Complete subject outline

Criminal Law & Procedure outline for the bar exam

This outline covers Criminal Law and Procedure in two halves that the exam treats separately: the offenses and defenses, and the constitutional rules on investigation and trial. The first half runs from homicide through other offenses, inchoate crimes, parties and defenses; the second covers search and seizure, interrogation and trial rights. Each module gives the propositions to memorize, an attack sequence, the traps and exceptions, and a short worked application. The MBE asks 25 scored questions on the subject and it appears on the MEE. Reread this outline once you have already learned the basics unit by unit and want the whole subject in one continuous pass. Reread the procedure half slowly, because a single missed exception to the warrant requirement changes the answer, and the substantive half rewards naming the exact element the facts were built to test.

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Criminal Law & Procedure outline coverage by unit
Unit	Modules	Propositions
Foundations	1	5
Homicide	2	10
Offenses against persons	1	5
Property offenses	1	6
Inchoate liability	1	6
Complicity	1	5
Justification	1	6
Excuse and negation	1	5
Fourth Amendment	5	44
Statements	1	5
Trial rights	1	6
Finality	1	6
Criminal procedure	1	12
Accomplice and conspiracy liability	1	12
Statutory crimes	2	20
Fifth Amendment	1	10
Sixth Amendment	1	10
Constitutional protections of accused persons	1	10

01 · Foundations

Act, culpability, and causation

Criminal liability ordinarily requires a voluntary act or qualifying omission, the prescribed culpability, concurrence, and causation when a result is an element.

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Black-letter propositions

A voluntary movement or knowingly retained possession can satisfy the act requirement; status alone cannot.
An omission is punishable only when a legal duty, knowledge, and ability to act exist.
Model Penal Code culpability descends from purposely to knowingly, recklessly, and negligently; common-law offenses use their stated mental states.
Transferred intent can move an intended harm to an unintended victim for qualifying offenses.
Result crimes require actual and proximate causation; an unforeseeable superseding intervention can break the chain.

Attack sequence

1Match a mental state to every material element.

2Find a voluntary act or legal duty to act.

3Confirm concurrence.

4For result crimes, prove actual and proximate cause.

Traps and exceptions

!Strict liability must be clearly indicated.

!Ordinary medical negligence usually does not supersede a violent actor's causation.

!A factual mistake matters only if it negates the required mental state.

WORKED APPLICATION

A parent able to call for help knowingly leaves a dependent infant in medical distress, and the infant dies.

A parent has a legal duty to protect the child, so the omission can be the actus reus. The prosecution must still prove the required culpability and that timely aid would have prevented death.

Essay-ready formulationCriminal liability requires a voluntary act or duty-based omission accompanied by the prescribed mental state and, for a result crime, legal causation.

02 · Homicide

Murder and degrees

Common-law murder is an unlawful killing with malice aforethought, shown by intent to kill, intent to inflict serious injury, extreme recklessness, or felony murder.

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Black-letter propositions

Premeditated and deliberate killings are commonly first degree by statute; other malicious killings are second degree unless another category applies.
Depraved-heart murder requires extreme recklessness demonstrating indifference to human life.
Felony murder requires a qualifying independent felony and a death during and in furtherance of it, subject to agency, merger, causation, and duration limits.
A felony can continue through immediate flight until temporary safety.
The defendant takes the victim as found, but must legally cause the death.

Attack sequence

1Classify the homicide.

2Identify exact malice theory.

3For felony murder: felony, independence, timing, agency, and cause.

4Then test defenses and mitigation.

Traps and exceptions

!An assaultive felony that causes death often merges.

!Premeditation can be brief but requires actual reflection.

!Foreseeability is important but does not replace the jurisdiction's felony-murder limitations.

WORKED APPLICATION

During an armed robbery, an accomplice's gun accidentally fires and kills a customer.

Robbery is an independent dangerous felony and the death occurred during it. Felony murder is likely if the jurisdiction follows accomplice-caused death and ordinary causation rules.

Essay-ready formulationMurder is an unlawful killing with intent-to-kill, serious-injury, depraved-heart, or qualifying felony-murder malice, with degree rules layered on top.

03 · Homicide

Manslaughter and mitigation

Voluntary manslaughter mitigates an intentional killing for adequate provocation, while involuntary manslaughter commonly covers criminal negligence or a lesser unlawful act.

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Black-letter propositions

Traditional heat of passion requires objectively adequate provocation, actual provocation, no adequate cooling time, and no actual cooling.
Words alone traditionally are inadequate, though the tested jurisdiction may use a modern formulation.
MPC extreme emotional disturbance uses a broader reasonable-explanation standard.
Involuntary manslaughter can rest on gross or criminal negligence or misdemeanor manslaughter under local law.
Imperfect self-defense may mitigate murder where recognized.

Attack sequence

1Begin with murder and identify malice.

2Test every mitigation element.

3Distinguish common-law and MPC formulations.

4For unintentional death, compare recklessness, negligence, and felony murder.

Traps and exceptions

!Actual rage is insufficient without legally adequate provocation.

!Cooling defeats traditional mitigation even if anger persists.

!Civil negligence alone does not prove criminal homicide.

WORKED APPLICATION

A spouse discovers adultery, leaves for two days, then returns armed and kills the partner.

Two days ordinarily provide adequate cooling and indicate reflection, defeating traditional heat-of-passion mitigation even if the defendant remained angry.

Essay-ready formulationProvocation mitigates murder only when legally adequate, actually causal, and uncooled; lower culpability may instead support involuntary manslaughter.

04 · Offenses against persons

Assault, battery, confinement, and kidnapping

Person offenses require the act, injury or apprehension, mental state, and circumstances specified by common law or statute.

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Black-letter propositions

Battery is unlawful force causing bodily injury or offensive contact; aggravated forms add serious harm, a weapon, or protected victim.
Assault is attempted battery or intentional creation of reasonable apprehension of imminent battery.
False imprisonment is intentional unlawful confinement within boundaries; kidnapping generally adds significant movement or concealment.
Consent can negate some offenses but is limited by incapacity, coercion, fraud, and public policy.
Modern sexual offenses turn on statutory conduct, consent, capacity, force, and mental state; use supplied statutory language.

Attack sequence

1Identify exact conduct and mental state.

2Distinguish completed battery from both assault theories.

3For confinement, find boundaries, awareness or harm, and legal authority.

4Apply the supplied statute to sexual offenses.

Traps and exceptions

!Words can create assault when paired with immediacy and apparent ability.

!Future threats ordinarily lack imminence.

!Movement merely incidental to another offense may not satisfy kidnapping.

WORKED APPLICATION

A person points an unloaded gun at a victim who reasonably believes it is loaded and threatens to fire now.

The actor intentionally created reasonable apprehension of imminent harmful contact, supporting assault even though factual impossibility prevents a shooting.

Essay-ready formulationAssault can be attempted battery or intentional imminent apprehension; every other person offense requires its own statutory act, circumstance, and culpability.

05 · Property offenses

Theft offenses, robbery, burglary, and arson

Common-law property offenses are distinguished by possession, title, fraud, force, entry, and the timing of intent.

