGAINST SELF INCRIMINATION

Priv against self-  Authorities cannot compel a person to engage in self-incriminating “Testimonial” behavior
incrimination
Grant of Immunity What are effects of immunity  If a person is granted effective immunity, the privilege of self-incrimination no longer applies and the
Removes person can be compelled to answer
Protection
Types of Immunity  Use immunity- gives the person no protection from prosecution. But if she is prosecuted, the government
cannot use against her as evidence her testimony or any evidence that the government obtained by using her
testimony or information in the testimony
o If use immunity is granted, can be compelled to testify (no right to refuse)
 Transactional immunity- better option for W. Gives the person immunity from prosecution for any offense
arising out of the transaction about which she testifies under the grant of immunity.
Protection limited to  A person can be compelled to engage in non-testimonial self-incriminating behavior
“Testimonial” Behavior o Non-testimonial behavior =breath and blood samples, walking the line, compelled to stand in
lineup, speak during lineup so W can determine if your voice matches the perpetrator’s, standing
and walking so W can observe a limp
 “Testimonial” behavior is an intentional communication of one’s thoughts
o When police officer or the prosecutor asks you an incriminating Q
o If in a civil trial, a W is asked a Q that could incriminate him/her

SEARCH AND SEIZURE

What constitutes a What if evidence is obtained  Evidence obtained as a result of an unreasonable search or seizure cannot be used to prove a criminal ∆’s
search? by unreasonable search? guilt
What is a search?  Any official action that intrudes upon a person’s expectation of privacy
What conduct is NOT a  Aerial surveillance of fenced yard
search  Examination fo trash left in back yard
 Determining numbers dialed from residential home (pen register)
 Using a beeper to follow a car on public streets
 Having a dog sniff luggage in an airport
What does constitute a search  Rigorous squeezing of luggage in bus overhead rack (not just light touching)
 Thermal imaging scan of residence
Plain View  Officers merely exercising their right to engage in plain view and do not search if they
o Reach a location without violating the 14th A and
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 o Simply look at something in open field
 Using a flashlight doesn’t make it a search
Open fields  Officers who go upon an unoccupied or undeveloped area of land not part of the curtilage of a dwelling do
not search (even if they are trespassing)
 Curtilage is the area surrounding and used in connection with a residence
 Open fields doesn’t have to be open or even a field
Reasonableness of When is a search reasonable?  Must be pursuant to a valid search warrant (but exceptions) AND
Searches  Must be based on probable cause (facts from which a reasonable person would conclude that there is a fair
probability that seizable items would be found in the premises)
Items subject to seizure  Contraband items (something illegal to possess…drugs)
 Fruits of crime (ie stolen jewelry)
 Instruments of a crime (ie weapon)
 Evidence that a crime was committed or that a particular person committed it (mere evidence
4th A Search Search Warrant  Judicial order authorizing search and seizure
warrant law  Warrant must be issued on information constituting probable cause: affidavit must set out facts from which
issuing magistrate can make independent jdmt that probable cause exists
What must warrant contain?  Must describe specifically both:
o Place to be searched and
o Items to be searched for and seized
Knock and Announce Rule  Before entering premises, officers must “knock and announce” and give occupants opt to admit the officers
 No knock entry is permitted if officers have “reasonable suspicion” that occupants would
o Resist the officers by using force or
o Destroy or remove items for which warrant issued
Search is limited to  Place described in the warrant and
 Within that place, those locations where described items might reasonably be expected to be located
 Can seize un-described items that are in plain view
Tip provided by informant  In determining if a warrant is supported by PC (when it is based on an informant’s tip), it will be helped by
the following facts indicating:
o Informant was in general sense reliable (cops have used him before and his info was accurate) and
o Informant had reliable source for this specific information (informant personally heard the
information from the perpetrator himself)
Warrantless Situations where Warrant is  Consent searches
Searches: 4th A not required if there is a  Searches of Automobiles
search o Vehicle exception
o Search incident to an arrest
o Inventory inspection
 Exigent circumstances
 Search incident to arrest
Consent Searches  Consent searches neither require a warrant nor PC
 Effectiveness of consent:
o Consent must be voluntary

