You are viewing a preview of this lesson. Sign in to start learning
Back to U.S. Bar Exam

Criminal Law & Procedure

Master substantive crimes, defenses, and constitutional protections in criminal proceedings

Criminal Law & Procedure

Master criminal law and procedure with free flashcards and spaced repetition practice. This lesson covers elements of crimes, constitutional protections, and criminal procedure rulesβ€”essential concepts for the U.S. Bar Exam. Understanding the distinctions between different mental states, the Fourth Amendment's search and seizure protections, and the procedural safeguards afforded to defendants is crucial for success on the bar exam and in criminal practice.

Welcome to Criminal Law & Procedure βš–οΈ

Criminal law and procedure form the backbone of the American justice system. This comprehensive lesson will guide you through the substantive criminal law (what constitutes a crime) and criminal procedure (how the system processes criminal cases while protecting constitutional rights). Whether you're preparing for the bar exam or deepening your understanding of criminal justice, this lesson provides the foundational knowledge you need.

Core Concepts in Criminal Law πŸ›οΈ

Elements of a Crime

Every crime requires proof of specific elements. The prosecution bears the burden of proving each element beyond a reasonable doubt.

πŸ“‹ Basic Crime Formula

ElementDescription
Actus ReusThe guilty act (voluntary physical act or omission when there's a duty to act)
Mens ReaThe guilty mind (mental state/intent)
CausationThe act caused the result (actual and proximate cause)
ConcurrenceMental state existed at same time as the act

Actus Reus: The Guilty Act 🎭

The actus reus is the physical component of a crime. It must be a voluntary act or, in limited circumstances, an omission to act when there's a legal duty. Involuntary acts (reflexes, unconscious movements, acts during sleep) cannot form the basis of criminal liability.

Duty to Act exists in five situations:

  • Statutory duty (tax filing, reporting child abuse)
  • Special relationship (parent-child, spouse-spouse)
  • Contractual duty (lifeguard, caretaker)
  • Voluntary assumption (beginning rescue creates duty to continue)
  • Creation of peril (causing dangerous situation creates duty to help)

πŸ’‘ Tip: Remember "SSCVC" for duty situations: Statutory, Special relationship, Contractual, Voluntary assumption, Creation of peril.

Mens Rea: The Mental States 🧠

The mens rea represents the defendant's mental state. The Model Penal Code identifies four levels of culpability, ranked from most to least culpable:

Mental StateDefinitionExample
PurposelyConscious objective to cause the resultD shoots V intending to end V's life
KnowinglyAware that result is practically certainD sets fire to building, knowing people are inside
RecklesslyConscious disregard of substantial and unjustifiable riskD drives 90 mph through school zone
NegligentlyShould have been aware of substantial and unjustifiable riskD fails to check blind spot and hits pedestrian

🧠 Mnemonic: "PeKiN ReNe" (Pecking Rene) = Purposely, Knowingly, Negligently, Recklessly

Specific Intent Crimes require proof that the defendant had a particular purpose or objective. Common specific intent crimes include:

  • First-degree murder (premeditation and deliberation)
  • Assault (intent to commit battery)
  • Larceny (intent to permanently deprive)
  • Burglary (intent to commit felony inside)
  • Forgery (intent to defraud)
  • False pretenses (intent to defraud)
  • Robbery (intent to permanently deprive)
  • Embezzlement (intent to defraud)

🧠 Mnemonic: "FLAB-BARE" for specific intent crimes: Forgery, Larceny, Assault, Burglary, Burglary, Attempt, Robbery, Embezzlement

General Intent Crimes require only the intent to perform the act that constitutes the crime:

  • Battery
  • Rape (under majority rule)
  • Kidnapping
  • False imprisonment

Malice Crimes require reckless disregard of high risk:

  • Common law murder
  • Arson

Strict Liability Crimes require no mental state:

  • Statutory rape
  • Selling alcohol to minors
  • Administrative/regulatory offenses

Major Crimes: Definitions and Elements πŸ”

Homicide Offenses

Murder is the unlawful supplying with malice aforethought.

