Where can a crime be prosecuted?

A crime may be prosecuted in any state where an

act that was part of the crime took place or the result took place.
What is the burden of proof in a criminal case? "In a criminal case, the prosecu
tion must prove each element of the crime beyond a reasonable doubt."
"In NY, what are the two types of defenses for criminal cases?" "1) Defenses: Pro
secution must disprove beyond a reasonable doubt
2) Affirmative Defenses: D bears burden of proof by preponderance of the evidence"
What are the two kinds of classifications of crimes?
"1) Felony: A crime tha
t may be punished by more than one year in prison
2) Misdemeanor: A crime for which the maximum punishment may not exceed one yea
r in prison."
What are the four essential elements of crime? "1) Act Requirement
2) Mental State
3) Causation (actual and proximate)
4) Concurrence"
What are culpable acts under the act requirement?
Culpable acts can be eit
her commissions (physical acts) or omissions (the failure to act).
What are considered commissions or physical acts under the act requirement?
"All bodily movements are physical acts that can be basis for criminal liability
, provided they are voluntary."
"What are three examples of involuntary movements that are not considered crimin
al acts"" under the act requirement?""" "1) One that is not the product of the a
ctors volition (e.g., being pushed)
2) Sleepwalking or otherwise unconscious conduct (do not conflate falling asleep
with sleepwalking! Note, this is not usually a big winner!)
3) A reflex or convulsion (e.g. conduct during an epileptic seizure)"
What the three requirements needed for an omission or a failure to act to be the
basis for criminal liability? "1) First and foremost, you need a legal duty
2) Second, you need knowledge of the facts giving rise to the duty, AND
3) Third, you need ability to help"
"Under the three requirements needed for an omission or a failure to act to be t
he basis for criminal liability, what are the five ways in which a legal duty ca
n be created?" "1) By statute (e.g., filing tax returns, professionals reportin
g child abuse)
2) By contract (e.g. babysitter, doctor, lifeguard)
3) By status relationship (e.g. Parent/Child or Spouse/Spouse)
4) By voluntary assumption of care, particularly by assuming responsibility, D s
tops others from coming to aid of imperil party
5) By creation of the peril (D caused the problem initially, D has a duty to hel
p)"
What are the four common law mental states?
"1) Mental State #1: Specific I
ntent (When the crime requires not just the desire to do the act, but also the d
esire to achieve a specific result)
2) Mental State # 2: Malice (When a D acts intentionally, or with reckless disr
egard of an obvious or known risk)
3) Mental State #3: General Intent (the D need only be generally aware of the f
actors constituting the crime; he need not intend a specific result. Note, the
jury can usually infer the general intent simply from the doing of the act)
4) Mental State #4: Strict Liability (When the crime requires simply doing the
act; no mental state is needed)"
"What are the eleven common law specific intent crimes, divided into three categ
ories?" "-Crimes against the person
1) Assault
2) First Degree Premeditated Murder (statutory crime)
-Crimes against property
3) Larceny
4) Embezzlement
5) False Pretenses
6) Robbery
7) Forgery

8) Burglary
-Inchoate crimes
9) Solicitation
10) Conspiracy
11) Attempt"
What are the two defenses that are available only for common law specific intent
crimes?
"1) Voluntary intoxication; and
2) Unreasonable Mistake of Fact"
What are the two common law malice crimes?
"1) Murder
2) Arson"
What are four examples of common law general intent crimes?
"1) Battery
2) Forcible Rape
3) False Imprisonment
4) Kidnapping
Note, all crimes against the person."
What are the two types of common law strict liability crimes? "1) Public Welfa
re Offenses: regulatory or morality offenses that typically carry small penaltie
s (e.g. selling alcohol to a minor; selling contaminated food; corrupting the mo
rals of a minor)
2) Statutory Rape: having sex with someone who is under the age of consent"
Does NY use the common law mental states?
"No, NY uses the five mental sta
tes defined by the MPC instead."
What are the five mental states that NY uses? "1) Intent (MPC: Purpose): When i
t is Ds conscious desire to accomplish a particular result (in other words, that
is what D wanted to do)
2) Knowledge: When D is aware of what he is doing. With respect to a result, wh
en D is practically certain that his conduct will cause that result
3) Recklessness: When D is aware of a substantial and unjustifiable risk, and c
onsciously disregards that risk
4) Negligence: When D should have been aware of a substantial and unjustifiable
risk.
5) Strict Liability: No mental state required (similar to the common law)"
What are the two types of causation needed to satisfy the causation element to p
rove a crime? Actual (or but for) causation and proximate (or legal) causation
What is the general rule and exception regarding actual causation in a criminal
case? "Under the general rule, a D is an actual cause (the cause-in-fact) if the
bad result would not have happened but for Ds conduct.
The exception to this general rule is an accelerating cause is an actual cause (e
.g., X stabs Y, giving Y a fatal wound. Z then shots Y in the head, killing him
instantly. Even though Y was going to die anyway due to Xs actions, Z is an acc
elerating cause and is therefore an actual cause)"
What is the general rule regarding proximate causation in a criminal case ?
A D is a proximate cause if the bad result is a natural and probable consequence
of Ds conduct
How will intervening causes impact whether or not a D is considered a proximate
cause in a criminal case?
D will not be considered a proximate cause if an
unforeseeable intervening event causes the bad result
How will eggshell victims impact whether or not a D is considered a proximate ca
use in a criminal case? D will be considered a proximate cause even if the victi
ms preexisting weakness contributed to the bad result
What is the rule regarding the essential element of concurrence and what two kin
ds of cases is it most frequently an issue?
The rule regarding concurrence s
tates the D must have the required mental state at the same time as he engages i
n the culpable act. Concurrence issues most frequently arise with Larceny and Bu
rglary.
What are the two common law crimes against the person? "1) BATTERY: The unlawfu
l application of force to another resulting in either bodily injury or an offens
ive touching. General Intent is the required mental state

2) ASSAULT: Assault can be either 1) an attempted battery (a swing and a miss)

or 2) the intentional creation other than by mere words of a reasonable fear in
the mind of the victim of imminent bodily harm (a fake punch).The mental state r
equired is Specific Intent."
What is the definition of assault in NY?
Intentionally (mental state) cau
sing physical injury to another person
"In NY, what are three typical factors that make a crime more or less serious in
regards to degrees of crime?" "1.) Weapons (add a gun, add a degree)
2) Injury, which comes in two levels of seriousness: A) Physical injury (substan
tial pain) and B) Serious physical injury (permanent or life-threatening injury)
3) Quantity (money, drugs)"
What are the three degrees of assault in NY?
"1) First Degree Assault: Secon
d degree assault plus a weapon
2) Second Degree Assault: Intentionally causing serious physical injury
3) Third Degree Assault: Intentionally causing non-serious physical injury"
Is battery a separate crime in NY?
"No, battery is not a separate crime in
NY. All versions of assault in NY require injury (note, theres no offensive touch
ing version of assault in NY, as there is with common law battery). Thus, attempt
ed assault in NY requires intent to assault; merely creating a reasonable apprehe
nsion (without an intent to actually injure) is a different crime called menacing
."
What is the year-and-a-day rule in the context of homicide and is it followed in
NY?
"The Common Law rule states that death may occur w/in a year-and-a-day o
f the homicide act.
However, under the NY/Majority rule, the death may occur at any time."
"What is the definition of common law murder, including the required mental stat
e?"
"Common law murder is causing death of another person w/ malice aforetho
ught The requirement of malice aforethought is satisfied if D has any of the fol
lowing four mental states: 1) Intent to Kill; 2) Intent to inflict serious bodil
y injury; 3) Extreme recklessness, meaning reckless indifference to human life o
r having an abandoned and malignant heart (depraved heart murder); 4) Through the
intentional commission of a dangerous felony (i.e., felony murder)"
"What are the two special rules for common law intent to kill"" murder?"""
"1) Deadly Weapon Rule: The intentional use of a deadly weapon creates an infer
ence of an intent to kill
2) Transferred Intent: D intends to harm one V, but accidentally harms a differ
ent V instead, Ds intent will transfer from the intended V to the actual V (this
rule applies most frequently to murder but can also apply to other crimes, such
as battery and arson.) Note, to the first victim (the original target), D would
also be liable for attempt crime. Also note, transferred intent does not apply
to attempts, only to crimes with completed harms."
How is first degree murder defined in most states?
"First Degree Murder is
defined in most states, as any killing committed with premeditation and delibera
tion OR felony murder if the qualifying felonies are enumerated."
What are the three requirements to find first degree murder defined in NY?
"1) An intent to kill;
2) D is more than 18 years old; AND
3) At least one aggravating factor (either A) V is a law enforcement officer, en
gaged in official duties at the time of the killing; B) D committed murder for h
ire; C) Felony murder, where the V was intentionally killed; D) Killing for purp
ose of W intimidation; or E) There was more than one V intentionally killed in t
he same criminal transaction"
What are the three kinds of second degree murder in NY? "1) Intentional killing
that does not qualify for first degree (premeditation and deliberation is irrele
vant in NY)
2) Highly reckless killing demonstrating depraved indifference to human life by
engaging in conduct that creates a grave risk of death, generally involving more
than one V (if theres only one V, look for torture)
3) Felony murder, when V is killed unintentionally."

What is the definition of felony murder?