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Black-letter propositions

Larceny is trespassory taking and carrying away of another's personal property with intent permanently to deprive.
Embezzlement is fraudulent conversion by one in lawful possession; false pretenses obtains title by material fraud; larceny by trick obtains possession.
Robbery is larceny from a person or presence by force or intimidation.
Common-law burglary is breaking and entering another's dwelling at night with contemporaneous intent to commit a felony; modern statutes expand it.
Common-law arson is malicious burning of another's dwelling; charring traditionally suffices.
Continuing trespass can connect later intent to an originally wrongful taking.

Attack sequence

1Determine custody, possession, and title before the taking.

2Find when intent arose.

3Connect force to the taking for robbery.

4Apply common-law or statutory burglary and arson elements exactly.

Traps and exceptions

!Custody is not possession.

!An open-door entry may satisfy a statute but not common-law breaking without another theory.

!A claim of right can negate larcenous intent but has important limits.

WORKED APPLICATION

An employee entrusted with a company car for deliveries sells it and keeps the money.

The employee had lawful possession and later converted it, so embezzlement is the best common-law classification rather than larceny.

Essay-ready formulationClassify property offenses through possession, title, fraudulent method, force, entry, and the precise time intent to deprive arose.

06 · Inchoate liability

Attempt, solicitation, and conspiracy

Inchoate crimes punish purpose toward an offense, asking another to commit it, or unlawful agreement, with distinct act, merger, withdrawal, and impossibility rules.

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Black-letter propositions

Attempt requires specific intent plus dangerous proximity at common law or a substantial step strongly corroborative under the MPC.
Factual impossibility is not a defense; genuine legal impossibility may be.
Solicitation is complete upon encouraging with intent that the crime occur and ordinarily merges when the target crime is completed.
Conspiracy requires agreement, intent to agree, and intent to achieve the objective; modern law often adds an overt act.
Traditional conspirator liability can include foreseeable crimes in furtherance; modern statutes may require offense-specific complicity.
Withdrawal can end future liability but usually does not erase the completed conspiracy.

Attack sequence

1Identify target offense and specific intent.

2State the attempt act test.

3For conspiracy, identify agreement, bilateral or unilateral rule, overt act, and scope.

4Analyze merger, impossibility, and withdrawal separately.

Traps and exceptions

!Attempt to commit an unintended result crime requires careful mental-state analysis.

!Acquittal of one conspirator does not always defeat unilateral conspiracy.

!A late change of heart is not effective withdrawal from an attempt already complete.

WORKED APPLICATION

A buyer takes possession of sugar believing it is cocaine and intending to resell it.

Factual impossibility is no defense. Intent plus possession may be a substantial step and support attempt to possess drugs under the assumed facts.

Essay-ready formulationAttempt, solicitation, and conspiracy each require purpose toward a target offense plus the doctrine's act or agreement, with separate merger and withdrawal consequences.

07 · Complicity

Accomplice liability and withdrawal

An accomplice purposefully assists or encourages the principal and is liable for the target offense and any qualifying additional offenses under the jurisdiction's rule.

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Black-letter propositions

Mere presence or knowledge is ordinarily insufficient without purpose, a duty, or affirmative assistance.
Aid need not be necessary or successful.
Traditional natural-and-probable-consequences liability can extend to foreseeable additional crimes; modern statutes may require mens rea for each offense.
A person can be an accomplice despite incapacity to commit the principal offense personally.
Withdrawal requires timely repudiation and neutralizing prior aid or warning authorities when necessary.

Attack sequence

1Identify principal offense.

2Find assistance, encouragement, omission duty, or procurement.

3Prove intent to assist and required culpability for the offense.

4Analyze extra crimes and effective withdrawal.

Traps and exceptions

!Accessory after the fact is separate from complicity in the completed offense.

!A victim protected by the statute may be exempt from accomplice treatment.

!Knowledge can support an inference of purpose but does not automatically establish it.

WORKED APPLICATION

A driver gives a burglar a ride while merely knowing the plan and expressing no desire that it succeed.

Knowledge alone may not prove the purpose required for accomplice liability. Repeated assistance, payment, encouragement, or a stake in the venture could change the inference.

Essay-ready formulationAccomplice liability requires purposeful assistance before or during the crime and application of the jurisdiction's rule for additional offenses and withdrawal.

08 · Justification

Self-defense, defense of others, property, and necessity

Justification makes conduct lawful when reasonably necessary and proportionate to an imminent unlawful threat or greater harm.

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Black-letter propositions

Nondeadly force can meet imminent unlawful force when reasonably necessary.
Deadly force requires reasonable belief of imminent death or serious injury and is limited for an initial aggressor.
Most jurisdictions impose no retreat requirement, while others require safe retreat outside the home.
Defense of others generally uses reasonable appearances.
Deadly force ordinarily cannot protect property alone.
Necessity requires a greater imminent harm, causal efficacy, no adequate legal alternative, and ordinarily no culpable creation of the crisis.

Attack sequence

1Identify imminence and unlawfulness.

2Classify response as deadly or nondeadly.

3Test subjective belief and objective reasonableness.

4Check aggressor and retreat.

5For necessity, compare harms and alternatives.

Traps and exceptions

!Future revenge is not defense.

!Words alone usually do not justify physical force.

!An unreasonable belief may mitigate only where imperfect self-defense is recognized.

WORKED APPLICATION

A homeowner shoots a fleeing trespasser solely to prevent loss of a garden tool.

Deadly force is disproportionate because only property is threatened. Reasonable nondeadly force may be permitted subject to warning and local rules.

Essay-ready formulationJustification depends on imminence, reasonableness, proportionality, aggressor and retreat limitations, and lack of adequate lawful alternatives.

09 · Excuse and negation

Insanity, intoxication, duress, mistake, and entrapment

Excuse and mens-rea defenses focus on capacity, coercion, culpability, or government inducement rather than making the act lawful.

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Black-letter propositions

Insanity tests include M'Naghten cognitive incapacity, irresistible impulse, MPC substantial capacity, and federal cognitive formulations.
Voluntary intoxication may negate specific intent but generally not malice, recklessness, negligence, or general intent; involuntary intoxication can resemble insanity.
Duress traditionally requires imminent threat of death or serious injury, reasonable fear, and no safe escape; common law limits its use for homicide.
Reasonable mistake can negate general intent, while any honest mistake can negate specific intent if it defeats that intent.
Subjective entrapment requires government inducement and lack of predisposition; objective formulations focus on improper police methods.

Attack sequence

1Classify offense mental state.

2Choose stated insanity or entrapment test.

3Connect intoxication or mistake to an exact element.

4For duress, find threat, immediacy, alternatives, and offense limits.

Traps and exceptions

!Mental illness is not automatically legal insanity.

!Voluntary intoxication is no defense to recklessness.

!Private inducement is not government entrapment.

WORKED APPLICATION

A person honestly but unreasonably believes a suitcase is his and takes it.

Larceny's specific intent to deprive another is absent if the ownership belief is honest, even if unreasonable.

Essay-ready formulationExcuse and mistake defenses must be matched to the offense's precise mental state and the jurisdiction's stated capacity, coercion, or inducement test.

10 · Fourth Amendment

Searches, seizures, warrants, and personal rights

The Fourth Amendment regulates unreasonable government searches and seizures where the defendant personally has a reasonable privacy expectation or protected property interest.