TypeMental StateCircumstances
First-Degree MurderPremeditation + deliberationPlanned in advance with cool mind
Second-Degree MurderMalice aforethought without premeditationIntent to cause serious harm, depraved heart
Felony MurderIntent to commit underlying felonyDuring commission of inherently dangerous felony
Voluntary ManslaughterIntent to end life but with adequate provocation"Heat of passion" that would provoke reasonable person
Involuntary ManslaughterCriminal negligence or misdemeanor-manslaughterReckless/negligent conduct causing demise

πŸ’‘ Felony Murder Rule: Demise caused during commission or flight from inherently dangerous felony. Remember "BARRK": Burglary, Arson, Robbery, Rape, Kidnapping.

Adequate Provocation for voluntary manslaughter requires:

  1. Provocation sufficient to arouse sudden and intense passion
  2. Defendant was actually provoked
  3. No time to cool off
  4. Defendant did not actually cool off

Property Crimes

Larceny: Trespassory taking and carrying away of personal property of another with intent to permanently deprive.

Embezzlement: Fraudulent conversion of property of another by one in lawful possession.

False Pretenses: Obtaining title to property of another by intentional false statement of past or existing fact with intent to defraud.

PROPERTY CRIME DISTINCTIONS

                 β”Œβ”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”
                 β”‚  Who has possession β”‚
                 β”‚   at beginning?     β”‚
                 β””β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”¬β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”˜
                            β”‚
          β”Œβ”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”΄β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”€β”
          β”‚                                   β”‚
     β”Œβ”€β”€β”€β”€β”΄β”€β”€β”€β”€β”                         β”Œβ”€β”€β”€β”€β”΄β”€β”€β”€β”€β”
     β”‚ Victim  β”‚                         β”‚Defendantβ”‚
     β””β”€β”€β”€β”€β”¬β”€β”€β”€β”€β”˜                         β””β”€β”€β”€β”€β”¬β”€β”€β”€β”€β”˜
          β”‚                                   β”‚
          β–Ό                                   β–Ό
     LARCENY                            EMBEZZLEMENT
   (Taking from                      (Conversion while
    victim's                          in lawful
    possession)                       possession)
          β”‚
          β”‚ Did defendant get
          β”‚ TITLE or just possession?
          β”‚
     β”Œβ”€β”€β”€β”€β”΄β”€β”€β”€β”€β”
     β”‚  TITLE  β”‚ = FALSE PRETENSES
     β””β”€β”€β”€β”€β”€β”€β”€β”€β”€β”˜   (Victim transfers
                    title by fraud)

Robbery: Larceny from person or presence by force or intimidation.

Burglary (common law): Breaking and entering dwelling of another at nighttime with intent to commit felony inside.

Burglary (modern): Unauthorized entry into any structure with intent to commit felony inside (no breaking, nighttime, or dwelling required).

Inchoate Crimes πŸ“

Inchoate crimes are incomplete crimes or crimes in preparation.

Solicitation: Asking, encouraging, or commanding another to commit a crime with intent that the crime be committed. Crime is complete upon asking (no agreement needed).

Conspiracy: Agreement between two or more persons to commit unlawful act with intent to agree and intent to commit target offense. Requires:

  • Agreement (express or implied)
  • Intent to agree
  • Intent to achieve objective
  • Overt act (in most jurisdictions)

πŸ’‘ Conspiracy continues until objective is achieved or abandoned. Co-conspirators are liable for crimes committed by other conspirators if:

  1. Crimes were committed in furtherance of conspiracy, AND
  2. Crimes were foreseeable

Attempt: Specific intent to commit crime + substantial step toward commission that goes beyond mere preparation.

TestDescription
Proximity TestActs dangerously close to completion
Equivocality TestConduct unequivocally manifests criminal intent
Model Penal CodeSubstantial step strongly corroborative of criminal intent

Legal impossibility (defense) vs. factual impossibility (not a defense):

  • Legal: What defendant intended to do is not actually a crime
  • Factual: Crime impossible due to facts unknown to defendant

Defenses to Crimes πŸ›‘οΈ

Justification Defenses

Self-Defense: Non-aggressor may use reasonable force to prevent imminent unlawful force. Deadly force permitted only if facing imminent threat of serious bodily harm or demise.

