Master of Laws (LLM) Criminal Law and Criminal Procedure Syllabus

How do solicitation, attempt, and conspiracy merge?

Solicitation merges into conspiracy or the completed crime if the person agrees or commits it; attempt merges into the completed crime. A defendant cannot be convicted of both solicitation and the resulting conspiracy/completed offense.

What is the common law definition of murder?

The unlawful killing of another human being with malice aforethought.

What are the four mental states that constitute 'malice aforethought' for murder?

(1) Intent to kill, (2) intent to inflict serious bodily harm, (3) reckless indifference to human life (depraved/abandoned heart), and (4) intent to commit a felony (felony murder).

What distinguishes first-degree murder from second-degree murder?

First-degree murder requires premeditation and deliberation (or qualifying felony murder/specified means). Second-degree murder is any murder with malice that does not meet first-degree requirements (a 'catch-all').

What is the felony murder rule?

A killing, even accidental, committed during the commission or attempted commission of an inherently dangerous felony (commonly BARRK: Burglary, Arson, Robbery, Rape, Kidnapping) is murder.

What is the difference between voluntary and involuntary manslaughter?

Voluntary manslaughter: an intentional killing committed in the heat of passion upon adequate provocation. Involuntary manslaughter: an unintentional killing resulting from criminal negligence/recklessness or during commission of an unlawful act (misdemeanor manslaughter).

What are the requirements for 'adequate provocation' to reduce murder to voluntary manslaughter?

(1) Provocation that would arouse sudden intense passion in an ordinary person, (2) the defendant was in fact provoked, (3) insufficient time to cool off, and (4) the defendant did not in fact cool off.

What is the difference between larceny and embezzlement?

Larceny: a trespassory taking and carrying away of another's personal property with intent to permanently deprive, where the taker never had lawful possession. Embezzlement: fraudulent conversion of property by someone already in lawful possession of it.

What is the difference between larceny by trick and false pretenses?

Larceny by trick: obtaining possession (not title) of property by deception. False pretenses: obtaining title to property by a knowing false representation of a material past or present fact with intent to defraud.

What are the elements of robbery?

A larceny (trespassory taking of another's property with intent to permanently deprive) from the victim's person or presence, accomplished by force or threat of immediate force (intimidation).

How does robbery differ from extortion (blackmail)?

Robbery requires taking property by immediate force or threat in the victim's presence. Extortion involves obtaining property through threats of future harm (e.g., exposure, future violence) and need not occur in the victim's presence.

What is the common law definition of burglary?

The breaking and entering of the dwelling of another at nighttime with the intent to commit a felony therein.

What are the elements of common law larceny stated as a checklist?

(1) Trespassory (2) taking and (3) carrying away (asportation) of (4) the tangible personal property (5) of another (6) with intent to permanently deprive the owner of it at the time of taking.

What is the distinction between robbery and larceny from the person?

Both involve taking from the victim's person/presence, but robbery requires force or intimidation, whereas larceny from the person (e.g., pickpocketing) is accomplished without force and without the victim's awareness.

What is the difference between justification and excuse defenses?

Justification defenses (e.g., self-defense, necessity) make otherwise-criminal conduct lawful because it was the right thing to do. Excuse defenses (e.g., insanity, duress) admit the conduct was wrong but excuse the defendant due to lack of culpability.

What are the rules for using non-deadly versus deadly force in self-defense?

Non-deadly force: permitted to repel imminent unlawful force. Deadly force: permitted only when the defendant reasonably believes it necessary to prevent imminent death or serious bodily harm; many jurisdictions impose a duty to retreat before using deadly force (except in one's home).

Name the four common formulations of the insanity defense.

(1) M'Naghten rule (didn't know nature/wrongfulness of act), (2) Irresistible Impulse test, (3) Durham/product test (act was product of mental illness), and (4) MPC/Substantial Capacity test (lacked substantial capacity to appreciate criminality or conform conduct).