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Black-letter propositions

Purely private searches are outside the Amendment unless the private actor is a government agent.
A search can be a trespass into a protected area to obtain information or a violation of reasonable privacy.
A person is seized by physical force or submission to authority; property by meaningful interference.
A warrant requires probable cause, particularity, a neutral magistrate, and proper execution.
Suppression belongs only to the person whose rights were violated, not anyone harmed by use of evidence.

Attack sequence

1Identify government actor.

2Find search or seizure and its exact moment.

3Identify defendant's personal interest.

4Test warrant cause, particularity, neutrality, and execution.

5Then analyze exception and remedy.

Traps and exceptions

!Fourth Amendment rights are personal.

!Open fields are distinct from curtilage.

!Presence at the searched place or ownership of seized evidence alone may not establish a privacy interest.

WORKED APPLICATION

Police enter a friend's home without a warrant and seize a visitor's abandoned bag from a shared hall.

The visitor must prove a personal protected interest in the place or bag at the time. Mere presence and later prosecution are insufficient.

Essay-ready formulationFourth Amendment analysis starts with government action, a search or seizure, and the defendant's own protected interest before warrant, exception, and exclusion.

11 · Fourth Amendment

Warrant exceptions and police encounters

Warrantless searches are presumptively unreasonable unless a specific exception applies, and street encounters require the cause level matching their restraint.

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Black-letter propositions

Consent must be voluntary and within actual or apparent authority.
Search incident to lawful arrest reaches the arrestee and immediate control area, with special vehicle rules.
Vehicle searches may rest on probable cause, arrest-related grounds, inventory policy, or consent, each with distinct scope.
Exigency includes emergency aid, hot pursuit, and imminent evidence destruction not impermissibly police-created.
Terry permits a brief stop on reasonable suspicion and a frisk only on separate suspicion of armed dangerousness.
Plain view requires lawful vantage and access and immediately apparent incriminating character.

Attack sequence

1Classify consensual encounter, stop, or arrest.

2State cause level when action occurred.

3Name one exact exception and its scope.

4Analyze duration, manner, and later search separately.

Traps and exceptions

!A valid traffic stop does not automatically justify frisk.

!Probable cause to search a car does not automatically allow search of a passenger's body.

!Inventory requires standardized noninvestigatory criteria.

WORKED APPLICATION

An officer stops a driver for speeding and frisks him solely because traffic stops can be dangerous.

The stop is valid, but the frisk needs individualized reasonable suspicion that the driver is armed and dangerous. General danger alone is insufficient.

Essay-ready formulationEach warrant exception has its own cause level, justification, scope, and duration; a lawful seizure does not automatically authorize a search.

12 · Statements

Miranda, voluntariness, and counsel

Use of a defendant's statements depends separately on due-process voluntariness, Miranda custodial interrogation, and the offense-specific Sixth Amendment right to counsel.

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Black-letter propositions

Miranda applies to custody plus interrogation or its functional equivalent; volunteered statements and routine booking questions usually fall outside.
Waiver must be knowing, intelligent, and voluntary; silence and counsel invocations have distinct reinitiation rules.
The Sixth Amendment attaches after formal adversarial proceedings and bars deliberate elicitation about the charged offense without counsel or waiver.
Sixth Amendment protection is offense specific; Miranda counsel protection is not.
Coerced statements receive broader exclusion than unwarned but voluntary statements, whose physical fruits may be treated differently.

Attack sequence

1Identify statement and government actor.

2Was there custody and interrogation?

3Were warnings, waiver, or invocation valid?

4Had charges attached and was there deliberate elicitation?

5Classify violation for use and fruits.

Traps and exceptions

!An undercover listener ordinarily does not conduct Miranda interrogation because perceived police coercion is absent.

!Post-charge counsel rights do not automatically cover uncharged unrelated offenses.

!A statement violating Miranda may sometimes impeach; an involuntary statement may not.

WORKED APPLICATION

After indictment for burglary, an undercover informant deliberately prompts the jailed defendant to discuss that burglary.

Miranda may not apply because the defendant does not know the questioner is police, but deliberate elicitation about the charged crime violates the attached Sixth Amendment right.

Essay-ready formulationStatements require separate voluntariness, Miranda custody-interrogation, and post-charge Sixth Amendment deliberate-elicitation analyses.

13 · Trial rights

Identification, disclosure, confrontation, jury, and counsel

Constitutional procedure protects reliable identification, disclosure of material favorable evidence, effective counsel at critical stages, confrontation, and an impartial jury.

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Black-letter propositions

Police-arranged identification violates due process when unnecessarily suggestive and substantially likely to misidentify under total circumstances.
Post-charge lineups are critical stages for counsel; photo arrays ordinarily are not.
The prosecution must disclose material exculpatory and impeachment evidence known to its team regardless of good faith.
Ineffective assistance ordinarily requires deficient performance and a reasonable probability of a different result.
Testimonial statements from unavailable witnesses generally require prior cross-examination, subject to forfeiture.
Serious offenses trigger jury trial; cross-section and race- and sex-neutral selection protections apply.

Attack sequence

1Identify procedural stage and attached right.

2Apply suggestiveness plus reliability to identification.

3For disclosure, find favorability, suppression, and materiality.

4For counsel, prove performance and prejudice.

5For confrontation, classify testimonial character and cross opportunity.

Traps and exceptions

!Hearsay admissibility does not itself satisfy confrontation.

!A defendant has no right to jurors of a particular demographic, only lawful selection.

!Arrest or bad faith is not required for a disclosure violation.

WORKED APPLICATION

The prosecution withholds a witness's prior identification of another person in a case turning on identity.

The statement is favorable and potentially material. Suppression violates due process if there is a reasonable probability disclosure would have changed the result.

Essay-ready formulationCriminal adjudication requires fair identification, disclosure of material favorable evidence, effective counsel, confrontation of testimonial accusers, and an impartial lawfully selected jury.

14 · Finality

Double jeopardy, pleas, and punishment

Double jeopardy bars repeated prosecution or multiple punishment for the same offense after attachment, subject to sovereign, mistrial, appeal, and greater-lesser rules.

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Black-letter propositions

Jeopardy attaches when a jury is sworn or the first bench-trial witness is sworn.
Offenses are the same unless each requires proof of a fact the other does not, subject to legislative intent.
A hung jury permits retrial; a prosecution-requested mistrial needs manifest necessity, while defendant-requested mistrial usually permits retrial absent intended provocation.
A reversal for insufficient evidence bars retrial; reversal for trial error usually does not.
A plea must be knowing, voluntary, and intelligent with competent counsel and awareness of nature and direct consequences.
The Eighth Amendment limits grossly disproportionate punishment and uses heightened capital rules.

Attack sequence

1Identify sovereign, charges, and history.

2Find attachment and termination.

3Compare statutory elements.

4Analyze mistrial or appeal exception.

5For plea, examine colloquy, voluntariness, basis, and counsel.

Traps and exceptions

!Same conduct can support distinct offenses.

!States and the federal government are separate sovereigns; a state and its municipalities are not.

!Government generally cannot appeal an acquittal even if legally wrong.

WORKED APPLICATION

A conviction is reversed because the evidence was legally insufficient, and the state seeks a second trial.

Retrial is barred because insufficiency is equivalent to acquittal. Ordinary trial error would allow retrial.

Essay-ready formulationDouble jeopardy protection turns on attachment, termination, same-offense elements, sovereign identity, and the reason a first proceeding ended.

