Criminal Law & Procedure

Criminal Law

Requires an act coupled with a mental state

Actus Reus - Guilty Act1. Must committed in violation of some proscribed behavior - usually statutory2. Omission - only where person had a legal duty to act (failure to file tax returns)3. Guilty thoughts not punishable - even speaking or threatening to commit a crime is no punishable

Mens Rea - Wrongful Intent1. Requisite mental state necessary to establish guilt is specified in the applicable statute2. Mental StatesPurposefully/Intentionallya. intends to bring about a certain criminal objective/ resultb. engages in certain criminal conduct accomplishing that objective or cause a certain criminal resultKnowinglya. conscious belief or awareness of the illegality of the conductb. willful blindness - suspect the criminal conduct exists but fails to confirm itRecklesslya. consciously disregards a substantial and unjustifiable riskb. usually requires a subjective belief that the risk existed when engaging in the actNegligently (not to be confused with Tort Law)a. grossly deviates from the standard of care that a reasonable person would use under the same circumstancesb. action takes an unjustified, substantial, and foreseeable risk resulting in harm3. Transferred Intent(1) Unintended Victimi. intended result happens to an unintended victimii. A aims gun at B with intent to kill B, shoots and misses killing Ciii. A guilty of murdering C(2) Unintended Manneri. intended result happens to intended victim but in an unintended mannerii. A aims gun at Bs heart with intent to kill B, shoots and hits B in the head killing himiii. A guilty of murdering B(3) Unintended Degree of Harmi. intended result does not happen but instead, a different degree of unintended harm happens to intended victimii. A hits B with a stick intending to injure B, but kills B insteadiii. A still guilty of killing B, although probably under a recklessness theory(4) Unintended Type of Harmi. intended result does not happen and instead, a different type of unintended harm happens (either to the intended victim or a different victim)ii. A throws rock at B with intent to injure B but misses, accidentally breaking Bs (or Cs) windowiii. problem holding A guilty because no mens rea to cause a different type of crime (concurrence required between mens rea and resulting harm)

Corporate Criminal LiabilityCorporations1. Crimes committed by agents or employees acting within the course and scope of their employment2. Failing to perform a specific affirmative duty required by law Crimes authorized, requested, commanded, committed, or recklessly tolerated by the firms president, directors, officers or high level managerial agents3. Corporate entity itself cannot form intent and cannot be imprisoned, but can be fined and/ or have licenses to operate suspended or revoked.

Presidents, directors, officers & high level managerial agents1. Responsible Corporate Officer doctrine: personally liable even in the2. Absence of direct supervision, participation or knowledge of criminal violation, if:a. they have a reasonable relationship to the corporation, andb. had the power to prevent the criminal violationsee United States v Hanousek, (11th edition, p. 207)

Criminal Procedure

Fourth Amendment - Search and Seizure

Reasonable Expectation of Privacy - intentional governmental action(a) (search) - invading a persons personal space, area or property(b) (seizure = arrest) - restricting/ terminating a persons personal freedom(c) levels of intrusion - People v DeBour, 40 NY2d 210, 386 NYS2d 375 (1976) - the crucial factor is whether or not the police behavior can be characterized as reasonable which, in terms of accepted standards, requires a balancing of the interests involved in the police inquiry (People v Ingle, 36 218 NY2d 413, 419, supra.; Terry v Ohio, 392 US 1, 20-21, supra.; Camara v Municipal Ct, 387 US 523, 536- 537; People v Cantor, 36 NY2d 106, supra.; People v Kuhn, 33 NY2d 203, 209).(i) Request for Information1) objective credible reason for approach2) no indication of criminal activity required(ii) Common Law Right of Inquiry1) founded suspicion that criminal activity is afoot2) interfere with citizen to gain explanatory information for a brief period of time(iii) Forcible Stop and Detention1) demand explanation of persons conduct2) reasonable suspicion to belief person is, has or about to commit a crime3) longer period of detention to investigate4) may frisk and search for weapons within grab area or otherwise in plain view(iv) Formal Arrest1) probable cause2) arrest without warrant in public is okay3) arrest in home/residence without warrant is not okay absent exigent circumstances, hot pursuit or consent

Probable CauseRequires specific, objective, articulable facts that:1. reasonably likely that crime was committed2. reasonably likely that perpetrator committed it

1. Must be ordered by judge authorizing the search or seizure2. Reasonable cause to believe a search will reveal a specific illegality3. Requires law enforcement to have credible (trustworthy) evidence that would convince a reasonable person that the search is more likely justified than not(i) may include factors such as furtiveness, nervousness, high crime area, fear, time of day(ii) more than 50%(iii) not whether evidence of guilt beyond a reasonable doubtSearch Warrants1. Protects the right of the people to be secure in their persons, hhouses, papers, and effects2. Applies to law enforcement officers seeking to search and seize private property3. Must be ordered by judge authorizing the search or seizure4. Search without specific description of that which is to be searched and seized prohibited - warrants must be specificExceptions:1. exigent circumstances2. grab area - fear of officers safety3. plain view - because no expectation of privacy exists4. inventory - usually automobile stops