Felony Murder is any killing cau
sed during the commission of or attempt to commit a felony (very broad).
What are the six limitations on felony murder? "1) D must be guilty of the unde
rlying felony (note, in NY, D need not be convicted of the felony, as long as th
ere is sufficient evidence that he committed it)
2) The felony must be inherently dangerous (note, NY limits felony murder to cer
tain felonies: Burglary, Robbery, Arson, Kidnapping, Escape, and Sexual Assault)
3) The felony must be separate from the killing itself (therefore, for example,
aggravated assault or battery cannot be the underlying crime)
4) The killing must take place during the felony or immediate flight from the fe
lony. Once the felon(s) reach a place of temporary safety, the felony ends.
5) The death must be foreseeable
6) The victim must not be a co-felon"
What is vicarious liability in the context of felony murder?
"If one of the c
o-felons causes the death, all of the other co-felons will be guilty of felony m
urder. This applies even if the actual killing was committed by a third-person
(e.g., a bystander, a police officer), so long as one of the felons is a proximat
e cause of the death."
"What is the non-slayer defense"" in NY?"""
"NY provides a limited affirmati
ve defense to felony murder if D can prove each of the following 4 things:
1) D did not kill V; 2) D did not have deadly weapon; 3) D had no reason to beli
eve co-felons had deadly weapons; AND 4) D had no reason to believe co-felons wo
uld do anything to result in death"
What is the common law definition of voluntary manslaughter?
An intentional k
illing committed in the heat of passion after adequate provocation.
What are the four requirements needed to satisfy adequate provocation in the con
text of common law voluntary manslaughter?
"1) The provocation must be obje
ctively adequate, which mean it would arouse a sudden intense passion in the min
d of a reasonable person
2) D was actually provoked (D needs to be in a state of passion)
3) D did not have time to cool off
4) D did not actually cool off between the provocation and the killing (otherwis
e, would be revenge)"
What are three common law examples of objectively adequate provocation at common
law in the context of voluntary manslaughter? "1) Serious assault or battery
2) Presently witnessed adultery
3) Unlawful restraint"
At common law is provocation in the form of words alone considered objectively a
dequate provocation in the context of voluntary manslaughter? "No; instead, at
common law, provocation in the form of words alone was considered objectively i
nadequate provocation as a matter of law. However, many states no longer follow
this rule."
What is the NY approach to voluntary manslaughter?
"In NY, voluntary mansla
ughter is an intense killing committed under the influence of a reasonable and e
xtreme emotional disturbance (EED).
Note, EED acts as an affirmative defense to second degree murder, which means D
must prove EED by a preponderance of the evidence"
What are the two types of common law involuntary manslaughter? "1) A killing co
mmitted with criminal negligence (Note: do not conflate with tort negligence; cr
iminal negligence is a higher level, a gross deviation of a reasonable standard
of care)
2) A killing committed during a crime that doesnt qualify for felony murder (this
is sometimes called misdemeanor manslaughter)"
What are the two degrees of manslaughter in NY? "1) First Degree Manslaughter (E
ED manslaughter or an intent to cause serious physical injury)
2) Second degree manslaughter
(D is aware of and consciously disregards a substantial and unjustifiable risk o
f death. The mental State is recklessness)"
What is the definition of criminally negligent homicide in NY and what is the re

quired mental state?

D should have been aware of a substantial and unjustifia
ble risk of death. The mental state required is criminal negligence.
What is aggravated homicide and aggravated murder in NY?
"-Aggravated Hom
icide: When V of the homicide is a police officer killed in the line of duty
-Aggravated Murder (new provision): When a D over the age of 18 causes the deat
h of a child under 14 in an especially cruel and wanton matter."
What are the two common law confinement offenses?
"1) Common Law False Imp
risonment
2) Common Law Kidnapping"
What are the two NY confinement offenses?
"1) Unlawful Imprisonment
2) Kidnapping"
What are the three elements and mental state required for common law false impri
sonment?
"-Elements: 1) The unlawful; 2) Confinement of a person; 3) With
out his consent
-Mental State: General Intent"
What are the degrees of unlawful imprisonment in NY?
"-Second Degree: Unlawfu
lly restraining someone without their consent; AND with knowledge that the restr
iction is unlawful
-First Degree: Second Degree plus a risk of serious physical injury"
What are the two elements and mental state required for common law kidnapping?
"-Elements: 1) False imprisonment; 2) That involves moving V or concealing V in
a secret place
i-Mental State: General Intent"
What are the degrees of kidnapping in NY?
"-Second Degree: Abducting some
one
-First Degree: Second degree kidnapping, plus one of the following: 1) for ranso
m; OR 2) restraint of V for more than 12 hours with intent to rape, injure, or r
ob the victim; OR 3) death of V."
How does the victim being killed during a kidnapping impact the degree of homici
de charged in NY?
"-If V is killed accidentally, second degree murder
-If V is killed intentionally, first degree murder"
What are the three elements of forcible rape and what is the required mental sta
te?
"-Elements: 1) Sexual intercourse; 2) Without Vs consent; 3) Accomplishe
d by force, by threat of force, OR when V is unconscious.
-Mental State: General intent"
What are the two elements for statutory rape and what is the required mental sta
te under the majority rule and under the minority/MPC rule?
"-Elements: 1) S
exual intercourse; 2) With someone under the age of consent
-Mental State: the majority rule is strict liability, but the minority.MPC rule
is that a reasonable mistake of age is a defense"
What is the age of consent in NY in the context of statutory rape?
"In NY,
the age of consent is 17, but D would need to be at least 21"
What is the definition of common law larceny? "The trespassory (wrongful or un
lawful) taking and carrying away (import that the property must be moved) of the
personal property of another with the intent to permanently retain the property
Note, the tangible personal property of another leads to the key question of whet
her someone else have lawful custody at the time of the taking: if D has lawful
custody of the property, he cannot be guilty of larceny for taking it (even if
D doesnt own it), but D can be guilty of larceny for taking his own property, if
someone else had lawful custody of the property when D took it."
"Also note, if D intends to give the property back, the taking is not larceny."
""
"Under the Erroneous Takings Rule, is a taking under a claim of right ever larce
ny?"
"No. According to the Erroneous Takings Rule, a taking under a claim o
f right is never larceny, even if D erroneously believes the property is his."
How does continuing trespass impact whether a D is guilty of common law larceny?
"If D wrongfully takes property, but without the intent to steal, he will not be

guilty of larceny. But if D later forms the intent to steal, the initial tresp
assory taking is considered to have continued and he will be guilty of larceny. N
ote, this is an exception to the concurrence rule"
What is common law embezzlement and what is the required mental state? "Embezzl
ement is conversion of the personal property of another by a person already in l
awful possession of that property with the intent to defraud. The required ment
al state is specific intent to defraud (note, if D intends to give the exact pro
perty back in the exact form, he will not have the intent to defraud)"
What is the key difference between common law embezzlement and larceny? "D must
already have lawful possession of the property before a taking can be considered
embezzlement; possession involves more than mere custody, requires some authori
ty to exercise some discretion over the property."
What is common law false pretenses?
"False pretenses is obtaining title to t
he personal property of another by an intentional false statement with the inte
nt to defraud.
Note, the false statement must be of a past or present event (not a future promise
)"
What is the key difference between common law larceny and false pretenses?
"In larceny, D gets only custody of the property; in false pretenses, D gets tit
le, meaning ownership"
How is common law larceny by trick distinguishable from common law false pretens
es?
"If D obtains only custody as a result of the intentional false statemen
t, the crime is larceny by trick, not false pretenses."
What is the required mental state for common law robbery and what are the three
elements?
"-Mental State: Specific Intent
-Elements: 1) A larceny; 2) from anothers person or presence (some location reas
onably close to V, e.g. rooms to a house other than the room in which V is locat
ed); 3) by force (any amount of force sufficient to overcome resistance; e.g., s
natching a chain off the victims neck, snatching a handbag off a womans extended a
rm) or threat of immediate injury
Note, Pickpocketting is not robbery; its larceny. Also, note that under modern s
tatutory law, an individual who obtains the property of another through oral or
written threats of future harm does not commit robbery; he commits the crime of
extortion, which is also called blackmail (e.g., give me your money, or Ill break
your legs tomorrow!; give me your money, or Ill post those pictures of you on the w
eb!)"
What is common law forgery and what is the required mental state?
Common l
aw forgery is the making or altering a writing so that it is false. The require
d mental state is intent to defraud.
What is the definition of larceny in NY?
"Any crime that would be larceny
, embezzlement, false pretenses of larceny by trick at common law is considered
larceny in NY."
What are the five degrees of larceny in NY?
"1) First Degree: More than $1 m
illion
2) Second Degree: More than $50,000
3) Third Degree: More than $3000
4) Fourth Degree: More than $1,000
5) Petit Larceny: Anything $1,000 or less"
What are the three degrees of robbery in NY?
"1) Third Degree: Forcible Steal
ing
2) Second Degree: Forcible Stealing, plus one of the following: A) D is aided by
someone who is actually (physically) present; OR B) V is injured; OR C) A car i
s stolen (carjacking)
3) First Degree: Forcible stealing, plus one of the following: A) V is seriously
injured; B) D uses or display a fire arm (Note, as an affirmative defense, if D
can prove that the gun was unloaded or inoperable, the crime is reduced to seco
nd degree robbery)."
How does the victim being killed during a robbery impact the type of homicide D