15 · Fourth Amendment

Consent, vehicle searches, and the good-faith exception to the exclusionary rule

Police may search without a warrant with valid consent, may search a car and its containers on probable cause, and may search a car incident to arrest only in limited cases, and evidence found by officers who reasonably rely on an invalid warrant is usually not suppressed.

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Black-letter propositions

When the subject of a search is not in custody and the state relies on consent, it must show that the consent was in fact voluntary, and voluntariness is determined from the totality of the surrounding circumstances (Schneckloth v. Bustamonte).
Knowledge of the right to refuse consent is a factor in the voluntariness inquiry, but the state need not prove that the person giving permission knew of the right to withhold consent.
Consent to search may be given by a third party who possesses common authority over, or another sufficient relationship to, the premises or effects to be inspected (United States v. Matlock).
A physically present co-occupant's stated refusal to permit entry renders a warrantless entry and search unreasonable and invalid as to that person, even though another occupant consented (Georgia v. Randolph).
Police may search a container within an automobile without a warrant if they have probable cause to believe that it holds contraband or evidence, and the rule of Carroll v. United States governs all automobile searches (California v. Acevedo).
Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest (Arizona v. Gant).
The search-incident-to-arrest exception applies only to the area from within which the arrestee might gain possession of a weapon or destructible evidence.
The exclusionary rule does not bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but later found invalid (United States v. Leon).
Suppression remains an appropriate remedy if the magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for reckless disregard of the truth.
Suppression remains appropriate if the issuing magistrate wholly abandoned the detached and neutral judicial role, or if the affidavit was so lacking in indicia of probable cause that belief in its existence was entirely unreasonable.
Suppression remains appropriate if the warrant is so facially deficient, such as in failing to particularize the place to be searched or the things to be seized, that the executing officers cannot reasonably presume it to be valid.
The exclusionary sanction is a judicially created remedy that is applied by weighing the costs and benefits of preventing the use of inherently trustworthy tangible evidence, and its application should continue where a Fourth Amendment violation has been substantial and deliberate.

Attack sequence

1For consent, ask whether it was voluntary under the totality of circumstances and who gave it.

2For a shared home, ask whether the consenting person had common authority and whether a present co-occupant refused.

3For a car, ask whether police had probable cause to search the vehicle or a container, or whether they rely on arrest.

4For a defective warrant, check whether the officers' reliance was objectively reasonable under one of the four Leon exceptions.

Traps and exceptions

!The police need not tell a person that he may refuse consent, though this is a factor in voluntariness.

!A present co-occupant's refusal defeats consent by another occupant as to the refusing person.

!A search of a car incident to arrest is allowed only if the arrestee could reach the car or the car holds evidence of the offense of arrest.

WORKED APPLICATION

Officers arrest a driver for a traffic offense, handcuff him, and place him in a patrol car. They then search the passenger compartment of his car. The offense of arrest was a minor traffic violation.

The arrestee cannot reach the car, and it is not reasonable to believe the car contains evidence of a minor traffic offense, so the search is not justified as incident to arrest under Gant.

Essay-ready formulationIdentify the exception, apply its limits, and separately ask whether the exclusionary rule still bars the evidence under Leon.

16 · Criminal procedure

Prosecutor disclosure, the reasonable-doubt standard, harmless error, and race-based jury strikes

Due process requires the prosecution to disclose material evidence favorable to the accused, to prove guilt beyond a reasonable doubt, and to avoid race-based jury strikes, and constitutional trial error is reviewed for harmlessness beyond a reasonable doubt.

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Black-letter propositions

Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution (Brady v. Maryland).
The prosecution's duty to present all material evidence to the jury includes evidence bearing on a key witness's credibility, such as a promise of leniency in return for testimony, and it is not excused because the trial prosecutor did not know of the promise (Giglio v. United States).
A prosecutor does not violate the constitutional duty of disclosure unless the omission is sufficiently significant to result in the denial of the defendant's right to a fair trial, and the Constitution does not demand discovery of everything that might influence a jury (United States v. Agurs).
Proof beyond a reasonable doubt, required by the Due Process Clause in criminal trials, is among the essentials of due process and fair treatment required during the adjudicatory stage when a juvenile is charged with an act that would be a crime if committed by an adult (In re Winship).
Before a constitutional error can be held harmless, the court must be able to declare its belief that it was harmless beyond a reasonable doubt, and the state bears the burden of showing this (Chapman v. California).
A prosecutor's comment on the defendant's failure to testify, and a jury instruction allowing an adverse inference from it, violate the Fifth Amendment, and the state must show that this error did not contribute to the conviction.
The Equal Protection Clause forbids a prosecutor from using peremptory challenges to exclude jurors on account of race (Batson v. Kentucky).
A defendant makes a prima facie case of purposeful discrimination in jury selection by showing that he is a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to remove members of that group from the jury, and that these facts and other relevant circumstances raise an inference of discrimination.
Once the defendant makes a prima facie showing, the burden shifts to the state to come forward with a neutral explanation for challenging the jurors.
The prosecutor may not rebut a prima facie showing by stating that he challenged the jurors on the assumption that they would be partial to the defendant because of their shared race, or by affirming his good faith in individual selections.
A defendant may establish a prima facie case of purposeful discrimination solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's own trial.
Batson does not require the defendant to show that the prosecutor engaged in a pattern of race-based strikes across multiple prior cases.

Attack sequence

1Ask whether the evidence is favorable to the accused and material to guilt or punishment, and whether the prosecution suppressed it.

2For impeachment evidence about a prosecution witness, check for promises or deals and remember that the trial prosecutor's ignorance is no defense.

3For a claim of trial error, ask whether the state can show harmlessness beyond a reasonable doubt.

4For a jury strike, run the Batson steps: prima facie showing, neutral explanation, and the court's ruling.

Traps and exceptions

!Good faith or bad faith of the prosecutor does not decide whether suppression of material favorable evidence violates due process.

!The burden of showing that constitutional error was harmless is on the state, and the standard is beyond a reasonable doubt.

!A prosecutor cannot rebut a Batson showing by asserting that he acted in good faith or by relying on race-based assumptions.

WORKED APPLICATION

A prosecutor promises a key witness a reduced sentence in exchange for testimony, and the trial prosecutor, unaware of it, tells the jury there were no deals. The defendant learns of the promise after conviction.

The undisclosed promise bears on the witness's credibility, and the prosecution's duty applies even though the trial prosecutor did not know, so the conviction violates due process under Giglio if the evidence was material.

Essay-ready formulationIdentify which trial right is invoked, state the test for it, apply the burden, and check whether the error was harmless beyond a reasonable doubt.

17 · Accomplice and conspiracy liability

Conspiracy, Pinkerton liability, accessories, and mistake of law

A conspirator can be punished for the conspiracy and for the crimes of coconspirators committed in furtherance of it, an accessory after the fact is punished separately, and a good-faith mistake about the law can negate willfulness only when the statute requires knowledge of the legal duty.