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 o Consent must be from either
 Someone with a general right of access to the premises (actual authority to give consent)
or
 Someone reasonably believed by officers to have such access (apparent authority)
 If Joint Occupants
o Officers need consent from only one of several joint occupants
o If joint occupant at whom search is directed is physically present and actively objecting, consent
from other joint occupant is not effective
 If the officers tell person what they are looking for and get consent, then consent searches extend to
anywhere a reasonable person would have understood the thing to be located (ie if consent to search for
drugs, can look anywhere where drugs can be found)
Vehicle Exception  Moving vehicles and those parked in public places can be searched without a warrant
 BUT probable cause is necessary (ie don’t need warrant but need PC)
 Search can extend to any palce where items might be found
Search of Vehicle Incident to  Custodial arrest of person in a vehicle (or immediately after getting out) permits as an incident to that arrest:
an Arrest o Search of the passenger compartment (including the glove box)- this is automatic
o BUT does not extend to the trunk
Inventory Inspection  Properly seized or impounded vehicles may be administratively inventoried pursuant to standardized
procedures
Exigent Circumstances  A warrantless search is permitted if officers have both
o Reason to believe delaying the search to get a warrant would result in removal or destruction of the
items and
o Probable cause to believe seizable items will be found
Search Incident to an Arrest  Valid custodial arrest gives an automatic right to search 2 places:
o Person of the arrestee (which includes pockets, and things found on the person of the arrestee) and
o Area of possible reach
 If arrest is made inside premises
o Officers can automatically look in immediately adjoining places where other persons might be
concealed
o Protective “sweep” of the entire premises can be made only if officers have reasonable suspicion
that dangerous persons are present
Warrant required only if  If searching suspect’s own residence = need an arrest warrant (sufficient)
premises are entered to  But if searching other premises = need a search warrant to search for the person
search for suspect
Terry Doctrine Terry Stop  Detention not following valid arrest can often be justified as a Terry Stop
(Non-Arrest  Terry stop for investigation may be made on “reasonable suspicion”: Some objective basis for officer’s
Detentions) suspicion that suspect has committed, is committing, or is about to commit a crime
 But an anonymous tip is NOT enough if not adequately corroborated
Limits on field stops  Cannot be too long
 Suspect canot be extensively moved (meaning to the station house) and
 No automatic right to search
o But if PC arises during field stop, detention becomes a valid arrest and can search incident to an
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 arrest
Weapons search during  Can be made if officer has a reasonable fear for safety
Terry stop o Must initially be limited to a pat down and
o Permissible only to determine if suspect has a weapon (not to find contraband)
When is a suspect seized  If the officer physically restrains him or
 The officer makes a show of authority and the suspect stops/submits

LINEUP LAW
Fed. Line-up Rules  ∆ has 6th Amendment right to a lawyer present during lineup or showup if it is conducted after judicial
Constitutional proceedings have begun.
Limits o NOT triggered by the ∆’s arrest
o NO right to lawyer at showing of photographs
o Can be waived by the ∆
 ∆ has a due process right to have procedure not be extremely suggestive
o This applies even where right to counsel does not
o Standard: was the procedure so suggestive that it creates high likelihood that witness will
erroneously identify ∆ as the perpetrator
If W identifies ∆ at procedure  Prosecution cannot prove that identification in court but
conducted in violation of  W can still make “in court identification” of ∆ if prosecution establishes that this would have an
lineup rules: “independent source” (ie independent of the procedure)

CONFESSIONS
Confession Law in Confessions MAY be  Involuntary
General inadmissible on any number of  Product of delay in brining arrested ∆ before magistrate
grounds  Miranda violation
 6th A right to counsel violation
 product of an unlawful arrest
 TX ONLY- TX “Confession Statute”
Voluntariness When is a confession  If both
involuntary/inadmissible o result of coercion or threats or
o On “totality of the circumstances” officers’ misconduct “overcame the ∆’s will”
 ∆’s own mental impairments alone will not create involuntariness (like ∆ hears voices which told him to
confess)
 Some matters are only factors to consider in totality of the circumstances:
o Deception of the suspect by officers and
o Delay in presenting the suspect before a magistrate and
o Promise of a specific benefit made by person in authority
When do Miranda 5th A rights  Only if both:

