Criminal Law and Procedure: The VerdictUp Treatise

I. Fundamentals

Actus Reus (Voluntary Act) A crime requires a voluntary physical act. Unconscious acts, reflexes, or sleepwalking are not voluntary. Exam Tip: If the defendant is physically forced to act, they lack actus reus.

Mens Rea (Culpable Mental State)

1. Purpose (Intentional): Conscious objective to cause the result.
2. Knowledge: Aware the result is practically certain.
3. Recklessness: Conscious disregard of a substantial and unjustifiable risk.
4. Negligence: Failure to perceive a substantial and unjustifiable risk that a reasonable person would have perceived. Exam Tip: When a statute is silent, assume recklessness for general intent crimes.

Concurrence The actus reus and mens rea must exist simultaneously.

II. Inchoate Crimes & Accomplice Liability

Accomplice Liability One who aids, counsels, or encourages with the intent that the crime be committed. Liable for the crime and all foreseeable crimes. Exception: Withdraw by neutralizing the assistance.

Conspiracy An agreement between two or more persons to commit an unlawful act. Modern statutes require an overt act. Rule: Pinkerton Doctrine—conspirators are liable for all foreseeable crimes of co-conspirators in furtherance of the conspiracy.

Attempt Specific intent to commit a crime

• a substantial step beyond mere preparation. Defense: Abandonment is a defense if voluntary and complete.

III. Homicide

Common Law Murder Unlawful killing of a human being with malice aforethought. Malice is satisfied by: (1) intent to kill, (2) intent to cause GBH, (3) reckless indifference (depraved heart), or (4) felony murder.

Felony Murder Unintended killing during the commission of a dangerous felony. Exception: Redline rule—no liability for the death of a co-felon caused by police or victim.

Manslaughter Voluntary: Intentional killing mitigated by adequate provocation (heat of passion). Involuntary: Killing resulting from criminal negligence or during a misdemeanor (unlawful act).

IV. Other Crimes

Theft Crimes Larceny: Trespassory taking and carrying away of personal property of another with intent to permanently deprive. Embezzlement: Conversion of property by one in lawful possession. False Pretenses: Obtaining title to property via intentional false statement. Robbery: Larceny from the person by force or threat.

Burglary Common Law: Breaking and entering the dwelling of another at night with intent to commit a felony therein. Note: Modern law has largely abolished the night/dwelling requirements.

V. Defenses

Self-Defense Use of force reasonable to prevent immediate unlawful harm. No duty to retreat unless required in the jurisdiction.

Insanity Tests

1. M'Naghten: Didn't know nature of act or wrongfulness (M'Naghten's Case).
2. MPC: Lacked capacity to appreciate wrongfulness or conform conduct.

Intoxication Voluntary: Defense only to specific intent crimes if it negates mens rea. Involuntary: Treated as insanity.

VI. Criminal Procedure

Search and Seizure Katz v. United States: Reasonable expectation of privacy (REP) test. Warrant required unless an exception exists: Search incident to arrest, plain view, automobile exception, exigent circumstances, or consent (Terry v. Ohio).

Confessions Miranda v. Arizona: Rights must be read during custodial interrogation. Violation precludes prosecution use of statement, but evidence derived is generally admissible.

Exclusionary Rule Mapp v. Ohio: Evidence obtained in violation of the 4th Amendment is inadmissible. Includes "fruit of the poisonous tree" doctrine.

Double Jeopardy Attaches when the jury is sworn or first witness is called. Protects against second prosecution for same offense by same sovereign.

Rapid Review

• Actus reus must be a voluntary physical movement.
• Concurrence: Mental state must exist at the time of the physical act.
• Accomplices are liable for foreseeable crimes committed by principals.
• Conspiracy: An agreement plus a substantial step/overt act.
• Attempt requires a "substantial step" towards the crime.
• Felony murder requires the death be a foreseeable result of the felony.
• Larceny requires "intent to permanently deprive" at the moment of taking.
• Burglary: Intent to commit a felony must exist at the moment of entry.
• Self-defense requires a reasonable belief that force is necessary.
• Insanity under M'Naghten focuses on the inability to understand right from wrong.
• Miranda applies only to custodial interrogations.
• Double jeopardy does not prevent trials by different sovereigns (e.g., state vs. federal).

Criminal Procedure Review (Constitutional Rules)

1. The Exclusionary Rule

• Evidence obtained in violation of the Fourth, Fifth, or Sixth Amendment is generally inadmissible in the prosecution's case-in-chief, together with its "fruits."
• It does not apply in grand jury proceedings, civil cases, or parole revocation hearings.
• Limits on fruit of the poisonous tree: independent source, inevitable discovery, attenuation (including an intervening free-will act by the defendant), good-faith reliance on a warrant, statute, or binding precedent, and violations of the knock-and-announce rule.
• Impeachment: unlawfully obtained statements or evidence can be used to impeach the defendant's own testimony, but not other witnesses.
• Standing: only a person whose own reasonable expectation of privacy was invaded may object.
• Harmless error: trial errors are reviewed for harmlessness, but total denial of counsel at trial is structural error.