is guilty of in NY?
"-If V is killed accidentally, second degree murder (fel
on murder
-If V is killed intentionally, first degree murder"
"For the possession offenses, what are the requirements for the act element?"
"When a statute criminalizes the possession of contraband (e.g., drugs, stolen p
roperty, child pornography), possession means control for period of time long enou
gh to have an opportunity to terminate possession"
"For possession offenses, what does constructive possession"" mean?""" "Constru
ctive Possession"" means that the contraband need not be in Ds actual possession,
so long as it is close enough for him to exercise dominion and control over it.
"""
What is the required mental state for possession offenses?
Knowledge (of po
ssession AND of the character of the item possessed)
What are three examples of possession offenses in NY? "1) Drugs: Criminal Poss
ession of a controlled substance
2) Firearms: Criminal Possession of a weapon (Note, the gun must be loaded and o
perable. Also note that the presence of a gun in a vehicle creates the statuto
ry presumption that all occupants of the vehicle possessed the gun)
3) Stolen Property: Criminal possession of stolen property (Note, the property m
ust really be stolen. Property that is abandoned or is used with permission - e
.g., by the police in an undercover sting - is not considered stolen)"
What is common law burglary?
Common law burglary is breaking and entering the
dwelling (a structure where someone sleeps regularly) of another at night with
the intent to commit a felony inside.
"What does breaking"" mean in the context of common law burglary?"""
"Breaking
means creating/enlarging an opening by at least minimal force. This includes: b
reaking a window, opening a window, opening a door, but does not include climbin
g through an already open window, entering with permission.
Note, breaking can be constructive (constructive"" breaking), meaning entry is gain
ed through by fraud, threats or intimidation (e.g., woman obtain key to an apart
ment by telling the owner she will clean it for him while he is on vacation, but
she actually intends to steal his computer, which she does. Because she gained
entry to the apartment by fraud, this is a constructive breaking)"""
"What does entry"" mean in the context of common law burglary?"""
Some par
t of Ds body must enter the building.
What does with the intent to Commit a Felony Inside refer to in the context of co
mmon law burglary?
"Specific Intent Crime (intent to steal, rob, rape, assa
ult, kill, etc. AT THE TIME D BREAKS IN)"
What are the modern statutory changes to common law burglary? "Many states hav
e eliminated the technical requirements of common law burglary (especially the br
eaking, at night, and dwelling elements)"
What are the three degrees of burglary in NY? "1) Third Degree: entering or re
maining unlawfully in a building with the intent to commit a crime inside.
2) Second Degree: Third degree burglary, plus one of the following: A) the build
ing is a dwelling; OR B) a non-participant is injured; OR C) D carries a weapon.
3) First Degree: D knows that he is burglarizing a dwelling (so state of mind re
quirement), plus one of the following: A) a non-participant is injured; OR B) D
carries a weapon."
What is common law arson and what is the required mental state? "Arson is the ma
licious burning of a building Burning requires material wasting AND it must be
the building itself that burns (not the carpet, for example; must be burning or
charring of the building). The required state of mind is malice."
What are the four degrees of arson in NY?
"1) Fourth Degree: reckless bur
ning of a building
2) Third Degree: intentional burning of a building
3) Second Degree: Third Degree arson, when D knows or should have known that som
eone was inside the building
4) First Degree: Second Degree arson, plus a explosive or incendiary device"
What are two statutory developments to common law arson?
"1) Dwelling: Trad

itionally, arson was limited to dwellings, but most states now extended arson to a
ll buildings
2) Of Another: Traditionally, a D couldnt not commit arson on his own property; mos
t states have eliminated that restriction"
"In accomplice liability, who is the principal?"
The person who commits t
he crime.
"In accomplice liability, who is the accomplice?"
An accomplice aids or en
courages the principal with the intent that the crime be committed.
How does NYs definition of accomplice for accomplice liability differ from the
common law definition? "In NY, the accomplice need not specifically intend that
the crime be committed. It is enough if the accomplice specifically intends to
aid the principles conduct, and otherwise has the mental state required for the
principals crime. This means it is possible in NY to be an accomplice to a negli
gence or recklessness crime."
What is the scope of accomplice liability?
"The accomplice is guilty of all
crimes he aided or encouraged (just as if he did it), and all other foreseeable
crimes committed along with the aided crime."
What are three important principles to keep in mind to determine when someone is
not an accomplice?
"1) Mere presence at the scene of the crime does not mak
e someone an accomplice; he or she must actively aid or encourage the principle
2) Mere knowledge of the crime does not make someone an accomplice; he must inte
nd to aid or encourage the principal (Note, like the common law, NY also require
s intent for accomplice liability. However, mere knowledge can make someone gui
lty of the lesser crime of criminal facilitation)
3) Victims of crime cannot be accomplices, since they are considered members of
a protected class (e.g., minors cant be convicted of selling alcohol to a minor)"
How can an encourager accomplice withdraw?
An accomplice who only encouraged
the principal may w/draw simply by discouraging the crime (before it is committe
d).
How can an aider accomplice withdraw? An accomplice who actually helped the pr
incipal must either neutralize the assistance or prevent the crime from happenin
g (including notifying the authorities)
What is withdrawal from accomplice liability called in NY?
"Renunciation, w
hich requires the accomplice to make a substantial effort to prevent the commiss
ion of the crime. Note, renunciation is an affirmative defense (burden on D)."
"In NY, what role does corroboration play in determining whether someone is guil
ty of accomplice liability?"
"D may not be convicted solely upon uncorroborat
ed testimony of an accomplice, except in police disciplinary hearings."
What is the common law approach to accessory after the fact?
"To commit the s
eparate common law offense of being an accessory after the fact, a D must 1) Help
a principal who has committed a felony; 2) With knowledge that the crime has bee
n committed; and 3) With the intent to help the principal avoid arrest or convic
tion (usually not involved in planning or execution of the crime)"
"What are the modern statutory approaches to accessory after the fact, including
in NY?"
"Typically called obstruction of justice, harboring a fugitive, or (
as in NY) hindering prosecution."
What is the definition of solicitation and what is the required mental state?
"Solicitation is asking someone to commit a crime with the intent that the crime
be committed. The required mental state is specific Intent. Note, completion i
s unnecessary; the crime is in the asking."
What are the inchoate crimes? "1) Solicitation
2) Conspiracy
3) Attempt"
What is the definition of conspiracy and what is the required mental state?
"Conspiracy is an agreement between two or more people to commit a crime, plus a
n overt act in furtherance of the crime. The required mental state is specific
Intent to accomplish the conspiracys objective.
Note, completion is unnecessary; the essence of the crime of conspiracy is the agr
eement; completion of the conspiratorial objective is unnecessary for conviction

."
"What is an overt act"" in the context of conspiracy?"""
"An overt act is a
ny act, even if merely preparatory (Traditionally, the common law didnt require a
n overt act, but the majority of states now do)"
Can you have a one-person conspiracy under Common Law and in NY?
"-Common
Law: NO. There must be at least two parties, both of whom actually agree to ac
complish the conspiracys objectives. (Related Common Law Rules: If all other par
ties to the agreement are acquitted, last remaining D cannot be convicted)
-NY: YES. Under the unilateral approach of NY and the MPC, a D may be guilty of
conspiracy even if the other parties are acquitted or were just pretending to a
gree"
What is the Wharton Rule?
"When two or more people are necessary for the c
ommission of the substantive offense, there is no conspiracy unless more parties
participate in the agreement than are necessary for the crime (NY follows the W
harton Rule)
E.g., dueling requires 2 people, so would need three for conspiracy"
"What is the common law rule regarding vicarious (or Pinkerton"") liability?"""
"In addition to conspiracy, a D will be liable for other crimes committed by his
co-conspirators, so long as those crimes 1) Were in furtherance of the conspira
cys objective; and 2) Were foreseeable."
"What is the NY rule regarding vicarious (or Pinkerton"") liability?""" No vicar
ious liability for one who merely conspires and does not participate in a crime
committed by a con-conspirator
Is impossibility ever a defense to conspiracy? "Impossibility is never a defens
e to a charge of conspiracy (For example, D and A agree to kill V. When they ar
rive at Vs house, they find that he is already dead. D and A can still be convic
ted of conspiracy to commit murder)"
What is the general act requirement and required mental state for attempt crimes
?
"Unlike conspiracy, attempt requires an overt act beyond mere preparatio
n. Regarding mental state, attempt requires the specific intent to commit the u
nderlying crime."
What is the test for determining whether an act is enough to satisfy the general
act requirement for attempt crimes under the Common Law and in NY?
"The Com
mon Law/NY Test (strict) states that conduct must get very close to the commissi
on of the crime (sometimes called the dangerous proximity test)
Note, D is not close enough if he cant find V."
What is the test for determining whehter an act is enough to satisfy the general
act requirement for attempt crimes under the MPC/Majority approach?
"Under t
he MPC/Majority, conduct that constitutes a substantial step towards the commiss
ion of the crime, provided that conduct strongly corroborates the actors criminal
purpose"
Can a D attempt an unintentional crime? "No, you cannot attempt unintentional cr
imes, since you cannot intend to do something unintentional. Practically speaki
ng, this means there are no attempt versions of recklessness crimes, negligence
crimes, or felony murder."
What is factual impossibility and how does it impact criminal liability for atte
mpt crimes?
Factual impossibility means it is impossible to complete the cri
me because of some physical factual conditions unknown to D. Factual impossibili
ty is never a defense to attempt.
What is legal impossibility and how does it impact criminal liability for attemp
t crimes?
"Legal impossibility means it is impossible to complete the crim
e because of some legal circumstance or status that prevents the underlying crim
e from taking place. Legal impossibility is a defense to attempt.
Note, in NY, legal impossibility not a defense to attempt."
"Under inchoate offense doctrines, is withdrawal/renunciation/abandonment ever a
defense in NY/MPC and under the common law?" "-Common Law Rule: Withdrawal i
s not a defense. The exception is that once D withdraws from a conspiracy, he w