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Black-letter propositions

Under the federal conspiracy statute, if two or more persons conspire to commit an offense against the United States, or to defraud the United States, and one or more of them does any act to effect the object of the conspiracy, each is subject to punishment.
Where an indictment charges both a conspiracy to engage in a course of criminal conduct and substantive offenses committed pursuant to it, the substantive offenses do not merge into the conspiracy, and the accused may be punished for both without a double jeopardy bar (Pinkerton v. United States).
It is not material that the overt acts charged in the conspiracy count are also charged and proved as substantive offenses.
A party to a continuing conspiracy may be responsible for substantive offenses committed by a coconspirator in furtherance of the conspiracy, even though he did not participate in the substantive offenses or know of them (Pinkerton).
Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
Whoever willfully causes an act to be done that would be an offense if directly performed by him or another is punishable as a principal.
An accessory after the fact is a person who, knowing an offense has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent the offender's apprehension, trial or punishment.
An accessory after the fact is generally punished by imprisonment of not more than one-half the maximum term prescribed for the principal, or not more than 15 years if the principal is punishable by life imprisonment or death.
Where a statute requires willfulness, meaning the voluntary, intentional violation of a known legal duty, a good-faith misunderstanding of the law or a good-faith belief that one is not violating the law negates willfulness, whether or not the belief is objectively reasonable (Cheek v. United States).
A defendant's belief that the law is unconstitutional is not a mistake about a legal duty that negates willfulness, and the jury should not consider it, because it reflects full knowledge of the provision and a disagreement with its validity.
In deciding whether to credit a claimed good-faith belief, the jury is free to consider any admissible evidence showing that the defendant knew his legal duties.
A mistake of law is not generally a defense, and the Cheek rule rests on the statute's requirement of willfulness for complex tax offenses.

Attack sequence

1Identify the agreement and any act taken to effect its object, and decide who joined the conspiracy.

2For a coconspirator's substantive crime, ask whether it was committed in furtherance of the conspiracy while the defendant was a member.

3For accessory liability, separate aiding before or during the crime from helping the offender after it.

4For a mistake-of-law claim, check whether the statute requires knowledge of the legal duty, and whether the claimed belief is about the duty or about validity.

Traps and exceptions

!A conspirator can be convicted of the conspiracy and the substantive offense, and double jeopardy does not bar both.

!Pinkerton liability reaches crimes done in furtherance of the conspiracy even when the defendant did not know of them.

!An honest but unreasonable belief can negate willfulness under Cheek, but a belief that the law is unconstitutional does not.

WORKED APPLICATION

Two friends agree to sell stolen goods across state lines, and one of them, without telling the other, commits an additional fraud to get supplies for the scheme.

The additional fraud was committed in furtherance of the conspiracy by a coconspirator, so under Pinkerton the other friend may be responsible for it even though he did not know of it.

Essay-ready formulationState the conspiracy elements, apply Pinkerton to substantive offenses by coconspirators, distinguish accessories after the fact, and address mistake of law under Cheek.

18 · Statutory crimes

Drug possession and distribution offenses, impaired driving, and death or injury by vehicle (federal statutes and North Carolina as the model)

Federal law separates knowing possession of a controlled substance from possession with intent to distribute and from distribution, and grades distribution penalties by drug and quantity, while impaired-driving statutes define the offense by driving plus impairment or a measured alcohol concentration, with more serious offenses when a death or injury results.

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Black-letter propositions

It is unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense a controlled substance, or to possess a controlled substance with intent to manufacture, distribute, or dispense it.
It is unlawful for any person knowingly or intentionally to possess a controlled substance unless it was obtained directly, or under a valid prescription or order, from a practitioner acting in the course of professional practice, or as the statute otherwise authorizes.
A first offense of simple possession under the federal statute carries up to one year of imprisonment and a minimum fine of $1,000, or both, and a prior drug conviction raises the minimum sentence to 15 days and the maximum to two years.
Distribution penalties depend on the drug and the quantity of a mixture or substance containing a detectable amount, so five kilograms or more of a cocaine mixture carries a term of not less than 10 years and not more than life, and 500 grams or more carries not less than five and not more than 40 years.
A violation involving a schedule I or II substance that does not reach the quantity tiers carries a term of not more than 20 years, and a higher minimum applies if death or serious bodily injury results from use of the substance.
In North Carolina a person commits impaired driving by driving a vehicle on a highway, street, or public vehicular area while under the influence of an impairing substance, or after consuming enough alcohol to have an alcohol concentration of 0.08 or more at any relevant time after the driving, or with any amount of a Schedule I controlled substance or its metabolites in the blood or urine.
A person charged with impaired driving cannot defend on the ground that the person was legally entitled to use the alcohol or drug.
The result of a chemical analysis is sufficient evidence to prove a person's alcohol concentration, and a person who submitted to a blood analysis may use the result in rebuttal.
In North Carolina a person commits felony death by vehicle by unintentionally causing a death while engaged in impaired driving where the impaired driving is the proximate cause of the death.
In North Carolina a person commits misdemeanor death by vehicle by unintentionally causing a death while violating a traffic law other than impaired driving where the violation is the proximate cause, and felony death by vehicle is aggravated when the impaired driver has a previous impaired-driving conviction within seven years.

Attack sequence

1Separate the conduct: simple possession, possession with intent, or distribution.

2Find the mental state, which the federal statutes state as knowingly or intentionally.

3Read the quantity and drug type against the statute's penalty tiers.

4For impaired driving, identify the place of driving, the impairment or measured concentration, and the timing.

5For a death or injury, apply the proximate-cause element and check whether the underlying offense was impaired driving.

Traps and exceptions

!Possession with intent to distribute is a separate and more serious offense than simple possession, and intent is usually shown by circumstances such as quantity and packaging.

!A lawful right to use a drug or alcohol is not a defense to impaired driving under the North Carolina statute.

!Death by vehicle needs proximate cause between the impaired driving and the death, and a death alone is not enough.

!A blood-test result taken after the driving still counts when the statute reaches concentration at any relevant time after the driving.

WORKED APPLICATION

Marcus is stopped for weaving and the officer smells alcohol. A chemical test taken 40 minutes later shows an alcohol concentration of 0.09. Marcus says he drank only after parking his car at home. He later loses control on a road and a passenger in another car dies.

Under the North Carolina statute, the concentration test asks whether he had 0.08 or more at any relevant time after the driving, and the chemical analysis is sufficient evidence. If the impaired driving proximately caused the death, felony death by vehicle applies, and any legal right to drink is not a defense.

Essay-ready formulationIdentify the offense, list its elements, and apply the statute's mental state, quantity or concentration, and causation requirements to the facts.

19 · Fourth Amendment

Fruit of the poisonous tree: independent source, inevitable discovery, attenuation, and knock-and-announce

The exclusionary rule bars primary evidence and its derivative fruits, but courts admit evidence that was found independently of the illegality, that would inevitably have been found lawfully, or whose link to the illegality is too attenuated, and a knock-and-announce violation alone does not require suppression.