Retreat: No duty to retreat before using non-deadly force. For deadly force:

  • Majority: No duty to retreat
  • Minority: Must retreat if can do so safely (exception: own homeβ€”"castle doctrine")

Defense of Others: May use force to defend others to same extent person defended could use.

Defense of Property: May use reasonable non-deadly force to prevent imminent unlawful interference with property. Never deadly force solely to protect property.

Excuse Defenses

Insanity: Four main tests:

TestStandard
M'NaghtenDidn't know nature/quality of act OR didn't know act was wrong due to mental disease
Irresistible ImpulseUnable to control conduct due to mental disease
DurhamCrime was "product of" mental illness
Model Penal CodeLacked substantial capacity to appreciate criminality or conform conduct to law

Intoxication:

  • Voluntary: Defense only to specific intent crimes
  • Involuntary: Defense to all crimes requiring mens rea

Duress: Defendant reasonably believed another person would imminently inflict serious bodily harm or demise on defendant or family member unless defendant committed crime. Not available for intentional homicides.

Mistake of Fact:

  • Specific intent crimes: Any honest mistake negates intent
  • General intent crimes: Only reasonable mistake is defense
  • Strict liability crimes: No defense

Mistake of Law: Generally not a defense, with narrow exceptions:

  • Statute not reasonably made available
  • Reasonable reliance on official interpretation
  • Lack of awareness of law negates required mental element

Criminal Procedure: Constitutional Protections πŸ“œ

Fourth Amendment: Search and Seizure πŸ”Ž

The Fourth Amendment protects against unreasonable searches and seizures. It requires:

  • Probable cause for searches and arrests
  • Search warrant based on oath/affirmation
  • Warrant must particularly describe place and items

Defendant must have reasonable expectation of privacy in place searched:

  • βœ… Own home, hotel room, office
  • βœ… Overnight guest in another's home
  • ❌ Places open to public view
  • ❌ Other people's property where defendant has no legitimate expectation

πŸ€” Did you know? In California v. Greenwood (1988), the Supreme Court held there's no reasonable expectation of privacy in trash left on the curb for collection!

Warrant Requirement and Exceptions

General Rule: Search requires warrant unless exception applies.

Warrant Exceptions:

ExceptionScope
Search Incident to Lawful ArrestPerson and wingspan (area within immediate control)
Automobile ExceptionEntire vehicle if probable cause to believe evidence/contraband inside
Plain ViewOfficer lawfully in location, item immediately apparent as evidence
ConsentVoluntary consent by one with authority over premises
Stop and FriskBrief detention with reasonable suspicion; frisk if reasonable belief of danger
Hot Pursuit/Exigent CircumstancesEmergency situation requiring immediate action
Inventory SearchRoutine inventory of impounded vehicle or arrestee's belongings

🧠 Mnemonic: "ESCAPIST" for warrant exceptions: Exigent circumstances, Search incident to arrest, Consent, Automobile, Plain view, Inventory, Stop and frisk, Telephone (wiretap with one-party consent)

Exclusionary Rule 🚫

Evidence obtained in violation of Fourth Amendment is inadmissible in prosecution's case-in-chief.

Exceptions to Exclusionary Rule:

  • Independent source: Evidence obtained through source independent of illegal search
  • Inevitable discovery: Evidence would have been discovered through lawful means
  • Attenuation: Connection between illegality and evidence sufficiently attenuated
  • Good faith: Officer reasonably relied on defective warrant, statute, or court records

Fruit of the Poisonous Tree: Evidence derived from initial illegal search is also excluded (unless exception applies).

Fifth Amendment: Privilege Against Self-Incrimination 🀐

Miranda Rights

Miranda warnings required before custodial interrogation:

  1. Right to remain silent
  2. Anything said can be used in court
  3. Right to attorney
  4. Attorney appointed if cannot afford

Custody: Reasonable person would not feel free to leave (objective test).

Interrogation: Words or actions police know are reasonably likely to elicit incriminating response.

πŸ’‘ Tip: Both custody AND interrogation must be present. Volunteered statements are always admissible.

Waiver: Must be knowing, voluntary, and intelligent. Can be implied from conduct. Silence alone after warnings is not waiver.