ill no longer be vicarious liable for crimes committed by the con-conspirators a

fter he left the conspiracy. However, D is still guilty of conspiracy and of al
l foreseeable crimes committed by co-conspirators prior to his withdrawal.
-NY/MPC: Withdrawal can be a defense, but only if 1) D completely and voluntar
ily renounces the solicitation, conspiracy, or attempt, AND 2) the renunciation
is based on a change of heart, not a fear of failing or being caught."
What are the merger rules for the inchoate offenses?
"-Solicitation and attem
pt merge with completed requirement (Note, in NY, solicitation does not merge).
-Conspiracy does not merge."
"In NY, how are defenses and affirmative defenses created for crimes?" Defenses
and affirmative defenses are created by statuteDefenses and affirmative defense
s are created by statute.
What are the three capacity defenses? "1) Insanity
2) Infancy
3) Voluntary Intoxication"
What are the three most common tests used to gauge whether the mental disease or
defect fenders D legally insane?
"1) The MNagthen Test (majority test pure
ly cognitive): If D either A) Did not know that his act was wrong, OR B) Did no
t understand the nature of his act.
2) The Irresistible Impulse Test (volitional test, sometimes combined w/ MNaghten
): If D either
A) Was unable to control his actions; OR B) Was unable to conform his conduct to
the law
3) MPC Test (used in roughly 25% of the states cognitive and volitional): If D
lacked the substantial capacity to either A) Appreciate the criminality of his c
onduct (cognitive aspect); OR
b) Conform his conduct to the requirements of law"
What is the first requirement needed for any insanity defense? The first requir
ement for the insanity defense is that D must have a mental disease or defect
What two things must a criminal D do to raise an insanity defense in NY?
"1) D must prove he lacked the substantial capacity to either A) Understand the
nature of his act, OR B) Appreciate the wrongfulness of his conduct
2) D must notify the prosecutor w/in 30 days from a not guilty plea if raising ins
anity as a defense."
How does incompetency differ from insanity?
"1) Insanity: the issue is wheth
er D was insane at the time of the crime. If yes, then D is not guilty
2) Incompetency: the issue is whether D is insane at the time of trial. If yes,
then the trial is postponed until D is competent"
"Under the common law approach, when can voluntary intoxication be a defense and
when can it not, and what does the defense require?" "-Can be a defense to sp
ecific intent crimes only
-Cannot, therefore, be a defense to malice, general intent, or strict liability
crimes
-The defense of intoxication requires such severe prostration of the faculties tha
t D cannot form the requisite specific intent"
"Under the NY approach, when can voluntary intoxication be a defense and when ca
n it not?"
"-Can be a defense to intent crimes and knowledge crimes, if the
intoxication prevents D from forming the required state of mind
-Cannot be a defense to crimes of recklessness, negligence, or strict liability"
What is the common law approach to the infancy defense? "The common law approach
to the infancy defense is the Rule of Sevens:
-If at the time of crime, the age is under 7: Prosecution not allowed
-If at the time of crime, the age is under 14: Rebuttable presumption against pr
osecution
-If at the time of the crime, the ages is 14 and older: Prosecution allowed"
What is the NY approach to the infancy defense? "-If the age is under 13: Crimin
al prosecution as an adult not allowed; only juvenile delinquency proceedings in F
amily Court
-If the ages is 13: Criminal prosecution as an adult allowed for second degree

murder
-If the age is 14 or 15: Criminal prosecution as an adult allowed for serious cr
imes against persons or property
-If the age is 16 or older: Criminal prosecution as an adult allowed for any cri
me"
What is the Common Law rule for the mistake of fact defense?
"Whether a Ds mis
take of fact will be a defense depends upon the mental state for the crime and w
hether the mistake is reasonable or unreasonable. So if the mental state is:
-Specific intent, then any mistake (even an unreasonable one) will be a defense
-Malice or general intent, then only a reasonable mistake will be a defense
-Strict liability, then mistake will never be a defense"
"Under the common law, when will a reasonable mistake and an unreasonable mistak
e be a defense?"
"-A reasonable mistake will be a defense to any crime, e
xcept a crime of strict liability
-An unreasonable mistake will be defense only to specific intent crimes"
What is the NY rule regarding mistake of fact defenses? "In NY, a mistake of fac
t will be a defense if the mistake negates the required mental state. This mean
s that:
-For crimes of purpose, knowledge or recklessness, any mistake of fact (even an
unreasonable one) is usually a defense
-For crimes of negligence, only a reasonable mistake will be a defense
-For strict liability crimes, a mistake of fact will never be a defense, no matt
er how reasonable"
"Under the Common Law and in NY, what is the rule regarding mistake of law defen
ses?" "Mistake of law is generally not a defense. However, if the statue spec
ifically makes knowledge of the law an element of the crime (e.g. selling phony R
olex watches knowing it is unlawful to do so), mistake of law can be a defense."
What are common examples of deadly and nondeadly force? "-Common examples of non
deadly force: shoves and punches
-Common examples of deadly force: guns and knives"
What is the rule for use of nondeadly force in self-defense?
D may use nondea
dly force in self-defense if its reasonably necessary to protect against an immed
iate use of unlawful force against himself.
What is the rule for use of deadly force in self-defense?
D may use deadly
force in self defense if he is facing an imminent threat of death or serious bo
dily injury
What is the initial aggressor rule in the context of using deadly force in selfdefense?
"According to the Initial Aggressor Rule, a D may not use deadl
y force if he is the initial aggressor (i.e., the person who started the fight0.
But initial aggressor can regain his right to use deadly force in self-defense if
1) he withdraws from the fight and communicates that withdrawal to the other pe
rson; OR 2) V suddenly escalates the nondeadly fight into a deadly one
Note, in NY, the initial aggressor must withdraw before resorting to deadly self
-defense, even if the other party suddenly escalates a nondeadly fight into a de
adly fight."
What is the retreat rule in the context of using deadly force in self-defense?
"In some states, D is required to retreat before using deadly force in self-defe
nse Under the Majority Rule, retreat is not required. However, under the Minor
ity rule and in NY, retreat is required, unless 1) D cannot retreat in complete
safety, OR 2) D is in his home ( castle exception)."
What happens if D is mistaken about the need for self-defense? "-Reasonable Mis
take: If the mistake is reasonable, its a complete defense
-Unreasonable Mistake: If mistake is unreasonable, there is a split. Under the
Common Law/NY Rule, its no defense at all, but under the Minority/MPC Rule, it
will mitigate liability (Imperfect Self-Defense: An unreasonable belief in the n
eed to use deadly force in self-defense will mitigate murder to voluntary mansla
ughter)"

May force be used to prevent a crime? "-Nondeadly force may be used if necessa
ry to prevent a crime
-Deadly force may only be used to prevent a felony risking human life"
Will a D have a defense if he uses force in defense of others? A D may use forc
e and deadly force to protect others just the same as he could use to defend him
self.
What is the general rule and burglary rule to defense of property?
"-Genera
l Rule: Deadly force may not be used to defend property
-Burglary Rule: Deadly force may be used to prevent a burglary if the D is insi
de his or home"
Will a D have a defense if he uses force in resisting arrest? "If D knows or r
easonably should know the person performing the arrest is a police officer, unde
r the Majority Rule: D may use nondeadly force to resist the arresting officer
if the arrest is unlawful.
In NY, force may not be used to resist an arrest, even an unlawful one, unless t
he arresting officer uses excessive force."
When can a law enforcement officer use deadly force?
An officer may use deadl
y force only when doing so is reasonable under the circumstances.
What is the rule regarding the defense of necessity?
"Necessity is a defense
to criminal conduct if D reasonably believed that his conduct was necessary to p
revent a greater harm However, necessity cannot be a defense to homicide"
What is the NY rule regarding the defense of necessity? "The harm avoided must b
e greater than the harm caused. Note, necessity can be a defense to homicide."
What is the rule regarding the defense of duress?
"Duress is a defense if
D was forced to commit a crime because of a threat from another person of immin
ent death or serious bodily injury to himself or to a close family member. Dures
s cannot be a defense to homicide.
Note, in NY, duress can be a defense to homicide."
What is the defense of entrapment?
"If the government unfairly tempted D to
commit the crime, he may claim entrapment. This very narrow defense works only
if 1) The criminal design originated with the government, AND 2) D was not pre
disposed to commit the crime (kicker, since govt doesnt target people who do not h
ave criminal backgrounds)"
"Under the Alibi Defense in NY, within 20 days a
What is NYs Alibi Defense?
fter arraignment, the prosecutor may serve D with demand for the alibi defense,
and D must reply w/in eight days."
What are the four global search and seizure issues?
"1) Whether a search or
seizure is governed by the Fourth Amendment
2) Whether a search or seizure conducted with a warrant satisfies Fourth Amendme
nt requirements
3) Whether a search or seizure conducted without a warrant satisfies Fourth Amen
dment requirements; AND
4) The extent to which evidence obtained through a search and seizure that viola
tes the Fourth Amendment is nonetheless admissible in court"
"To determine whether the search or seizure is government by the fourth amendmen
t, what two things should you look for?"
"1) Was the search or seizure ex
ecuted by a government agent?
2) Was there a reasonable expectation of privacy in the area searched or the ite
m(s) seized?"
"In the context of the Fourth Amendment, what are the two most important categor
ies of government agents and what are additional categories?" "-Two most impor
tant categories of govt agents for bar: 1) Publicly paid police, on or off duty;
2) Private Citizens, if (and only if) they are acting at the direction of the po
lice.
-Additional categories of potential govt agents: 1) Private Security Guards only
if they are deputized w/ the power to arrest (e.g. campus security officers at m
any public universities); 2) Public school administrators (e.g. principals; vice
-principals)"