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 apply? o Suspect is in custody (that is arrested or its equivalent)
 Suspect must perceive himself as not free to leave but also
 Miranda is not applicable during traffic stops, nonarrest Terry Stops, and
 Person is not in custody just because they were detained
o Suspect is subject to interrogation
 Doesn’t have to be a question for it to be interrogation
 Any action which officer should reasonably know is likely to result in an incriminating
response is equivalent of interrogation
If Miranda applies, what does  Right to have counsel present during questioning
it require?  Suspect must be given Miranda warnings:
o Right to remain silent
o Anything said may be used against the suspect
o The suspect has a right to have an atty present
o The suspect has a right to an appointed atty if unable to provide his own
 Interrogation can begin in absence of atty only if suspect first waives right to counsel
 No interrogation must occur if suspect indicates desire to remain silent
A confession to which  Miranda warnings were given and
Miranda applies is only  Suspect made knowing and voluntary waiver of
available if pros proves: o The right to an atty during questioning (unless one was present) and
o The right to remain silent
 **Under Miranda, no warnings or counsel are required if the confession is volunteered by the ∆ without
interrogation
Req if suspect invokes right to  If suspect invokes right to counsel, the officers may not reapproach the suspect unless an atty is present. If
counsel they reapproach the suspect, then no matter how voluntary the confession is, it is inadmissible
 Suspect must unambiguously request counsel (can’t just say, maybe I should talk to a lawyer)
What if right to counsel  If a suspect who has invoked right to counsel spontaneously (without being approached) seeks to discuss
invoked but suspect wants to the crime with officers, officers may seek a waiver of counsel
discuss crime?
What if suspect only invoked  If suspect only invokes the right to remain silent, the suspect may be re-approached if this is done carefully
right to remain silent
6th A right to What is 6th A right to counsel  In interrogation situations, the accused also has a 6th A right to counsel if judicial proceedings have begun
counsel and this provides more protection than Miranda does
o Miranda doesn’t apply if the person that the suspect is speaking to is a law enforcement officer
and the suspect doesn’t know that
 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 6th A right to counsel
When does the 6th A right to  ∆ has a right to counsel at questioning by undercover officer (Miranda doesn’t apply)
counsel become applicable  ∆ has a right to counsel at questioning even if not in custody
 Police violate the right to counsel if they interfere with counsel contacting a client undergoing questionng
Stmt obtained out Stmt Obtained out of state or  Stmt obtained in another state is admissible in TX prosecution if it was obtained in compliance
of state or by Fed by fed officers with the laws of that state
Officers  Stmt obtained by federal officer is admissible if obtained in compliance with the laws of the US
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EXCLUSIONARY RULE
Standing  ∆ must have standing to challenge the admissibility of evidence
 ∆’s objection must be based upon a violation of her underlying rights
 Search situations: this means that the search must have intruded upon the ∆’s own privacy
 Standing as applied to vehicles: person only a passenger in a vehicle when it is searched does not have
standing to challenge the search
 With regard to personal residence:
o Mere authorized presence in premises searched is NOT enough for standing
o Presence pursuant to a short and commercial stay is NOT enough
o Presence as part of an overnight guest IS enough
Fruit of Poisonous Tree Rule  If search is unreasonable all fruit (evidence obtained as a result of the search) must be excluded
 Miranda has no fuit of the poisonous tree rule
o So if there is confession and No Miranda warnings were given and then police use confession to
find the gun, the gun is admissible b/c Miranda has no fruit of the poisonous tree exception
Exceptions to Federal Constitutional  Attenuation of the Taint (also applies to TX)
Requirements of Exclusion o Applies when the taint between police illegality and discovery of the evidence is attenuated
 Good Faith
o Reasonable officer would believe that the actions taken were reasonable because of
 Warrant or
 Statute later held invalid
 Inevitable discovery
o Officers would inevitably have obtained the evidence if they had not illegally searched and
o They would have obtained the evidence constitutionally
Impeachment Exception  A ∆ who takes the W stand can be impeached by some otherwise inadmissible evidence
o Evidence obtained in violation of Miranda or in an unreasonable search can be used to impeach
o Involuntary confessions cannot be used to impeach (b/c unreliable)
 TX exclusionary rule has NO impeachment exception
Exclusionary Rule and Knock and Announce  4th A exclusionary Rule does not apply to knock and announce violations
Rule  So if police have a perfect search warrant and forget to knock and announce, if they find drugs for which the
warrant is issued, drugs are admissible.

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