Invocation of Rights:

  • Right to silence: Questioning must stop (can re-initiate after significant time)
  • Right to counsel: All questioning must stop until attorney present (cannot re-initiate unless defendant initiates)

Exceptions to Miranda

ExceptionRationale
Public SafetyQuestions necessary to protect public from immediate danger
Routine BookingStandard biographical questions during booking process
ImpeachmentStatement obtained in violation can impeach defendant's trial testimony

Sixth Amendment: Right to Counsel βš–οΈ

The Sixth Amendment guarantees right to counsel at all critical stages after formal charges filed.

Critical Stages include:

  • Post-indictment interrogation
  • Post-indictment lineup
  • Arraignment
  • Preliminary hearing
  • Trial
  • Sentencing
  • First appeal as of right

NOT Critical Stages:

  • Pre-charge lineups
  • Taking handwriting/voice samples
  • Photo arrays
  • Discretionary appeals

⚠️ Important Distinction: Fifth Amendment (Miranda) applies during custodial interrogation; Sixth Amendment applies after formal charges at critical stages.

Deliberate Elicitation Test: Sixth Amendment violated if government deliberately elicits incriminating statements after charges filed without counsel present.

Pretrial Procedures πŸ“‹

Preliminary Hearing

Judge determines whether probable cause exists to believe defendant committed crime. Defendant has right to counsel but not to jury.

Grand Jury

Determines whether sufficient evidence to bring charges (indictment). Defendant has:

  • ❌ No right to notice
  • ❌ No right to counsel
  • ❌ No right to present evidence
  • ❌ No right to confront witnesses

Arraignment

Defendant informed of charges and enters plea. Right to counsel attaches.

Bail

Eighth Amendment prohibits excessive bail. No constitutional right to bail in all cases, but if offered, cannot be excessive.

Factors courts consider:

  • Seriousness of offense
  • Defendant's criminal record
  • Risk of flight
  • Danger to community

Trial Rights πŸ‘¨β€βš–οΈ

Right to Jury Trial

Sixth Amendment guarantees jury trial for serious offenses (potential punishment exceeds 6 months).

Jury Composition:

  • Must represent fair cross-section of community
  • Voir dire: Process of selecting jury
  • Peremptory challenges: Limited number, cannot be based on race or gender
  • Challenges for cause: Unlimited if juror shows bias

Burden of Proof

Prosecution must prove every element of crime beyond reasonable doubt.

Defendant bears burden of proving affirmative defenses (insanity, self-defense) by:

  • Preponderance of evidence (majority rule), OR
  • Defendant need only raise reasonable doubt (minority rule)

Right to Confrontation

Sixth Amendment Confrontation Clause guarantees right to confront witnesses.

Testimonial Hearsay: Statements made in circumstances suggesting primary purpose was creating evidence for prosecution (911 calls, police interrogations) are inadmissible unless:

  • Declarant testifies and subject to cross-examination, OR
  • Declarant unavailable AND defendant had prior opportunity to cross-examine

Double Jeopardy

Fifth Amendment prohibits:

  • Second prosecution for same offense after acquittal
  • Second prosecution for same offense after conviction
  • Multiple punishments for same offense

Jeopardy attaches:

  • Jury trial: When jury is sworn
  • Bench trial: When first witness is sworn

Same Offense Test (Blockburger): Two crimes are different offenses if each requires proof of element the other does not.

πŸ’‘ Exception: Separate sovereigns (federal and state, or two states) may prosecute for same conduct.

DOUBLE JEOPARDY PROTECTIONS TIMELINE

  Arrest β†’ Charges β†’ Jeopardy Attaches β†’ Verdict
     β”‚        β”‚            β”‚                β”‚
     β–Ό        β–Ό            β–Ό                β–Ό
   No DJ    No DJ     DJ BEGINS         DJ BARS
 Protection Protection  (jury sworn/    - Retrial for
                        witness sworn)    same offense
                                        - Multiple
                                          punishments

Exceptions Allowing Retrial:

  • Mistrial for manifest necessity (hung jury, witness illness)
  • Successful appeal by defendant (except if acquittal)
  • Defendant's motion for mistrial without prosecutor goading

Common Mistakes to Avoid ⚠️

Criminal Law Mistakes

  1. Confusing specific and general intent crimes: Remember that voluntary intoxication only negates specific intent, not general intent. Know which crimes fall into each category.