2. The Fourth Amendment Is there a search? The government (including private persons acting for police) intrudes on a reasonable expectation of privacy or physically trespasses to gather information.

• No reasonable expectation of privacy: voice or handwriting exemplars, paint on a car, open fields, curtilage seen from public airspace, garbage left for collection, a dog sniff of luggage, bank records held by a third party.
• Modern updates: a warrant is generally required to search a cell phone seized incident to arrest and to obtain extended cell-site location records; attaching a GPS tracker to a car is a search.

Seizure of persons

• A person is seized when a reasonable person would not feel free to leave.
• Arrest requires probable cause. A warrant is required to enter a home to arrest absent exigency, but not to arrest in public.
• A brief investigative stop requires reasonable, articulable suspicion. A frisk requires reason to think the person is armed and dangerous, and is limited to a pat-down of outer clothing; plain feel allows seizure of an item whose character is immediately apparent.
• Traffic stops require reasonable suspicion of a violation; an ulterior motive does not matter. Drivers and passengers may be ordered out. Checkpoints without individualized suspicion are allowed for sobriety or border purposes but not for general crime control.
• Using deadly force to stop a fleeing suspect is a seizure and requires probable cause to believe the suspect poses a serious threat.

Search warrants

• Need probable cause, particular description of the place and items, and a neutral and detached magistrate.
• An informant's tip is assessed under the totality of the circumstances.
• A warrant is invalid if the affiant knowingly or recklessly included a material falsehood.
• Execution: police generally knock and announce, but suppression is not the remedy for violating that rule.
• Officers may detain occupants during a search for contraband.

Warrantless search exceptions

1. Search incident to lawful arrest: the arrestee and the area within immediate reach. For a vehicle, only when the arrestee can reach the passenger compartment or police reasonably believe evidence of the offense of arrest is inside.
2. Automobile exception: probable cause to believe the vehicle contains evidence permits search of the whole vehicle and any container that could hold the item.
3. Plain view: officer lawfully present, item in plain view, probable cause that it is evidence or contraband.
4. Consent: voluntary, and given by someone with actual or apparent authority. A present co-occupant's refusal overrides another's consent. Police need not warn of the right to refuse.
5. Exigent circumstances: hot pursuit of a fleeing felon, imminent destruction of evidence, emergencies threatening life.
6. Stop-and-frisk (Terry).

• Related: inventory searches under standardized procedures; administrative and special-needs searches (school searches need only reasonable suspicion); border searches need no suspicion for routine searches.

3. Confessions and Interrogation

• Voluntariness (Due Process): a confession obtained through police coercion is inadmissible for any purpose.
• Miranda (Fifth Amendment): warnings required before custodial interrogation. Custody means a reasonable person would not feel free to end the encounter; routine traffic stops are not custody. Interrogation means questions or conduct police should know are likely to elicit an incriminating response. Spontaneous statements and routine booking questions fall outside.
• Waiver must be knowing, intelligent, and voluntary; silence alone is not waiver.
• Invocation: Invoking silence must be scrupulously honored, though police may later reapproach after a significant break with fresh warnings. Invoking counsel (clear and unambiguous) stops all questioning on any crime until counsel is present or the suspect himself reinitiates.
• Exceptions and remedies: public safety exception; Miranda-defective statements can impeach but cannot be used in the case-in-chief; an intentional question-first, warn-later strategy taints the second confession; physical evidence discovered through an unwarned but voluntary statement is generally not suppressed.
• Sixth Amendment: right to counsel attaches at formal charge (indictment, information, arraignment, preliminary hearing) and is offense-specific. After attachment, deliberate elicitation of statements without counsel is barred, even by an undercover informant, unless the right is waived.

4. Identification Procedures

• Post-charge lineups: right to counsel. No right to counsel for photo arrays, handwriting or voice samples, or pre-charge lineups.
• Due process: suppress if the procedure is unnecessarily suggestive and creates a substantial likelihood of misidentification, judged by the witness's opportunity to view, attention, accuracy of prior description, certainty, and time since the crime.
• An in-court identification survives if it has an independent source.