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Black-letter propositions

The exclusionary rule covers primary evidence obtained as a direct result of an illegal search or seizure and also evidence later discovered and found to be derivative of the illegality, such as a statement made at the moment of an unlawful arrest or narcotics found because of that statement.
Exclusion is not automatic, because the rule applies only where its deterrence benefits outweigh its substantial social costs, and courts have recognized exceptions for independent source, inevitable discovery, and attenuation.
Under the independent source doctrine, evidence that was first discovered during an unlawful search but was later obtained independently from lawful activities untainted by the initial illegality is admissible.
A later warrant search is a genuinely independent source only if the officers' decision to seek the warrant was not prompted by what they saw in the illegal entry and the information from the entry was not presented to the magistrate in a way that affected the decision to issue it.
Under the inevitable discovery exception, evidence is admissible if the prosecution establishes by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.
The prosecution using inevitable discovery does not have to prove that the police acted in good faith, because the rule puts the government in the same position and not a better or worse one than if no illegality had occurred.
Under the attenuation doctrine, evidence is admissible when the connection between the unconstitutional police conduct and the evidence is sufficiently remote or has been interrupted by an intervening circumstance, and courts weigh the temporal proximity, the intervening circumstances, and the purpose and flagrancy of the official misconduct.
Discovery of a valid, preexisting, and untainted arrest warrant after an unlawful stop can attenuate the connection between the stop and evidence found in a search incident to the arrest when the officer's error was negligent and not flagrant.
The Fourth Amendment reasonableness inquiry includes the common-law knock-and-announce principle, but police may dispense with it when there is a threat of violence or a reasonable belief that evidence would be destroyed, and a blanket exception for felony drug investigations is not allowed.
A violation of the knock-and-announce rule does not require suppression of the evidence found in the search, because the rule protects life, property, and dignity and does not protect against the government seeing or taking evidence described in a warrant.

Attack sequence

1Identify the illegality and the evidence, and decide whether the evidence is primary or derivative.

2Ask whether a source independent of the illegality supplied the same evidence, such as a later warrant not prompted by the illegal entry.

3Ask whether the prosecution can show by a preponderance that lawful means would inevitably have found it.

4For attenuation, weigh timing, any intervening circumstance such as a valid warrant, and the purpose and flagrancy of the misconduct.

5For a knock-and-announce violation, ask what interest the rule protects and remember that suppression is not the remedy.

Traps and exceptions

!An officer's later valid warrant does not cure an illegal entry if the decision to get the warrant was prompted by what the officers saw inside.

!Inevitable discovery does not need proof that the police acted in good faith.

!A valid preexisting arrest warrant that surfaces after an unlawful stop can attenuate the taint when the misconduct was not flagrant.

!A knock-and-announce violation does not lead to suppression of what the warrant authorized the police to seize.

WORKED APPLICATION

Officers with no warrant enter a house, see stolen goods on a table, and leave without touching them. Hours later they obtain a warrant based only on information from an informant that they had before the entry, and they return and seize the goods.

The independent source doctrine can admit the goods because the later warrant search was genuinely independent, meaning the decision to seek the warrant was not prompted by the illegal entry and the entry information was not presented to the magistrate.

Essay-ready formulationName the illegality, classify the evidence as primary or derivative, then test the three exceptions in turn and state which rule applies to the facts.

20 · Fifth Amendment

Miranda: custody warnings, invoking rights, waiver, undercover agents, and Dickerson

Statements from custodial interrogation are admissible only if the police used the Miranda safeguards, a suspect must clearly invoke the right to counsel or to silence, a waiver can be implied from an understanding of the rights and a course of conduct, and undercover agents posing as fellow inmates need not give warnings.

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Black-letter propositions

The prosecution may not use statements from custodial interrogation unless it shows procedural safeguards effective to secure the privilege against self-incrimination, including warnings before questioning that the person has the right to remain silent, that anything said will be used against the person in court, that the person has the right to consult a lawyer and have the lawyer present during questioning, and that a lawyer will be appointed if the person cannot afford one.
If the suspect says before or during questioning that he wants to remain silent, the interrogation must cease, and if he says he wants an attorney the questioning must cease until an attorney is present.
Once a suspect has invoked the right to counsel, police may not interrogate him further until counsel has been made available unless he himself initiates further communication, and a later waiver cannot be established by showing only that he responded to police-initiated questioning after being warned again.
A suspect must invoke the right to counsel unambiguously, so a statement such as 'maybe I should talk to a lawyer' that a reasonable officer would understand only as a possible request does not require the police to stop questioning or to ask clarifying questions.
The right to remain silent must also be invoked unambiguously, so a suspect who is silent for long stretches of a custodial interview has not invoked the right, and a suspect who then answers a question after receiving and understanding the warnings has impliedly waived the right.
A waiver must be the product of a free and deliberate choice rather than intimidation, coercion, or deception and be made with a full awareness of the right being abandoned and the consequences of abandoning it, and the waiver may be implied from the suspect's understanding of the warnings together with a course of conduct indicating waiver.
A waiver is valid even if the police fail to tell the suspect that a lawyer retained by a family member is trying to reach him, because events outside the suspect's presence and unknown to him do not affect his capacity to understand and relinquish his rights.
An undercover officer posing as a fellow inmate need not give Miranda warnings before asking questions that may elicit an incriminating response, because the coercive atmosphere of a police-dominated interrogation is absent.
Miranda is a constitutional rule that governs the admissibility of statements made during custodial interrogation in both state and federal courts, and Congress may not overrule it by statute.
Where the suspect answers some questions during a custodial interrogation he has not waived the privilege for all questions and he may invoke the right to remain silent afterward.

Attack sequence

1Decide whether the suspect was in custody and was being interrogated, since both are needed for Miranda.

2Check whether the warnings covered silence, use of statements, the right to a lawyer, and appointed counsel.

3Ask whether the suspect invoked a right, and whether the invocation was clear enough for a reasonable officer.

4After an invocation, ask whether police-initiated questioning resumed without counsel and whether the suspect himself reopened the conversation.

5If there was no invocation, test the waiver for understanding and voluntariness, remembering that it can be implied.

Traps and exceptions

!An ambiguous reference to a lawyer does not stop questioning.

!Silence during questioning does not itself invoke the right to remain silent.

!An undercover officer posing as a fellow inmate is not required to give warnings.

!Police failing to tell a suspect that an attorney is trying to reach him does not invalidate a waiver of Miranda rights.

WORKED APPLICATION

A suspect in custody is warned and says he understands. For nearly three hours he says almost nothing, then answers 'yes' when asked whether he prayed for forgiveness for the shooting. He never said he wanted to stop or wanted a lawyer.

The suspect did not unambiguously invoke his right to silence, and by answering after understanding the warnings, with no coercion, he impliedly waived it. The statement is admissible.

Essay-ready formulationState the custody and interrogation requirements, then test invocation for clarity and waiver for understanding and voluntariness, and note the special rules for counsel invocation and undercover questioning.

21 · Sixth Amendment

Right to counsel: appointment, attachment, ineffective assistance, self-representation, and conflicts

The Sixth Amendment gives an accused the right to counsel in criminal prosecutions, which attaches at the start of adversary judicial proceedings, includes appointed counsel for an indigent felony defendant, guarantees effective assistance judged by deficient performance and prejudice, and lets a competent defendant waive counsel and represent himself.