  2. Misapplying felony murder: The felony must be inherently dangerous and independent of the resulting homicide. You cannot use assault or battery that caused demise as the underlying felony for felony murder (merger doctrine).

  3. Forgetting concurrence requirement: The mens rea must exist at the same time as the actus reus. If someone accidentally takes another's property but later decides to keep it, there's no larceny because no intent to permanently deprive at time of taking.

  4. Mixing up property crimes: Pay careful attention to:

    • Larceny: Taking from victim's possession
    • Embezzlement: Converting property already in defendant's lawful possession
    • False pretenses: Victim transfers title based on false representation
  5. Misunderstanding attempt: Mere preparation is insufficient. Defendant must take a substantial step that goes beyond preparation and strongly corroborates criminal intent.

Criminal Procedure Mistakes

  1. Confusing Fifth and Sixth Amendment rights:

    • Fifth Amendment (Miranda): Custodial interrogation
    • Sixth Amendment: After formal charges, at critical stages
    • They can both apply, but have different requirements and remedies
  2. Misapplying warrant exceptions: Each exception has specific requirements:

    • Search incident to arrest: Must be lawful arrest, can only search wingspan
    • Automobile exception: Need probable cause for vehicle, not just occupant
    • Stop and frisk: Reasonable suspicion (lower standard than probable cause)
  3. Forgetting standing requirements: Defendant must have reasonable expectation of privacy to challenge search. Can't challenge search of friend's apartment unless defendant was overnight guest.

  4. Misunderstanding Miranda invocation:

    • Invoking right to silence: Police can re-approach after passage of time
    • Invoking right to counsel: Police cannot re-approach unless defendant initiates
    • Invocation must be clear and unambiguous
  5. Confusing when jeopardy attaches: Jeopardy doesn't attach at arrest or chargingβ€”only when jury is sworn (jury trial) or first witness sworn (bench trial).

  6. Misapplying double jeopardy:

    • Same sovereign cannot retry for same offense after acquittal
    • Different sovereigns (state and federal) can both prosecute
    • Use Blockburger test to determine if "same offense"
  7. Forgetting fruit of poisonous tree exceptions: Even if initial search was illegal, evidence may still be admissible through independent source, inevitable discovery, attenuation, or good faith exceptions.

Key Takeaways 🎯

Criminal Law Essentials

βœ… Crime requires: Actus reus (voluntary act) + Mens rea (mental state) + Causation + Concurrence

βœ… Four mental states (MPC): Purposely > Knowingly > Recklessly > Negligently

βœ… Specific intent crimes allow more defenses (voluntary intoxication, unreasonable mistake)

βœ… Homicide hierarchy: First-degree murder (premeditation) > Second-degree murder (malice) > Voluntary manslaughter (heat of passion) > Involuntary manslaughter (criminal negligence)

βœ… Felony murder: Demise during commission of BARRK (Burglary, Arson, Robbery, Rape, Kidnapping)

βœ… Property crimes: Distinguish by who has possession and whether title transferred

βœ… Inchoate crimes: Solicitation (asking) < Conspiracy (agreement + overt act) < Attempt (substantial step)

βœ… Defenses: Justifications (self-defense, defense of others/property) vs. Excuses (insanity, intoxication, duress, mistake)

Criminal Procedure Essentials

βœ… Fourth Amendment: Reasonable expectation of privacy + Probable cause + Warrant (unless exception)

βœ… Warrant exceptions: ESCAPIST (Exigent, Search incident to arrest, Consent, Automobile, Plain view, Inventory, Stop and frisk, Telephone)

βœ… Exclusionary rule: Illegally obtained evidence excluded (plus fruit of poisonous tree) unless exception

βœ… Miranda (Fifth Amendment): Required for custodial interrogation

  • Must give all four warnings
  • Waiver must be knowing, voluntary, intelligent
  • Clear invocation stops questioning

βœ… Sixth Amendment counsel: Attaches at formal charges, applies to critical stages

  • Different from Mirandaβ€”no deliberate elicitation after charges

βœ… Double jeopardy: Bars retrial after acquittal, retrial after conviction, multiple punishments

  • Attaches when jury/first witness sworn
  • Use Blockburger test for "same offense"