What are the elements of the duress defense?

The defendant committed the crime because of a reasonable belief that another person would imminently inflict death or serious bodily harm on him or a third party if he did not. Duress is generally NOT a defense to intentional murder.

How do voluntary and involuntary intoxication function as defenses?

Voluntary intoxication is a defense only to specific intent crimes (negating intent). Involuntary intoxication is treated like insanity and can be a defense to any crime, including general intent crimes.

What are the elements of the necessity defense?

The defendant reasonably believed that committing the crime was necessary to avoid a greater imminent harm caused by natural forces, the harm avoided outweighed the harm caused, and there was no reasonable legal alternative.

When does mistake of fact serve as a valid defense?

A mistake of fact is a defense if it negates the required mens rea. For specific intent crimes, any honest mistake suffices; for general intent crimes, the mistake must be reasonable; for strict liability crimes, mistake is never a defense.

What is the standard for whether a Fourth Amendment 'search' has occurred (Katz test)?

A search occurs when the government intrudes on a reasonable expectation of privacy: (1) the person exhibited an actual (subjective) expectation of privacy, and (2) society recognizes that expectation as objectively reasonable.

What is the 'open fields' doctrine and how does it differ from 'curtilage'?

Open fields (land outside the curtilage) carry no reasonable expectation of privacy and may be searched without a warrant. Curtilage (the area immediately surrounding the home, used for intimate domestic activities) IS protected under the Fourth Amendment.

Does a person have a reasonable expectation of privacy in items knowingly exposed to the public or third parties?

No. Under the third-party doctrine, there is no reasonable expectation of privacy in information voluntarily conveyed to third parties (e.g., bank records, traditional phone numbers dialed) or in things exposed to public view (e.g., garbage left at the curb, handwriting, voice).

What two requirements must a valid search warrant satisfy?

(1) It must be based on probable cause supported by oath or affirmation, and (2) it must particularly describe the place to be searched and the persons or things to be seized. It must also be issued by a neutral and detached magistrate.

List the major recognized exceptions to the warrant requirement.

Search incident to lawful arrest, automobile exception, plain view, consent, stop and frisk (Terry), hot pursuit, and exigent circumstances (including evanescent evidence).

What is the scope of a search incident to a lawful arrest?

Police may search the arrestee's person and the area within his immediate control (his 'wingspan'/grabbable area) to discover weapons and prevent destruction of evidence, contemporaneous with the arrest.

What does the automobile exception permit?

If police have probable cause to believe a lawfully stopped vehicle contains contraband or evidence of crime, they may search the entire vehicle and any containers within it that could hold the object of the search, without a warrant.

What are the requirements of the plain view exception?

Police may seize an item without a warrant if (1) they are lawfully present at the location, (2) the item's incriminating nature is immediately apparent, and (3) they have lawful access to the item itself.

What are the requirements for a valid Terry stop and frisk?

A stop requires reasonable suspicion of criminal activity based on articulable facts. A frisk (pat-down of outer clothing for weapons) requires reasonable suspicion that the suspect is armed and dangerous.

What must valid consent to a search satisfy?

Consent must be voluntary (under the totality of circumstances, not coerced) and given by someone with actual or apparent authority over the premises or items. Police need not inform the person of the right to refuse.

What is the exclusionary rule?

A judge-made remedy that bars the prosecution from introducing evidence obtained in violation of a defendant's Fourth, Fifth, or Sixth Amendment rights in its case-in-chief.

What is the 'fruit of the poisonous tree' doctrine?

Evidence derived from (a secondary product of) an illegal search, seizure, or interrogation is also inadmissible, because it is tainted by the original constitutional violation.

What are the three main exceptions that purge the taint of an illegal search (fruit of the poisonous tree)?

(1) Independent source, (2) inevitable discovery, and (3) attenuation (intervening acts of free will or sufficient passage of time that dissipate the taint).

What is the 'good faith' exception to the exclusionary rule?