What are the four protected areas which the Fourth Amendment protects individual
s from unreasonable searches and seizures of? "1) Persons (i.e. bodies);
2) Houses (including hotel rooms);
3) Papers (e.g. letters, personal correspondence); AND
4) Effects (e.g. purses, back packs)"
What does the protection of houses include under the Fourth Amendment? "The pro
tection of houses includes the area of domestic use immediately surrounding the hous
e, called the curtalige (e.g. back yard enclosed by fence; front porch)"
"To implicate the Fourth Amendment, a search or seizure of persons, houses, pape
rs or effects by govt agents must invade an individuals reasonable expectation of
privacy; what is the two-prong test for figuring out whether this standard has b
een met?"
"1) The individual must have exhibited an actual or subjective e
xpectation of privacy in the area searched or item(s) seized, AND
2) The privacy expectation must be one that society recognizes as reasonable. Not
e, police search is presumptively unreasonable under the Fourth Amendment when i
t uses a device that is not in public use to explore details of the home that of
ficers could not have known without physical intrusion (e.g. Police violated the
Fourth Amendment when, positioned outside the home without a warrant, they used
a thermal imaging device to detect hot spots inside the home where the homeowners h
ad placed halid lights to grow marijuana)"""
"What are the eight categories of items that are sufficiently public"" in nature
that they carry no reasonable expectation of privacy, even if they are searched
or seized by govt agents?""" "1) Paint scrapings on the outside of car
2) Account records held by a bank
3) Airspace: anything that can be seen below while flying in public airspace
4) Garbage left at the curb for collection
5) Voice (sound of your voice)
6) Odors (most important for the bar: those that emanate from Ds car or Ds luggag
e)
7) Handwriting
8) Open fields: that is, anything that can be seen in or across the open field
Note, the thing that these items have in common is knowing exposure to third par
ties."
Who has standing to challenge a search or seizure under the Fourth Amendment?
"To have authority, or standing, to challenge the lawfulness of a search or seizur
e by a govt agent, an individuals personal privacy rights must be implicated, not
those of a third party."
Does a search or seizure by govt agent implicates individuals reasonable expectati
on of privacy so as to confer standing under the Fourth Amendment if they own th
e premises searched?
"Yes, always."
"Does a search or seizure by govt agent implicates individuals reasonable expectat
ion of privacy so as to confer standing under the Fourth Amendment if they do no
t own the premises, but reside there?" "Yes, always."
Does a search or seizure by govt agent implicates individuals reasonable expectati
on of privacy so as to confer standing under the Fourth Amendment if they neithe
r own nor reside in the premises searched but they are overnight guests there?
"Always as to areas overnights guests can be expected to access (e.g. YES: livin
g room, dining room, bathroom; NO: closet in hosts bedroom)"
"Does a search or seizure by govt agent implicates individuals reasonable expectat
ion of privacy so as to confer standing under the Fourth Amendment if they neith
er own, nor reside, nor are staying overnight but are merely using someones resid
ence solely for business purposes?"
"No, never (e.g. apartment of acquaintan
ce used only to bag cocaine)"
Does a search or seizure by govt agent implicates individuals reasonable expectati
on of privacy so as to confer standing under the Fourth Amendment if they own th
e property seized?
Only if they have a reasonable expectation of privacy in
the area from which property was seized (e.g. Man who hides drugs in girlfrien
ds purse? NO!)
Does a search or seizure by govt agent implicates individuals reasonable expectati

on of privacy so as to confer standing under the Fourth Amendment if they are pa

ssengers in a car?
"Only if they have a reasonable expectation of privacy i
n the area searched or the item seized (e.g., a cop finds a baggie of drugs w/ p
assengers name on it under the drivers seat? NO!; A cop finds a bag of marijuana
in a passengers coat pocket in back seat? YES) But remember, a passengers effects
are considered part of the vehicle for purposes of automobile searches; therefo
re, if the search is valid, the passenger will lose the challenge.
Note, in NY, passengers in cars can challenge possession of weapons if possessio
n is attributed to them."
"Is the fact that incriminating evidence may be introduced against an individual
in court sufficient, in and of itself, to provide the authority to challenge th
e search or seizure in court?" "No, the fact that incriminating evidence may be
introduced against an individual in court is insufficient, in and of itself, to
provide the authority to challenge the search or seizure in court."
"To determine whether the search warrant under which criminal evidence was gathe
red satisfy Fourth Amendment requirements, what three key questions do you need
to answer?"
"1) Is the warrant supported by probable cause and particularity
?
2) If not, did police officers rely on a defective warrant in good faith? (applies
to MBE only: NY rejects the good faith doctrine)
3) Was the warrant properly executed by the police?"
What is the majority test for determining whether a search warrant was supported
by probable cause?
"Probable cause requires proof of a fair probability that
contraband or evidence of crime will be found in the area searched, based on a p
reponderance of the evidence. Note, hearsay is admissible for this purpose."
May the police use an informants tip to establish probable cause in support of
a search warrant?
"Yes, police may rely on information obtained through an
informants tip, even if the information is unanimous; the sufficiency of the inf
ormants tip rests on corroborations by the police of enough of the tipsters inform
ation to allow the magistrate to make a common sense practical determination that
probable cause exists (based on a totality of the circumstances)."
What is the NY test for determining whether a search warrant was supported by pr
obable cause? "NY continues to use the stricter Aguilar-Spinelli test in evalu
ating probable cause. Under Aguilar-Spinelli, when applying for a search warran
t, the government must establish two things: 1) The informants basis of knowledge
AND 2) His veracity/reliability."
What is the standard regarding particularity and a search warrant?
"The sea
rch warrant must specify the place to be searched AND the items to be seized. N
ote, you cannot have a general warrant that authorizes a fishing expedition in p
rivate areas that could not house the evidence for which there was probable caus
e to search."
If a warrant that invalid due to absence of probable cause or particularity stil
l be saved?
"Yes, on the MBE, a warrant that is invalid due to absence of pr
obable cause or particularity can still be saved if the officer relied on it in g
ood faith. "
"Note, this is not the case in NY."""
What is the general rule regarding the good faith doctrine in the context of Fou
rth Amendment search warrants and does NY follow it?
"On the MBE, an officers
good faith overcomes constitutional deficits in probable cause and particularity
. NY rejects the good faith doctrine"
What are the four categorical exceptions to the MBEs good faith doctrine for se
arch warrants that have constitutional deficits in probable cause and particular
ity?
"1) The affidavit supporting the warrant application is so egregiously l
acking in probable cause that no reasonable officer would have relied on it (e.g
., bare bones affidavit that states only that police have received information fro
m a confidential informant who is known to them and has provided reliable informatio
n in the past)
2) The warrant is so facially deficient in particularity that officers could not

reasonably presume it to be valid (e.g., warrant authorizes a search for all ser
ial numbers and identification numbers on all property at an address where probab
le cause existed only as to the presence of a stolen vehicle parked outside)
3) The affidavit relied upon by the magistrate contains knowing or reckless fals
ehoods that are necessary to the probable cause finding
4) The magistrate who issued the warrant is biased in favor of prosecution (e.g.
, salary of town official responsible for issuing search warrants comprised enti
rely of cash award for each warrant issued)."
"If the police had a valid warrant or, on the MBE only, a defective warrant save
d by the officers good faith, what question must you ask?"
Was the warrant
properly executed by the police?
What are the two important aspects of the inquiry into whether the warrant was p
roperly executed by the police? "1) Whether the officers executing the warrant c
omplied with its terms and limitations (in executing the warrant, officers are a
llowed to search only those areas and items authorized by the language of the wa
rrant); AND
2) Whether the officers executing the warrant complied with the knock and announc
e rule"
"What is the knock and announce"" rule?"""
"This rule requires police to kno
ck and announce their presence AND their purpose before forcibly entering the pla
ce to be searched, unless the officer reasonably believes that doing so would be
futile or dangerous or inhibit the investigation
Compare:
-No-knock entry was deemed reasonable where there was probable cause to believe
occupant was dealing drugs out of his home, had a violent criminal history, and
kept a cache of weapons in the home
-No-knock entry was deemed unreasonable where occupants believed to be making me
thamphetamine in their home had no violent criminal record, no evidence suggesti
ng they were armed, and no demonstrated risk of destruction of evidence in the t
ime it would take to knock and announce"
What are the eight exceptions to the warrant requirement that would make a warra
ntless search through which criminal evidence was gathered valid?
"1) Exig
ent Circumstances
2) Search Incident to Arrest
3) Consent
4) Automobile
5) Plain View
6) Inventory
7) Special Needs
8) Terry Stop and Frisk"
What are the three kinds of exigent circumstances that would create an exception
to the warrant requirement?
"1) Evanescent Evidence: evidence that would di
ssipate or disappear in the time it would take to get a warrant (e.g. scrapping
under fingernail(s); blood evidence in DUI where breathalyzer refused).
2) Hot Pursuit of Fleeing Felon: Hot pursuit allows police, when looking for a s
uspect, to enter a suspects home or that of a third party into which he has fled.
During hot pursuit, any evidence of a crime discovered in plain view while sea
rching for the suspect is admissible.
3) Emergency Aid exception: Police may enter a residence w/out a warrant when ther
es an objectively reasonable basis for believing that a person inside is in need
of emergency aid to address/prevent injury."
What is the search incident to arrest exception to the warrant requirement?
"The arrest (also called a custodial arrest) must be lawful. The justifications ar
e officer safety AND the need to preserve evidence.The search must be contempora
neous in time and place with the arrest and the geographic scope is the wingspan
, which includes body, clothing, and any containers w/in the arrestees immediate
control without regard to the offense for which the arrest was made.
Note, in NY, to search containers w/in the wingspan, police must suspect the ar

restee is armed"
What is the rule regarding automobiles searched incident to custodial arrest in
the context of the search incident to arrest exception to the warrant requiremen
t?
"For automobiles searched incident to a custodial arrest, the permissibl
e scope is the interior cabin, including closed containers but not the trunk. No
te, once an officer has secured an arrestee (by, for example, handcuffing him and
placing him in the squad car), the officer can search the arrestees vehicle only
if she has reason to believe the vehicle may contain evidence relating to the cr
ime for which the arrest was made
In NY, once the occupant is out of the car, police cannot search closed containe
r or bags inside the vehicle to look for weapons or evidence of crime."
What is the standard regarding the consent exception to the warrant requirement?
"The consent exception to the warrant requirement is consent must be voluntary a
nd intelligent. To satisfy this standard, police officers do not need to tell s
omeone that she has the right to refuse consent.
ii.
Scope of consent: Officers consent to search extends to all areas for wh
ich a reasonable officer would believe permission to search was granted (objecti
ve reasonableness)"
What is the scope of consent regarding the consent exception to the warrant requ
irement?
"For the consent exception to the warrant requirement, the scope
of consent is the officers consent to search extends to all areas for which a re
asonable officer would believe permission to search was granted (objective reaso
nableness)"
"What does apparent"" authority mean in the context of the consent exception to
the warrant requirement?"""
"Apparent authority means if a police officer obta
ins consent to search from someone who lacks actual authority to grant it, the con
sent is still valid under the Fourth Amendment, provided the officer reasonably
believed that the consenting party had actual authority.
Example: apparent authority was found where officers believed that a woman had actu
al authority to consent to their entry into her boyfriends apartment since she ref
erred to the apartment as ours, had a key to enter it, and claimed to keep persona
l belongings there."
How do shared premises impact the consent exception to the warrant requirement?
"When adults share a residence, any or all of them may consent to a search of co
mmon areas w/in it. However, if co-tenants disagree regarding consent to search
common areas, the objecting party prevails, as to areas over which the co-tenan
ts share dominion and control."
What is the standard for the automobile exception to the warrant requirement?
Police officers need probable cause to believe that contraband or evidence of cr
ime will be found in the vehicle
"For the automobile exception to the warrant requirement, where can police offic
ers search?"
"The police officers may search the entire vehicle and they may
open any package, luggage, or other container that may reasonably contain the it
em(s) for which there was probable cause to search."
How do traffic searches affect the automobile exception to the warrant requireme
nt?
"Sometimes what begins as a routine traffic stop results in a search of
all or part of the vehicle. For the search to be lawful, an officer does not ne
ed probable cause at the time the car is pulled over, provided he acquires it be
fore initiating the search."
What are the three requirements of the plain view exception to the warrant requi
rement and what is the special NY rule? "1) Lawful access to the place from whic
h the item can be plainly seen;
2) Lawful access to the item itself; AND
3) The criminality of the item must be immediately apparently
Special NY Rule: Plain view seizure of an obscene material requires prior judic