βœ… Trial rights: Jury for serious offenses, proof beyond reasonable doubt, confrontation of witnesses

πŸ“‹ Quick Reference Card: Bar Exam Criminal Law/Procedure

Topic Key Rule Remember
Mental States Purposely > Knowingly > Recklessly > Negligently PeKiN ReNe (Pecking Rene)
Specific Intent Allows voluntary intoxication defense FLAB-BARE crimes
Felony Murder During inherently dangerous felony BARRK felonies
Manslaughter Voluntary = heat of passion; Involuntary = criminal negligence Adequate provocation test
Larceny Elements Taking + Carrying away + Property of another + Intent to permanently deprive All 4 required
Conspiracy Agreement + Intent + Overt act (most jurisdictions) Liable for foreseeable crimes of co-conspirators
4th Amendment Warrant required unless exception ESCAPIST exceptions
Search Incident Person + wingspan only Must be lawful arrest
Automobile Exception Probable cause β†’ entire vehicle No warrant needed if mobile
Stop & Frisk Reasonable suspicion β†’ brief detention; frisk if danger Lower than probable cause
Exclusionary Rule Illegally obtained evidence excluded Exceptions: independent source, inevitable discovery, attenuation, good faith
Miranda Custody + Interrogation = warnings required Both elements needed
Miranda Waiver Knowing, voluntary, intelligent Can be implied from conduct
Invoking Rights Silence: can re-approach; Counsel: cannot re-approach Must be clear and unambiguous
6th Amendment Counsel at critical stages after charges Different from Miranda
Double Jeopardy No retrial after acquittal/conviction; no multiple punishments Attaches: jury sworn or first witness sworn
Same Offense Blockburger test: each requires different element Separate sovereigns exception
Burden of Proof Prosecution: beyond reasonable doubt for all elements Defendant: preponderance for affirmative defenses

Examples with Detailed Explanations πŸ“š

Example 1: Mental State Analysis 🧠

Scenario: Derek sees his neighbor Victor's expensive bicycle in Victor's open garage. Derek has always wanted that bicycle. Derek walks into the garage, takes the bicycle, and rides it home, planning to keep it permanently.

Analysis:

  • Crime: Larceny
  • Actus Reus: Trespassory taking and carrying away of Victor's bicycle βœ“
  • Mens Rea: Intent to permanently deprive Victor of his property βœ“
  • Property of another: The bicycle belongs to Victor βœ“
  • Trespassory: Derek had no right to take the bicycle βœ“

Result: Derek is guilty of larceny. This is a specific intent crime requiring proof that Derek intended to permanently deprive Victor of the bicycle. The facts establish Derek "planned to keep it permanently," satisfying this requirement.

What if Derek only intended to borrow the bicycle and return it? Then there would be no larceny because larceny requires intent to permanently deprive. This might instead be unauthorized use of vehicle or trespass to chattels, depending on jurisdiction.

πŸ’‘ Bar Exam Tip: Always analyze whether the defendant had the specific intent required for the crime. For larceny, "borrowing" intent negates the crime even if defendant takes property.

Scenario: Police officer sees Tom's car weaving between lanes. Officer pulls Tom over for traffic violation. Upon approaching the vehicle, officer smells marijuana and sees marijuana residue on the dashboard in plain view. Officer orders Tom out of the car and searches the entire vehicle, finding a bag of cocaine in the trunk.

Analysis:

Initial Stop: βœ“ Valid

  • Reasonable suspicion of traffic violation (weaving) justifies stop

Plain View: βœ“ Valid

  • Officer lawfully in position (valid traffic stop)
  • Marijuana residue immediately apparent as contraband

Vehicle Search: βœ“ Valid

  • Automobile exception applies: probable cause (smell + visible residue) to believe vehicle contains contraband
  • Scope: entire vehicle including trunk (probable cause extends to entire vehicle)
  • No warrant required because vehicle is mobile

Result: Cocaine is admissible. The automobile exception allows warrantless search of entire vehicle when probable cause exists to believe it contains contraband.

Contrast: If officer only had reasonable suspicion (not probable cause), could only conduct Terry frisk of Tom's person for weaponsβ€”not full vehicle search. If Tom had been arrested for the marijuana, could search passenger compartment under search incident to arrest exception, but trunk search would require automobile exception (probable cause).