Business Related SearchesWarrant required for: Government Inspections by administrative agencies to ensure regulatory compliance, andBusiness records possessed by lawyers and accountants

Lower standard of probable cause - whatever that meansgeneral and neutral enforcement plan will justify issuance of warrant

No warrant required for: Highly regulated industries such as liquor, tobacco, guns, spoiled/ contaminated foodMaintaining a safe workplace without violating 4th Amendment - very few guidelines; random drug testing?Arguably can be more intrusive because not law enforcement officials

Fifth Amendment Right Against Self-Incrimination

No person shall be compelled in any criminal case to be a witness against himself- in federal proceedings

Protection extends only to natural persons, not business partnerships & corporations (business corporations & partnerships are legal entities (See, Verniero v Beverly Hills Ltd, Inc); such records business records of are not protected and must be produced when required - even if they incriminate persons constituting the business entity.

But note: Sole proprietors and sole practitioners who are not incorporated are protected and cannot be compelled to produce their business records they function in one capacity.

Double jeopardy - precludes multiple prosecutions for same crime

1. Does not preclude a civil prosecution for the same incident or occurrence2. But note that multiple criminal prosecutions are possible:a. different jurisdictions (state & federal)b. different charges relating to same transaction or occurrence (events/incident)3. Right attaches when the jury is sworn in or when first witness sworn if trial is a non-jury

Statements/ConfessionsVoluntariness1. Takes into consideration all factors and circumstances; not simply that rights werent given, i.e., whether suspect physically or psychologically pressured or coerced into making admission, such as sleep, food, bathroom deprivation, threats of or actual use of physical force, or prevented from seeing lawyer (Escobedo v Illinois, 84 S Ct 1758 [1964]).2. Concern also stems from inherent intimidation and pressures of police dominated environment.Custodial Interrogation (Miranda v Arizona)Rights:remain silent;any statement may be used against;right to counsel during questioning;right to have counsel free of charge.

Failure to administer to subject results in preclusion regardless of whether it was voluntarily madePurpose:1. demonstrate to the suspect that the police are willing to recognize the right to counsel if suspect chooses to2. because of the severity of custodial interrogation - the nature of it is that the circumstances act quickly to overbear the will of the suspect

Custody1. Whether a person, otherwise innocent of a crime, would have felt free to leave2. Restriction of natural freedom of movement3. Guns need not be drawn, handcuffs need not be applied, arrest need not be said4. Police intentions are a factor but not determinative

Interrogation1. Questions or statements designed to elicit an incriminating response2. Acceptable practices include:a. pedigreeb. spontaneous utterancesc. police statements inducing admissions may be okay depending on circumstances

Waiver of rights must be knowing & voluntarilyintelligently understand what they meanaware of the consequences of waiving - understand the significance of actions

Exceptions (federal, not New York):a. public safetyb. coerced provided that there is other evidence of guilt - discuss how much is enough?c. unequivocal request for lawyer in order to stop questioning suspect in custody asking maybe I should talk to a lawyer, do I need one? isnt an unequivocal request for counseld. spontaneous - if precluded, may use on cross examination of defendant (if testifies) to impeach credibility provided it wasnt the product of physical abuse (Harris rule)

Sixth Amendment Right to Counsel & Right to Trial by Jury

1. Right to Counsel begins when the criminal action is filed; entitled to counsel at all critical stage of the litigation;

2. Right to speedy trial, usually a specified statutory period of time but can be based on a lengthy, unexcused and unreasonable period regardless of any statutory period;

3. Trial must be open to public;

4. Right to confront witnesses against accused

5. No federal constitutional right to jury trial (many states do):a. civil cases;b. unanimous finding;c. any specific number of jurors.

Identification proceduresNo right to counsel unless already in custody and charged (then right to counsel automatically attaches)

Unduly suggestive:1. Show-ups, single photographic display, or highly dissimilar distinctive features of others to that of suspect so suspect stands out2. But mere confirmatory identifications or existence of exigent circumstances is permissible3. Line-up/photo array - No requirement that fillers in arrays/line-ups look exactly like the subject; only that they are similar enough so that any distinctive features do not stand out (which may suggest the subject).

Independent source:Where a basis for the identification of the defendant to otherwise be reliable, such as sufficient opportunity to have observed during commission of crime, previous or ongoing relationship, or previously knew individual, suggestiveness can be overcome.

Exclusionary Rule

Fruit of the Poisonous Tree doctrine:All evidence derived from illegally obtained evidence or arrest (4th, 5th & 6th Amendments) is inadmissible at trial

1.Philosophy is that evidence derived, fruit, is tainted by illegally obtained evidence or arrest2.Got off on a technicality understood to refer to non-prosecution notwithstanding defendants guilt3.Purpose is to provide severe measure to deter law enforcement from unlawful arrest, search & seizure and general police misconduct

Exceptions:

Attenuation rule - seizure is sufficiently separated from unlawful police conduct so as to eliminate taint

Inevitable discovery rule - would have been discovered anyway (inventory search, warrant not specifying property seized but was otherwise sufficient)