ial authorization."
"For the inventory searches exception to the warrant requirement, inventory sear
ches occur in what two contexts?"
"1) Arrestees: when they are booked int
o jail
2) Vehicles: when they are impounded"
What are the three requirements needed to make inventory searches constitutional
without a warrant?
"1) The regulations governing them are reasonable in sco
pe;
2) The search itself must comply with those regulations; AND
3) The search is conducted in good faith; that is, it is motivated solely by the
need to safeguard the owners possessions and/or to ensure officer safety (office
rs subjective intent matters)"
What are the four categories for the special needs exception to the warrant requ
irement?
"1) Random drug test: SCOTUS has approved warrantless, random dr
ug tests in a variety of contexts, including A) Railroad employees, following an
impact accident; B) Customs agents, who are responsible for drug interdiction;
AND C) Public school children, who participate in any extracurricular activities
. However, suspicionless drug tests are not permitted where their primary purpos
e is to gather criminal evidence for general use by law enforcement (e.g., the I
ndianapolis police department set up a checkpoint in a part of the city associated
with drug trafficking, that subjected randomly stopped vehicles to search for d
rugs. SCOTUS disallowed the practice, finding that unlike sobriety checkpoints
its primary purpose was to gather criminal evidence against drug dealers, not to
protect motorists from imminent threat to physical safety).
2) Government employees desk and files: Warrantless searches of government emplo
yees desks and files are permitted to investigate work-related misconduct
3) Students effects in public schools: Warrantless searches of the effects (e.g. pur
ses, back packs) of public schoolchildren are permissible to investigate violati
ons of school rules, such as the prohibition of smoking on school grounds
4) Border searches: Neither citizens nor non-citizens have any Fourth Amendment
rights at the border, with respect to routine searches of persons and effects"
What are terry stops in the context of the terry stops and frisks exception to t
he warrant requirement? "A terry stop is a brief detention or seizure for the purp
ose of investigating suspicious conduct. Note, terry stops can take place anywh
ere, e.g. on the street, in a car, in an airport concourse, or on a bus.
3.
4.
Seizure and Traffic Stops
a.
In a traffic stop, both the driver AND the passenger are seized, such th
at either can challenge legality of the stop
i.
Dog sniffs: Dog sniffs at traffic stops are permissible provided the sni
ff does not prolong the stop unreasonably
1.
E.g., it is permissible for K-9 officers to sniff the exterior of a car du
ring a traffic stop while the computer is checking the drivers license and regist
ration"
"In the context of terry stops for the terry stops and frisks exception to the w
arrant requirement, when is an individual seized"" for Fourth Amendment purposes
?"""
"An individual is seized for Fourth Amendment purposes when, based on a
totality of the circumstances, a reasonable person would not feel free to leave
OR to decline an officers request to answer questions. In evaluating whether an
individual has been seized during questioning by law enforcement, you should con
sider whether an officer brandishes a weapon; the officers tone and demeanor when
interacting with the person questioned; AND whether the individual was told she
had the right to refuse consent."
"In the context of terry stops for the terry stops and frisk exception to the wa
rrant requirement, what is the federal and NY standard for police pursuit and se
izure."""""
"-Federal Standard: When being pursued by a police officer, an
individual is seized only if he submits to the officers authority by stopping or
if the officer physically restrains him.
-NY Standard: Police pursuit is a seizure in and of itself"
What are terry frisks in the context of the terry stops and frisks exception to

the warrant requirement?

"A terry frisk is a pat down of the body and out
er clothing for weapons that is justified by an officers belief that a suspect is
armed and dangerous. If during a Terry frisk, an officer finds a weapon, it ca
n always be seized. If, instead, the officer finds something she recognizes as
contraband without manipulating the object she can seize it as well
In NY, officers can seize an item only if it feels like a weapon."
What is standard for car frisks in the context of the terry stops and frisks exc
eption to the warrant requirement?
"When conducting a traffic stop, if an o
fficer believes that a suspect is dangerous, he may search the passenger cabin o
f the suspects vehicle, limited to those areas in which weapon may be placed or h
idden."
"What are protective sweeps"" in the context of terry frisks and the terry stops
and frisks exception to the warrant requirement?"""
"When making an in-home
arrest, police may sweep the residence to look for criminal confederates of the ar
restee whose presence may threaten officer safety"
What evidentiary standards apply to terry stops and frisks?
"Reasonable susp
icion, which is less than probable cause. For terry stops, it requires specific
and articulable facts that inform an officers belief that criminal activity is p
resent (Note, an officers subjective intent is irrelevant in evaluating the legal
ity of the stop; the Fourth Amendment is concerned solely w/ its objective reaso
nableness). For terry frisks, it requires specific and articulable facts that
suggest a suspect is armed and dangerous (remember, a terry frisk is justified b
y a concern for officer safety only; it is not a general search for criminal evi
dence)"
What evidentiary standards apply in protective sweeps in the context of the terr
y stops and frisks exception to the warrant requirement?
"-Officers may sw
eep the area immediately adjoining the place of aresst, provided there is reasona
ble suspicion that the house harbors a person who poses a danger to those on the
arrest scene
-To justify a sweep of more remote areas, the arresting officers must have additio
nal facts sufficient to allow a reasonable prudent officer to conclude that an i
ndividual who may threaten officer safety is present in the area swept"
"Under the exclusionary rule, to what extent can prosecutors use the evidence ga
thered in an unconstitutional search and seizure against D in court?" "Accordi
ng to the exclusionary rule, evidence, whether physical or testimonial, that is
obtained in violation of a federal statutory or constitutional provision is inad
missible in court against the individual whose rights were violated."
What are the five Fourth Amendment limits on the exclusionary rule?
"1) Case
-in-chief vs. cross-examination: Unconstitutionally obtained evidence is exclud
ed from the case-in-chief; it may be introduced to impeach Ds testimony on crossexamination
2) Knock and Announce violations: A failure to comply with the knock and announce r
ule does not require suppression of the evidence subsequently discovered
3) Police misconduct: To trigger application of the exclusionary rule, police m
isconduct must be deliberate, reckless, or grossly negligent (e.g. exclusionary
rule did not apply to bookkeeping error by police employee that led to an unlawf
ul arrest where the error was the result of simple, not gross negligence)
4) Officers reasonable mistakes: The exclusionary does not apply to evidence erron
eously obtained when executing a search warrant, provided an officers mistake was
reasonable (need to stop search when they realize their mistake
5) Fruit of the Poisonous Tree: Derivative (secondary"") evidence, or evidence, both
physical and testimonial, that is obtained by exploiting prior unconstitutional
conduct, e.g., a confession obtained as a result of an earlier unlawful arrest,
is called fruit of the poisonous tree and like direct evidence obtained in violat
ion of the Fourth Amendment, its inadmissible in the prosecutions case-in-chief.
To nullify fruit of the poisonous tree, prosecutors must show a break in the causa
l link between the original illegality and criminal evidence that is later disco
vered."""
"What is direct evidence in the context of the fruit of the poisonous tree"" Fou

rth Amendment limits on the exclusionary rule?"""

"Direct Evidence is evid
ence directly linked to the constitutional violation, e.g., evidence gathered pu
rsuant to a search warrant that violates the Fourth Amendment"
"To nullify fruit of the poisonous tree,"" what are the three doctrines that can
show a break in the causal link between the original illegality and criminal ev
idence that is later discovered?"""
"1) Independent Source: this doctrine appl
ies where there is a source for the discovery and seizure of the evidence that i
s distinct from the original illegality (e.g., a parallel process initiated by o
ther officers)
2) Inevitable Discovery: this doctrine applies where the evidence would necessari
ly have been discovered through lawful means (e.g., the body of a dead girl, dis
covered by the police through an unlawful interrogation, would necessarily have
been found lawfully by the police who were presently conducting a grid search of t
he area in question)
3) Attenuation: this doctrine admits derivative evidence where the passage of tim
e and intervening events purge the tape of the original illegality and restore Ds f
ree will (e.g., D illegally arrested on Friday, meets with attorney on Monday, c
onfesses on Tuesday)"
What are the four major requirements for a wiretap warrant?
"1) Suspected pe
rsons: the warrant must name the suspected persons whose conversations are to b
e overheard
2) Crimes: There must be probable cause that specific crime has been committed
3) Conversations: The warrant must describe with particularity conversations th
at can be overheard
4) Time: Wiretap must be for a strictly limited time period"
"What is the Unreliable Ear"" doctrine and Assumption of Risk?"""
"Accordi
ng to Unreliable Ear doctrine and Assumption of the Risk, if you speak to someone
who has agreed to a wiretap or some other form of electronic monitoring, you hav
e no Fourth Amendment claim; you assume the risk that the other party will not k
eep your conversations private."
When does an arrest occur?
"An arrest occurs whenever the police take someo
ne into custody against his will for prosecution or interrogation. Note, it is
considered a de facto arrest when the police compel someone to come to the polic
e station for questioning or fingerprinting."
What is the standard of proof for all arrests? THE STANDARD OF PROOF for all ar
rests is always PROBABLE CAUSE.
For what offense does the FOURTH AMENDMENT PERMIT A CUSTODIAL ARREST? "ALL OFF
ENSES, even those punishable by a monetary fine only"
"Do the police need a warrant to arrest someone in a public place, in their home
, or in the home of a third party?"
"-Police do not need a warrant to arrest
someone in a public place;
-Absent an emergency, police officers need a warrant to arrest someone in his or
her home
-To arrest someone in the home of a third party, police officers need an arrest
warrant and a search warrant"
"What is the common enterprise theory?"""""
"Under the common enterprise the
ory,"" in a traffic stop, where a police officer discovers evidence of crime tha
t suggests a common lawful enterprise between the driver and his passenger(s), t
he officer may arrest any or all of them, based on the reasonable inference of s
hared dominion and control over the contraband."""
"In NY, what does the sliding scale of police authority"" refer to in the contex
t of minimal intrusion or a request for information by the police?""" Police c
an approach and request information except on whim or caprice. Individuals right
not to respond and even to run away does not give police probable cause to arres
t.
What are the three federal constitutional challenges that can be brought to excl
ude a confession?
"1) Fourteenth Amendment: Due Process Clause
2) Sixth Amendment: Right to Counsel
3) Fifth Amendment: Miranda Doctrine"
"In addition to the three federal constitutional challenges, how else can a D ch

allenge an admission of a confession in NY?"