Example 3: Miranda Application 🀐

Scenario: Police arrest Susan at her home for robbery. At the station, detective says, "Before we talk, I need to tell you: you have the right to remain silent. Anything you say can be used against you. You have the right to an attorney. If you can't afford one, one will be appointed for you. Do you understand?" Susan nods. Detective asks, "Did you rob the store?" Susan says, "I want a lawyer." Detective responds, "Just tell me yes or no, then we'll get you a lawyer." Susan says, "Yes, I did it."

Analysis:

Custody: βœ“ Yes

  • Susan is under arrest and at police station
  • Reasonable person would not feel free to leave

Interrogation: βœ“ Yes

  • Detective's questions designed to elicit incriminating response

Miranda Warnings: βœ“ Given

  • All four warnings provided

Waiver: βœ“ Valid (initially)

  • Susan nodded understanding and responded to first question
  • Waiver can be implied from conduct

Invocation of Counsel: βœ“ Clear and unambiguous

  • "I want a lawyer" is clear invocation
  • All questioning must stop immediately

Continued Questioning: βœ— Violation

  • Detective cannot continue questioning after clear invocation of counsel
  • "Just tell me yes or no" violates Susan's rights

Result: Susan's statement "Yes, I did it" is inadmissible. Once suspect clearly invokes right to counsel, police must immediately cease questioning. Cannot use tactics to elicit response after invocation.

πŸ’‘ Critical Distinction: If Susan had invoked only right to silence ("I don't want to talk"), police could re-approach after significant time passage. But invoking counsel creates absolute barβ€”police cannot re-initiate contact.

Example 4: Double Jeopardy Analysis βš–οΈ

Scenario: Carlos is charged with robbery of a convenience store. At trial, after the jury is sworn and prosecution presents two witnesses, judge declares mistrial because prosecutor made prejudicial comment about Carlos's refusal to testify. State seeks to retry Carlos for robbery.

Analysis:

Did Jeopardy Attach? βœ“ Yes

  • Jury was sworn in jury trial
  • Jeopardy attached at that point

Does Double Jeopardy Bar Retrial?

  • General rule: Mistrial allows retrial if manifest necessity
  • Here: Prosecutor misconduct caused mistrial
  • Key question: Did defendant move for mistrial or did prosecutor intentionally provoke it?

Result: Depends on facts:

  • If judge declared mistrial sua sponte (on own motion) or defendant moved for mistrial: State CAN retry (defendant's motion exception)
  • If prosecutor intentionally goaded defendant into moving for mistrial: Double jeopardy BARS retrial
  • If prosecutor's comment was negligent (not intentional goading): State CAN retry

Same Offense Analysis: If state tries to charge Carlos with both:

  • Robbery: Taking property by force with intent to permanently deprive
  • Larceny: Taking property with intent to permanently deprive

Blockburger Test: Does each offense require proof of element the other does not?

  • Robbery requires force (larceny does not)
  • Larceny requires... wait, robbery includes all larceny elements PLUS force
  • Result: Larceny is lesser included offense of robbery
  • Double jeopardy BARS conviction for both

πŸ’‘ Bar Exam Tip: Always apply Blockburger test when multiple charges arise from same conduct. If one crime is lesser included offense of another, double jeopardy bars multiple convictions.

Further Study πŸ“š

For additional preparation and deeper understanding:

  1. Cornell Law School - Legal Information Institute: Comprehensive coverage of criminal law and procedure with case summaries and statutory text: https://www.law.cornell.edu/wex/criminal_law

  2. Oyez Project - Supreme Court Case Summaries: Audio recordings and detailed summaries of landmark criminal procedure cases like Miranda v. Arizona, Terry v. Ohio, and Gideon v. Wainwright: https://www.oyez.org

  3. American Bar Association Criminal Justice Section: Practice resources, standards, and policy statements on criminal justice issues: https://www.americanbar.org/groups/criminal_justice/


Remember: Criminal law and procedure are tested heavily on the bar exam. Master the elements of major crimes, know the distinctions between mental states, and understand when constitutional protections apply. Use the mnemonics and quick reference card to reinforce your knowledge through spaced repetition and practice questions! πŸŽ“