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Black-letter propositions

An indigent defendant charged with a felony in a state court has a right to appointed counsel, which is fundamental to a fair trial and applies to the states through the Fourteenth Amendment.
The Sixth Amendment right to counsel attaches at the start of adversary judicial proceedings, and a defendant's initial appearance before a magistrate, where he learns the charge and his liberty is subject to restriction, triggers attachment without a prosecutor being involved.
The Sixth Amendment right does not apply to a police showup after arrest but before any formal charge, preliminary hearing, indictment, information, or arraignment.
After the right has attached, the government violates the Sixth Amendment when it deliberately elicits incriminating statements from the defendant in the absence of his attorney, and those statements may not be used against him at trial.
A claim of ineffective assistance requires the defendant to show that counsel's performance was deficient, meaning it fell below an objective standard of reasonableness, and that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.
Courts presume that counsel's conduct falls within the wide range of reasonable professional assistance, and prejudice means a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
Prejudice is presumed, without inquiry into counsel's actual performance, when the accused is denied counsel at a critical stage or when counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.
A defendant has an independent constitutional right to conduct his own defense without counsel when he voluntarily and intelligently elects to do so.
A trial court may decline a defendant's waiver of conflict-free counsel in a multiple-representation case, because courts have an independent interest in ensuring compliance with ethical standards and the appearance of fairness.
The right to counsel of choice, which a court may limit when a serious conflict of interest exists, is distinct from the right to effective assistance, which applies to appointed and retained counsel.

Attack sequence

1Ask whether adversary judicial proceedings have begun, since the Sixth Amendment right depends on attachment.

2Ask whether the government deliberately elicited statements after attachment and in the absence of counsel.

3For ineffective assistance, apply both prongs: deficient performance and a reasonable probability of a different result.

4Look for a presumed-prejudice situation such as no counsel at a critical stage or a complete failure to test the prosecution's case.

5For self-representation, ask whether the waiver of counsel was voluntary and intelligent, and for conflicts, ask whether the court may refuse a waiver.

Traps and exceptions

!The Sixth Amendment right does not attach at arrest, and it attaches at the initial appearance or another adversary judicial proceeding.

!A prosecutor need not know of the initial appearance for the right to attach.

!Losing a case or making a strategic mistake does not by itself show ineffective assistance, because both deficiency and prejudice must be shown.

!A defendant's waiver of a conflict does not bind the court, which may decline the waiver.

WORKED APPLICATION

A defendant is indicted and released on bail with a lawyer. Without telling him, federal agents get his cooperating co-defendant to wear a hidden transmitter and talk with him about the crime, and the agents use the recordings at trial.

The right to counsel had attached at indictment, and the agents deliberately elicited incriminating statements in the absence of his attorney, which violates the Sixth Amendment and makes the statements inadmissible against him.

Essay-ready formulationState when the right attaches, then analyze the government's conduct or counsel's performance under the correct test and note any presumption of prejudice.

22 · Constitutional protections of accused persons

Eyewitness identification: lineups, showups, voice and physical exemplars, and due process reliability

A post-indictment lineup is a critical stage at which the accused has a Sixth Amendment right to counsel, compelled lineup appearances and voice samples raise no Fifth Amendment problem, and due process excludes an identification only when police used an unnecessarily suggestive procedure that created a substantial likelihood of misidentification.

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Black-letter propositions

Requiring an accused to appear in a lineup, speak for identification, or exhibit his person is not testimonial compulsion, so it does not violate the Fifth Amendment privilege against self-incrimination.
A post-indictment lineup is a critical stage of the prosecution at which the accused is entitled to the aid of counsel under the Sixth Amendment.
The Sixth Amendment right to counsel does not extend to a showup after arrest but before adversary judicial proceedings begin, although due process still applies to it.
A due process violation from an identification procedure depends on the totality of the circumstances, and a one-person showup is widely condemned but not automatically unconstitutional.
Due process concerns arise only when law enforcement uses an identification procedure that is both suggestive and unnecessary, and even then suppression is not automatic.
Reliability is the linchpin in deciding whether a suggestive identification is admissible, and the factors are the witness's opportunity to view the criminal at the time of the crime, the degree of attention, the accuracy of the prior description, the level of certainty at the confrontation, and the time between the crime and the confrontation.
An identification is excluded when the suggestive procedure creates a very substantial likelihood of irreparable misidentification, and the court weighs the corrupting effect of the suggestive procedure against the reliability factors.
The Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when police did not arrange unnecessarily suggestive circumstances.
The Constitution protects a defendant against evidence of questionable reliability mainly by letting the defendant persuade the jury to discount it, through cross-examination and instructions, and it bars admission only when the evidence is so unfair that its admission violates fundamental conceptions of justice.
If an identification is admitted despite a suggestive pretrial procedure, the defendant can still challenge its weight before the jury.

Attack sequence

1Identify the procedure: lineup, showup, photo array, or a chance encounter not arranged by police.

2Ask whether adversary judicial proceedings had begun, which decides the Sixth Amendment right to counsel.

3Ask whether police arranged the procedure and whether it was suggestive and unnecessary.

4If it was, weigh the five reliability factors against the suggestiveness.

5Remember that compelled appearances and voice samples raise no Fifth Amendment problem.

Traps and exceptions

!A showup before formal charges does not trigger the Sixth Amendment right to counsel, but the Due Process Clause still limits suggestive showups.

!A suggestive procedure does not automatically lead to exclusion, because reliability can save the identification.

!An identification not arranged by police, such as a chance sighting, does not raise the same due process inquiry.

!Requiring a suspect to speak the words used by the robber is not compelled testimony.

WORKED APPLICATION

Police, after an indictment, hold a lineup in which the suspect is the only one who resembles the victim's description, and no lawyer is present. Weeks earlier, the victim saw the robber for several minutes in good light and gave an accurate description.

The post-indictment lineup is a critical stage, so the absence of counsel is a Sixth Amendment problem for the lineup identification, though the victim's in-court identification may still be admissible if it has an independent, reliable basis.

Essay-ready formulationSay which amendment protects the defendant at the identification stage, decide whether police procedures were suggestive and unnecessary, and apply the reliability factors.

23 · Fourth Amendment

Administrative and suspicionless searches: schools, checkpoints, borders, new technology, and community caretaking

Some searches and seizures are reasonable without a warrant or individualized suspicion, including school searches judged by reasonableness, certain checkpoints, and border searches, while thermal imaging of a home, GPS tracking, cell-site records, and cell-phone searches are searches that generally need a warrant, and community caretaking justifies vehicle inventories but not warrantless home entries.

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Black-letter propositions

The Fourth Amendment applies to searches by public school officials, but they need neither a warrant nor probable cause, and a student search is reasonable if it is justified at its inception, meaning reasonable grounds for suspecting evidence of a violation of law or school rules, and reasonably related in scope to the circumstances.
State-compelled collection and testing of urine is a search, and reasonableness is judged by balancing the intrusion on privacy against the government's interests, which allowed random drug testing of student athletes in the school's care.
A highway sobriety checkpoint that stops all vehicles is a seizure but is reasonable under a balancing test, but a checkpoint whose primary purpose is general crime control, such as detecting evidence of ordinary drug crimes, violates the Fourth Amendment.
A checkpoint that stops motorists to ask for help with information about a crime that others committed is constitutional, because its primary purpose is not to find whether occupants are committing a crime.
Border searches without probable cause or a warrant are reasonable, including routine searches of mail entering the country and of vehicles, and suspicion is not required to disassemble a vehicle's fuel tank at the border.
Using a device that is not in general public use, such as a thermal imager, to explore details of a private home that would previously have been unknowable without physical intrusion is a search that is presumptively unreasonable without a warrant.
Attaching a GPS tracking device to a vehicle and using it to monitor the vehicle's movements is a Fourth Amendment search, because the government physically intruded on an effect to obtain information.
Acquiring historical cell-site location records from a wireless carrier is a Fourth Amendment search that generally requires a warrant supported by probable cause, and the third-party doctrine does not automatically control.
The police generally may not search digital information on a cell phone seized from an arrestee without a warrant.
The community caretaking function of police justifies a warrantless search of an impounded vehicle for a firearm, but it does not justify warrantless searches or seizures inside a home.
A warrantless blood draw incident to a lawful arrest for drunk driving was reasonable when the officer reasonably believed there was an emergency, because alcohol in the blood dissipates and time was needed to bring the accused to a hospital and investigate the scene.