5. Pretrial Matters

• Probable cause determination within about 48 hours after a warrantless arrest.
• Bail: the Eighth Amendment bars excessive bail; preventive detention is permitted with proper findings. Bail issues are immediately appealable.
• Grand jury: not required of the states; secret; no right to counsel in the room; illegally obtained evidence may be considered; systematic exclusion of a racial group is a ground to dismiss.
• Prosecutor must disclose material exculpatory evidence (Brady); the defense must give notice of alibi or insanity defenses.
• Speedy trial factors: length of delay, reason, assertion of the right, prejudice. Remedy is dismissal with prejudice.
• Competency to stand trial: rational and factual understanding and ability to assist counsel; trial is postponed until competency returns.

6. Trial Rights

• Public trial; impartial judge (no financial stake or actual bias); proof beyond a reasonable doubt; prosecutor may not comment on the defendant's silence.
• Jury: right applies when imprisonment could exceed six months. Juries must have at least six members and a six-person jury must be unanimous; jury pool must be a fair cross-section; peremptory strikes based on race or gender are barred (burden-shifting test).
• Counsel: appointed for any case where imprisonment is actually imposed; right to self-representation if waiver is knowing and the defendant is competent; ineffective assistance requires deficient performance plus a reasonable probability of a different result.
• Confrontation: testimonial hearsay from an absent witness is barred unless the declarant is unavailable and was previously cross-examined. A non-testifying co-defendant's confession implicating the defendant cannot be used at a joint trial unless redacted.

7. Pleas and Sentencing

• Guilty plea must be knowing, voluntary, and intelligent; the judge must explain the charge, the rights waived, and the possible sentence. A plea may be attacked later only for involuntariness, lack of jurisdiction, ineffective counsel, or breach of the bargain.
• Prosecutors must honor plea bargains; judges are not bound by them.
• Any fact that raises the maximum sentence must be found by a jury beyond a reasonable doubt.
• No harsher sentence after a successful appeal and retrial without justification based on new conduct.
• Death penalty: individualized sentencing with all mitigating evidence; barred for those under 18 at the time of the crime, those with intellectual disability, and for crimes against individuals short of death where the victim survives.

8. Double Jeopardy

• Attaches when the jury is sworn (jury trial) or the first witness is sworn (bench trial).
• Same offense: Blockburger test, each offense needs an element the other lacks. Greater and lesser included offenses are the same offense, except where the greater charge could not be brought earlier (victim later dies).
• Retrial allowed after a hung jury, mistrial for manifest necessity, successful defense appeal (except for insufficient evidence), or breach of a plea bargain.
• Separate sovereigns (state and federal) can each prosecute; a state and its city cannot.
• Civil proceedings do not trigger double jeopardy.

9. Privilege Against Self-Incrimination

• Protects only compelled testimonial communications by a person; not physical evidence, handwriting, or voice samples, and not the production of existing business records.
• Invoked question by question by non-defendants. Use and derivative-use immunity can compel testimony.
• Prosecutors may not comment on a defendant's refusal to testify.

10. Post-Conviction

• No federal constitutional right to appeal, but counsel is guaranteed on a first appeal as of right. Habeas corpus is a collateral attack with no right to appointed counsel.

Master Outline Add-On: Criminal Law and Procedure

• Elements. Liability requires a voluntary act or qualifying omission, the required mental state, concurrence, and causation where relevant. Exam cue: Distinguish purpose, knowledge, recklessness, and negligence.
• Homicide. Murder and manslaughter turn on mental state, provocation, recklessness, and statutory or common-law elements. Exam cue: Analyze felony murder separately.
• Inchoate offenses. Attempt needs intent plus a substantial step; conspiracy needs agreement and intent, plus an overt act in many jurisdictions. Exam cue: Check withdrawal and merger.
• Defenses. Self-defense, duress, insanity, intoxication, and mistake each have distinct requirements and limits. Exam cue: Deadly-force and initial-aggressor rules matter.
• Search and seizure. The Fourth Amendment bars unreasonable searches and seizures; warrants need probable cause, with established exceptions. Exam cue: Walk through standing, search, warrant, exception, remedy.
• Miranda. Custodial interrogation requires warnings before statements are used in the prosecution's case-in-chief; invocation and waiver rules apply. Exam cue: Custody and interrogation are separate inquiries.
• Counsel and identification. Sixth Amendment counsel attaches after formal adversarial proceedings and is offense-specific; identification procedures can raise due process issues. Exam cue: Keep Fifth and Sixth Amendment counsel rights separate.
• Exclusion. Suppression may follow unconstitutional collection, subject to attenuation, independent source, inevitable discovery, and good faith. Exam cue: Address derivative evidence and each exception.

Self-test: For each topic above, recite the elements, name one exception, and write a two-sentence fact application.

Essay checklist: parties and claims; governing authority; elements; exceptions and defenses; burden; remedy; strongest opposing argument.