Evidence obtained by police acting in objectively reasonable good-faith reliance on a defective search warrant (or on a statute/binding precedent later found invalid) is admissible, because exclusion would not deter police misconduct.

Name situations where the exclusionary rule does NOT apply.

Grand jury proceedings, civil proceedings, parole revocation hearings, impeachment of the defendant's own testimony, violations of the knock-and-announce rule, and good-faith reliance on a warrant or law.

What does the Fifth Amendment privilege against self-incrimination protect?

It protects a person from being compelled to give testimonial, self-incriminating evidence; it does not protect against compelled production of physical (non-testimonial) evidence like blood, handwriting, or voice samples.

What are the four Miranda warnings?

(1) The right to remain silent, (2) anything said can be used against you in court, (3) the right to an attorney, and (4) if you cannot afford an attorney one will be appointed.

When are Miranda warnings required?

Before custodial interrogation: when a person is (1) in custody (a reasonable person would not feel free to leave, akin to a formal arrest) and (2) subject to interrogation (express questioning or its functional equivalent) by someone known to be a government agent.

How does a suspect invoke the right to remain silent versus the right to counsel under Miranda, and what is the effect?

Both must be invoked unambiguously. Invoking silence requires police to scrupulously honor it (questioning may resume later on a different crime). Invoking counsel bars all further interrogation on any crime until counsel is present or the suspect reinitiates.

What is the difference between the Fifth and Sixth Amendment rights to counsel?

The Fifth Amendment (Miranda) right to counsel applies to custodial interrogation and is not offense-specific. The Sixth Amendment right to counsel attaches at the initiation of formal adversarial proceedings and is offense-specific.

When does the Sixth Amendment right to counsel attach?

At or after the initiation of formal adversarial judicial proceedings (e.g., formal charge, preliminary hearing, indictment, information, or arraignment).

To which 'critical stages' does the Sixth Amendment right to counsel apply?

Post-charge lineups, post-indictment interrogation, arraignment, preliminary hearings, plea negotiations, trial, sentencing, and the first appeal as of right. It does NOT apply to photo arrays, pre-charge lineups, or the taking of physical evidence.

What is the standard for ineffective assistance of counsel (Strickland v. Washington)?

The defendant must show (1) counsel's performance was deficient (fell below an objective standard of reasonableness), and (2) the deficient performance prejudiced the defense (a reasonable probability the result would have been different).

What does the Double Jeopardy clause of the Fifth Amendment protect against?

It protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

What is the Blockburger 'same offense' test for double jeopardy?

Two crimes are the same offense unless each crime requires proof of an element that the other does not. If each contains a distinct element, they are different offenses and double jeopardy does not bar separate prosecution.

What must occur before the protection against double jeopardy 'attaches'?

Jeopardy attaches in a jury trial when the jury is sworn (empaneled), and in a bench trial when the first witness is sworn. In a guilty plea, it attaches upon acceptance of the plea.

When may pretrial identification evidence be excluded as a due process violation?

When the identification procedure was unnecessarily suggestive AND created a substantial likelihood of irreparable misidentification, evaluated under the totality of the circumstances.

What reliability factors determine whether a suggestive identification is nonetheless admissible (Neil v. Biggers)?

(1) The witness's opportunity to view the criminal, (2) the witness's degree of attention, (3) the accuracy of the prior description, (4) the witness's level of certainty, and (5) the time between the crime and the identification.

Does the Sixth Amendment right to counsel apply to a pretrial lineup, and when?

Yes, an accused has a right to counsel at a POST-charge lineup or showup (a critical stage). There is NO right to counsel at a pre-charge lineup or at a photographic identification (photo array) at any time.

What is the remedy when an identification is obtained in violation of the right to counsel, and can the witness still identify the defendant at trial?

The out-of-court identification is excluded. The witness may still make an in-court identification only if the prosecution shows by clear and convincing evidence that it has an independent source (such as the witness's observation at the time of the crime).