"Ds can also challenge a confess
ion under NYs indelible right to counsel, which derives from the Sixth Amendment o
f the state constitution."""
What is the standard for excluding a confession under the due process clause?
"The standard for excluding a confession under the due process clause is involu
ntary-ness, which means that the confession is the product of police coercion th
at overbears the suspects will. Note, spiritual compulsion does not implicate du
e process!
NY has specifically ruled that the length of interrogation and custody are facto
rs in determining voluntary-ness of confessions."
What is the right to counsel under the Sixth Amendment? "The right to counsel un
der the Sixth Amendment is an express constitutional guarantee that attaches whe
n D is formally charged, not upon arrest and applies at all critical stages of the
prosecution that take place after the filing of formal charges, including arrai
gnment, probable cause hearings, police interrogation and sentencing.
4) This offense is offense specific. This means it applies only to the charges fi
led against you. It provides no protection for uncounseled interrogation for ot
her uncharged criminal activity.
5) Incriminating statements obtained from D by law enforcements about charged of
fenses violates the Sixth Amendment if those statements are deliberately elicite
d and D did not knowingly, intelligently, and voluntarily waive his right to hav
e his attorney present."
"What is NYs indelible"" right to counsel?""" "NYs right to counsel, referred t
o as the indelible right to counsel provides greater protection than the Sixth Ame
ndment. The indelible right to counsel attaches not only at formal charging, but
also whenever there is significant judicial activity or activity overwhelming t
o an ordinary person before the filing of an accusatory instrument such that D m
ay benefit from the presence of counsel. Accordingly, if D is taken into custody
for questioning on a charge and the police are aware that he is represented by
counsel on that charge, they may not question him about that charge or any other
matter w/out his attorney present"
"In NY, if D is represented by counsel, does a waiver of the indelible right to
counsel need to take place in the presence of the attorney?"
"Yes; if D is re
presented by counsel, waiver of the indelible right to counsel must take place i
n the presence of the attorney. However, if D is released and later arrested on
unrelated charges, waiver can be made w/out the presence of counsel from prior
charges"
Is the Sixth Amendment right to counsel offense specific?
"Yes, the right
is offense specific. This means it applies only to the charges filed against you.
It provides no protection for uncounseled interrogation for other uncharged cr
iminal activity."
When does an incriminating statement obtained from D by law enforcements about c
harged offenses violate the Sixth Amendment?
"Incriminating statements obtain
ed from D by law enforcements about charged offenses violates the Sixth Amendmen
t if those statements are deliberately elicited and D did not knowingly, intelli
gently, and voluntarily waive his right to have his attorney present."
What are Miranda rights?
Miranda rights are implied rights grounded in th
e Self-Incrimination Clause of the Fifth Amendment.
What are the core Miranda warnings?
"1) Right to remain silent
2) Anything you say can and will be used against you in a court o law
3) Right to an attorney
4) If you cannot afford one, an attorney will be appointed for you"
What are the two core requirements for when Miranda warnings are necessary?
"1) Custody: A suspect is in custody, for Miranda purposes, if the atmosphere, v
iewed objectively, is characterized by police domination and coercion such that
suspects freedom of action is limited in a significant way
2) Interrogation: The Fifth Amendment Miranda doctrine defines as any conduct t
he police knew or should have known was likely to elicit an incriminating respon
se (subjective intent of police officer is less important here than under Sixth

Amendment). Note, Miranda does not apply to incriminating statements made spont
aneously since they are not the product of interrogation."
"What is the public safety"" exception to the Miranda doctrine?"""
"Under t
he public safety"" exception, if a custodial interrogation is prompted by an imm
ediate concern for public safety Miranda warnings are unnecessary and any incrim
inating statements are admissible against the suspect."""
When are incriminating testimonial responses obtained through custodial interrog
ation admissible?
"Unless the public safety exception applies, incriminati
ng testimonial responses obtained through custodial interrogation are admissible
provided the officer, before initiating questioning reasonably conveys to the sus
pect his core Miranda rights; AND thereafter obtains a valid waiver of the suspe
cts Miranda rights to silence and counsel."
What are the two core requirements for a valid Miranda waiver? "1) Knowing and I
ntelligent: A Miranda waiver is knowing and intelligent if the suspect understand
s the nature of the rights AND the consequences of abandoning them
2) Voluntary: A Miranda waiver is voluntary if it is not the product of police c
oercion (Note, under NYs parent/child rule, if the police use deception or concea
lment to keep a parent away from a child who is being interrogated, the childs wa
iver may be deemed invalid)"
How can a Miranda waiver be executed? "A Miranda waiver need not be express; it
may, instead be implied by a course of conduct that indicates the desire to spea
k with police interrogators. If a suspect has received and understood his Miran
da rights, he waives his right to remain silent by making an uncoerced statement
to the police
Note, Justice OConnor has commented in this regard that suspects are not entitled
to a flow of information to calibrate their self-interest."
Who bears the burden of proving a valid Miranda waiver? "In proving a valid wavi
er of suspects Miranda rights, prosecution bears burden of proof by a prepondera
nce of the evidence"
How must a D invoke his right to remain silent under the Miranda doctrine and wh
at is it effect?
"Suspects must unambiguously invoke their right to remai
n silent (have to say it). Once the suspects invoke the right to remain silent,
police officers must scrupulous honor the invocation. This means, the very least
that the police cannot badger a suspect into talking, must wait a significant p
eriod of time before reinitiating question; AND must first obtain a valid Mirand
a waiver before reinitiating questioning."
How must a D invoke his right to conusel under the Miranda Doctrien and what is
the effect of a D invoking this right? "Ds request for counsel must be suffici
ently clear that a reasonable officer in the same situation would understand the
statement to be a request for counsel. Once a suspect asks for counsel (lawyers
up); all interrogation must cease unless initiated by the suspect. The request fo
r counsel expires 14 days after a suspect is released from custody; a waiver of
the Miranda right to counsel obtained after this period is valid, provided it is
knowing, intelligent and voluntary
Note, unlike the Sixth Amendment, the Fifth Amendment right to counsel is not of
fense-specific; therefore, interrogation following a request for counsel under M
iranda is prohibited as to all topics, outside the presence of the suspects attor
ney."
What are the three limitations on evidentiary exclusion as applied to Miranda vi
olations?
"1) Incriminating statements obtained in violation of a suspects
Miranda rights are inadmissible in the prosecutors case-in-chief but may be used
to impeach Ds testimony on cross-examination but NOT the testimony of third party
Ws.
2) Failure to give a suspect Miranda warnings does NOT require the suppression o
f the physical fruits of incriminating statements, provided the statements are v
oluntary (e.g., D confesses to officer that he killed V and where he hid the mur
der weapon. The interrogation is found to violate Miranda. However, the weapon
cannot be suppressed)

3) If a statement is inadmissible due to a Miranda violation, subsequent stateme

nts made after obtaining a Miranda waiver are admissible, provided initial, nonMirandized statement was not obtained through the use of inherently coerce polic
e tactics, offensive to due process"
"If testimonial evidence that should have been excluded as violative of Miranda
was improperly admitted at trial and D was convicted, is the court required to v
acate the guilty verdict?"
"It depends. The guilty verdict will stand if t
he government can prove, beyond a reasonable doubt, that the error was harmless,
because the D would have been convicted without the tainted evidence. This har
mless error rule also applies to physical evidence improperly admitted under the
Fourth Amendment."
What are the three types of pretrial identification?
"1) Line-ups: W is aske
d to id the perpetrator from a group
2) Show-ups: one-on-one confrontation between W and suspect
3) Photo arrays: W asked to pick out the perpetrator from a series of photos"
What are the two substantive challenges to pretrial identification?
"1) Deni
al of the Right to Counsel: There is no Fifth Amendment right to counsel under
Miranda for pretrial id procedures. However, a right to counsel exists under the
sixth Amendment at line ups and show ups that take place after formal charging,
but there is no Sixth Amendment right to counsel at photo arrays (Note, NY prov
ides greater protection for suspects. In NY, you have the right to have an atto
rney present at a line-up conducted before formal charges if you are aware that
you have counsel and you request that counsel be present)
2) Violation of Due Process: A pretrial identification procedure violates the D
P clause of the Fourteenth Amendment when it is so unnecessarily suggestive that
it creates a very substantial likelihood of irreparable misidentification. In
making this determination, courts must weigh the reliability of a suggestive ide
ntification against its corrupting effect."
What is the remedy for constitutional violations in pretrial identifications?
"The remedy for constitutional violations in pretrial identification is the excl
usion of Ws in court identification. However, even if there is a constitutional
violation in a pretrial identification procedure, an in-court identification wil
l still be allowed if the prosecution can prove that it is based on observations
of the suspect other than the unconstitutional show-up, line-up or photo array.
"
"What are three facts that the prosecution can point to in order to prove that a
Ws in-court trial identification is based on observations of the suspect other
than the unconstitutional show-up, line-up or photo array?"
"1) Ws opportunit
y to view D at the crime scene;
2) The certainty of the Ws identification; AND
3) The specificity of the description given to the police"
What do grand juries do?
Issue indictments
Are grand jury proceedings public?
"No, they are secret proceedings."
Do states have to use grand juries as part of the charging process?
"No, the
y do not need to use grand juries as part of the charging process and most state
s dont."
"In NY, what must a grand jury indictment establish?" Indictments must establi
sh all elements of the offense and provide reasonable cause to believe that the
accused committed the offense.
What is the standard of proof for pretrial detention? The government needs pro
bable cause both to bind a D over for trial and to detain him in jail before tri
al.
Is a detention hearing necessary to justify a pretrial detention?
"A deten
tion hearing, or a hearing to determine probable cause (sometimes called a Gerst
ein hearing), is unnecessary to justify pretrial detention if 1) the grand jury
has issued an indictment; OR 2) a magistrate has issued an arrest warrant."
"In the context of pretrial detention, what must happen soon after a Ds arrest?
"
"Soon after arrest, D must be bought before a magistrate who will:
1) advise him of his rights; 2) set bail; AND 3) appoint counsel if necessary."
When may decisions regarding bail be appealed? Decisions regarding bail are imm