Attack sequence

1Decide whether the government conduct is a search or a seizure at all, especially with technology or third-party records.

2If it is, ask which recognized category applies: school, border, checkpoint, caretaking, or exigency.

3For a checkpoint, identify its primary purpose: roadway safety or border control versus general crime control.

4For technology, ask whether the tool is in general public use and whether the government physically intruded on an effect.

5If none of the exceptions applies, a warrant based on probable cause is generally required.

Traps and exceptions

!A public school official needs only reasonable grounds and not probable cause or a warrant to search a student.

!A checkpoint set up mainly to detect ordinary crime is unconstitutional even though it is brief and uniform.

!Border searches of vehicles do not need reasonable suspicion, but that does not mean every intrusive search of a person is allowed.

!Community caretaking is not an open-ended license to enter a home without a warrant.

WORKED APPLICATION

A school assistant principal, after a teacher says a student was seen smoking in the restroom, opens the student's purse and finds cigarettes and other evidence of drug dealing. The student moves to suppress in a delinquency proceeding.

A public school official may search a student without a warrant or probable cause if the search is justified at its inception and reasonable in scope. A report of a violation of school rules gave reasonable grounds, so the search was likely lawful.

Essay-ready formulationClassify the government's action, identify the exception or the general warrant requirement that applies, and apply its test to the facts.

24 · Statutory crimes

Homicide grading, felony murder, self-defense, and burdens of proof (North Carolina statutes and Supreme Court cases)

North Carolina divides murder into first and second degree, treats a killing in listed felonies as first-degree murder, and defines defensive force by reasonable belief of imminent death or great bodily harm, with no duty to retreat, unless the defender was committing a felony or provoked the fight, while the Constitution requires proof of elements beyond a reasonable doubt but lets a state place the burden of an affirmative mitigating defense on the defendant.

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Black-letter propositions

In North Carolina, a murder committed by poison, lying in wait, imprisonment, starving, torture, or any other willful, deliberate, and premeditated killing, or in the perpetration or attempted perpetration of arson, rape or a sex offense, robbery, kidnapping, burglary, or another felony committed with a deadly weapon, is first-degree murder.
In North Carolina, a murder that is not first-degree murder is second-degree murder.
A person is justified in using force other than deadly force when and to the extent that the person reasonably believes it necessary to defend himself or another against the other's imminent use of unlawful force.
A person is justified in using deadly force, with no duty to retreat in a place he or she has a lawful right to be, if he or she reasonably believes it is necessary to prevent imminent death or great bodily harm to himself, herself, or another.
A lawful occupant of a home, motor vehicle, or workplace is presumed to have held a reasonable fear of imminent death or serious bodily harm when using deadly force against a person who was unlawfully and forcefully entering, or had unlawfully and forcibly entered, if the occupant knew or had reason to believe the entry was occurring.
The presumption is rebuttable and does not apply when the person against whom force is used has the right to be in or is a lawful resident of the home, or is a child or grandchild in the occupant's custody, or when the defender is engaged in a criminal offense involving the use of the home.
The justification for defensive force is not available to a person who was attempting to commit, committing, or escaping after committing a felony, or who initially provoked the use of force against himself.
An initial provoker regains the justification if the force used against him becomes so serious that he reasonably believes he is in imminent danger of death or serious bodily harm, has no reasonable means to retreat, and deadly force is the only way to escape, or if he withdraws in good faith and clearly indicates the desire to end the fight but the other person continues.
The death penalty for a robber who did not kill, attempt to kill, or intend to kill or that lethal force be used is inconsistent with the Eighth Amendment, but a felony participant whose participation is major and whose mental state is reckless indifference to human life may be sentenced to death.
Due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime, so a state cannot require a homicide defendant to disprove heat of passion when that issue is properly raised as an element, but a state may require the defendant to prove an affirmative defense like extreme emotional disturbance by a preponderance.

Attack sequence

1Grade the homicide: identify premeditation and deliberation or a listed felony for first degree, and treat other murders as second degree.

2For felony murder, check that the felony is on the statute's list or is a felony committed with a deadly weapon.

3For defensive force, test the reasonableness of the belief in imminent death or great bodily harm and whether deadly force was necessary.

4Check the home, vehicle, or workplace presumption and its exceptions.

5Ask whether the defender was committing a felony or provoked the fight, which removes the justification unless an exception applies.

Traps and exceptions

!A killing during a listed felony is first-degree murder without proof of premeditation.

!A person with a lawful right to be in a place has no duty to retreat before using deadly force to prevent imminent death or great bodily harm.

!The presumption of reasonable fear does not apply against a lawful resident of the home.

!An initial provoker can regain defensive force only in the stated situations.

WORKED APPLICATION

Ana, a lawful occupant, wakes to find an intruder forcing open her bedroom door and, reasonably fearing for her life, shoots and kills him. The intruder was not a resident and she did not provoke him.

The presumption of a reasonable fear of imminent death or serious bodily harm applies because the occupant used defensive force against a person forcibly entering, so her use of deadly force is justified and she has no duty to retreat.

Essay-ready formulationGrade the homicide under the statute, then test any justification: reasonableness, imminence, necessity, the occupant presumption, and the felony and provocation exclusions.

QUICK ANSWERS

What NCBE lists for Criminal Law & Procedure

What does the homicide category include?+

Intended killings such as premeditation, deliberation and provocation, and unintended killings such as intent to injure, reckless and negligent killings, felony murder and misdemeanor manslaughter.

Which other crimes are listed?+

Theft and receiving stolen goods, robbery, burglary, assault and battery, rape and statutory rape, kidnapping, arson and possession offenses.

What inchoate crimes and party topics are in the outline?+

Attempts, conspiracy and solicitation, plus parties to crime. NCBE lists these together as category III of its five Criminal Law and Procedure categories.

What general principles does NCBE list?+

Acts and omissions, state of mind, responsibility, causation, justification and excuse, and jurisdiction. NCBE lists them as category IV, general principles.

What state of mind topics appear?+

Required mental state, strict liability, and mistake of fact or law. NCBE lists these under state of mind within the general principles category.

What does constitutional protection of accused persons include?+

Arrest, search and seizure, confessions and self-incrimination, identifications, right to counsel, fair trial and guilty pleas, double jeopardy, cruel and unusual punishment, burdens of proof and appeal and error.

Which responsibility topics are listed?+

Mental disorder and intoxication, listed under the responsibility heading of the general principles category, category IV of the five Criminal Law and Procedure categories.

Is felony murder in the outline?+

Yes. NCBE lists felony murder among unintended killings in the homicide category, next to misdemeanor manslaughter and reckless and negligent killings.

SOURCE DESK

Official NCBE sources

NCBE: MBE subject matter outline↗NCBE: preparing for the MBE↗

Governing text

The procedural half of this subject follows the Federal Rules of Criminal Procedure, published in full by the federal courts. Federal Rules of Criminal Procedure (U.S. Courts) ↗