ediately appealable.
What is the Brady rule? A prosecutor must disclose to a criminal D all material
exculpatory evidence.
What two things does a right to an unbiased judge mean? "1) The judge has no fin
ancial stake in the outcome of the case; AND
2) The judge has no actual malice toward D"
When does a criminal defendant have a right to a jury trial?
Criminal Ds have
the right to a jury trial when the maximum authorized sentence exceeds six mont
hs.
How many jurors must there be and how many does NY require?
"There must be a
t least six jurors in a criminal trial. NY (like most states) requires 12 perso
n juries; however, a D can waive this requirement and proceed to verdict with on
ly 6 jurors participating in the deliberations."
Do jury verdicts need to be unanimous? "Jury verdicts in criminal trials must b
e unanimous only if 6 jurors are used; verdicts in 12-person juries need not be
unanimous.
Note, NY requires unanimous jury verdicts (like most states)."
"What is the cross sectional"" requirement for juries?"""
"The cross-sectio
nal requirement regarding jurors require that the pool from which the jury is dra
wn represents a cross-section of the community; therefore, a jury that contains
all white women over the age of 60 does not violate the cross-sectional provided
the pool from which it was drawn was appropriately diverse."
What are peremptory challenges in the context of juries?
"Peremptory chal
lenge permit both sides to exclude jurors without stating their reasons for doin
g so, but they cant be used by either side to exclude prospective jurors on accou
nt of race or gender."
When does a Ds Sixth Amendment right to confront Ws against him not apply?
"Ds Sixth Amendment right to confront adverse Ws does not apply where face-to-fac
e confrontation would contravene important public policy concerns (e.g., traumat
izing a child W)."
What is the two-prong test that applies to claims of ineffective assistance of c
ounsel? "1) Counsels performance was deficient (example of the strictness of the
deficiency standard: Insufficient showing of deficiency where attorney took cat
nape during trial but was otherwise effective); AND
2) But for the deficiency, the outcome of the trial would have been different (t
he prejudice requirement) (example of strictness of prejudice standard: Insuffici
ent showing of prejudice where attorney slept through entire 15-minute testimony
of W for the prosecution and thus could not engage in any cross-examination; no
prejudice because W testified as to non-contested matters only)"
What is a NY example regarding an ineffective assistance of counsel claim?
Reversal of a guilty verdict was not required on ineffective assistance of couns
el grounds when one (but not both) of two attorneys representing D was found to
be unlicensed.
What is required for a plea to be valid?
"For a guilty plea to be valid,
the judge must establish that it is voluntary AND intelligent."
"What is a plea-taking colloquy?""""" "In order to show that a guilty plea is
voluntary AND intelligent (thus making it valid), the judge must conduct a plea-t
aking colloquy in which judge addresses in open court and on the record: 1) the n
ature of the charges (including required elements of the offense); AND 2) the c
onsequences of the plea (e.g., waiver of the right to plead not guilty; waiver o
f the right to a trial)."
What are the four scenarios in which a D may withdraw a guilty plea after senten
cing? "1) The plea is involuntary, due to a defect in the plea-taking colloquy
;
2) There is a jurisdictional defect (i.e., the wrong court took the plea);
3) D prevails on a claim of ineffective assistance of counsel; OR
4) The prosecutor fails to fulfill his end of the bargain;the remedy is D can w/
draw plea and go back to square one (e.g., prosecutor agrees to make no sentenci
ng recommendation but at the sentence hearing, he tells the judge to impose maxi

mum penalty)."
"In the context of punishment, what is the Eighth Amendment standard?" The Eigh
t Amendment prohibition against cruel and unusual punishment disallows criminal
penalties that are grossly disproportional to the seriousness of the offense com
mitted
When does a death penalty statute violate the Eight Amendment? "A death penalty
statute would violate the Eight Amendment if it created an automatic category f
or the imposition of the death penalty (e.g., a statute that provides that any co
nviction for first degree murder where the victim is a police officer requires t
he imposition of a sentence of death)."""
What are the evidentiary requirements for the death penalty?
"In deciding whe
ther to impose the death penalty, jurors must be allowed to consider all potenti
ally mitigating evidence."
The Eighth Amendment prohibits the death penalty in what three categories of Ds?
"1) Ds with mental retardation
2) Ds who are presently insane (if regain mental health, but not while crazy)
3) Ds who were under the age of 18 at the time the relevant offense occurred (n
ot the present age)"
"In the context of double jeopardy, when does jeopardy attach?" "-Jury trial: wh
en the jury is sworn
-Bench trial: when the first W is sworn
-Guilty plea: when the court accepts Ds plea unconditionally"
Does the double jeopardy clause apply to civil proceedings?
"No, the double
jeopardy clause does not apply to civil proceedings."
What does the double jeopardy clause provide? .NOR SHALL ANY PERSON BE SUBJECT F
OR THE SAME OFFENCE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB BY THE SAME SOVER
EIGN
"What is the federal rule regarding the same offence"" requirement for double je
opardy?"""
"Two offense are NOT the same offense for purpose of the double
jeopardy clause if each contains an element the other does not
Consider Vehicular Manslaughter (causing death of another through the use of an
auto operated negligently) vs. Hit and Run (causing bodily injury to another thr
ough the use of an auto operated negligently and unlawfully leaving the scene of
the accident): Vehicular Manslaughter and Hit-and-Run are not the same offense
for double jeopardy because vehicular manslaughter requires proof of death whic
h hit and run does not; and hit and run requires proof that D unlawfully left th
e scene, which vehicular manslaughter does not."
"What is the NY approach to the same offence"" requirement for double jeopardy?"
""
"In defining same offense, NY uses the transaction test which requires that
D be charged with all offenses arising from any single transaction unless 1) the
offenses have substantially different elements; 3) each offense contains an ele
ment not in the other AND they vindicate different harms; 3)
one is for criminal possession and the other use; OR 4) each offense involved ha
rm to a different victim."
Are two offenses the same offense if only one offense has an element not contained
in the other? "Prosecution for the greater offense precludes latter prosecutio
n for the lesser-included offense. Likewise, prosecution for the lesser-include
d offense also precludes later prosecution for the greater offense"
Who are the same sovereigns for the purposes of the double jeopardy clause?
"-State and federal governments are not the same sovereign
-Different states are not the same sovereign
-States and municipalities within them are the same sovereign"
What are the four exceptions to the double jeopardy rule that permit retrial?
"1) A hung jury
2) A mistrial for manifest necessary (e.g., retrial was permitted where a defect
was found in the indictment during trial that could not be cured by amending it
)
3) A successful appeal, unless the reversal on appeal was based on the insuffici
ency of the evidence presented by the prosecution at trial; AND

4) A breach of the plea agreement by D"

"Who may assert the Fifth Amendment Privilege against compelled testimony (Takin
g the Fifth"")?"""
"ANYONE MAY ASSERT the privilege (e.g,, Ds, Ws, parties
to civil proceedings)"
When may the Fifth Amendment Privilege against compelled testimony be asserted?
"The privilege can be asserted in any proceeding in which an individual testifie
s under oath. However, the privilege must be asserted at the first opportunity
or it is forever waived (when asked with the same question in a later proceeding
).
Note, in NY, the privilege cannot be asserted in a grand jury proceeding."
What does the Fifth Amendment privilege against compelled testimony specifically
protect against?
"This is a testimonial privilege that protects us from c
ompelled testimony only; it does not apply to the states use of our bodies (e.g.,
the privilege does not apply to the forcible extraction of blood or urine sample
s for prosecutorial use in a DUI case)."""
The Fifth Amendment privilege against compelled testimony disallows negative pro
secutorial comment on what two things? "1) A Ds decision not to testify at his
trial
2) A Ds invocation of his right to silence or counsel"
What are the three ways to eliminate the Fifth Amendment privilege against compe
lled testimony? "1) Grant of Immunity: Prosecutors can grant use and derivative
use immunity, which bars the government from using your testimony or anything der
ived from it to convict you (note, NY uses transactional immunity which is broader
than use and derivative use immunity since it shields Ws from prosecution for any
transaction they testified about in their immunized testimony). Remember, an in
dividual can be convicted based on evidence obtained prior to the grant of immun
ity.
2) D taking the stand: By taking the stand, D waives the ability to take the Fif
th as to anything properly within the scope of cross-examination
3) Statute of Limitations: The privilege is unavailable if the statute of limit
ations has run on the underlying crime since, in this circumstance, a Ws testimon
y could not expose him or her to criminal prosecution"