Criminal Law & Procedure

Criminal Law
Requires an act coupled with a mental state
1Actus

Reus - Guilty Act

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

Mens Rea - Wrongful Intent

1. Requisite mental state necessary to establish guilt is specified in the applicable statute
2. Mental States
Purposefully/Intentionally
a. intends to bring about a certain criminal objective/ result
b. engages in certain criminal conduct accomplishing that objective
or cause a certain criminal result
Knowingly
a. conscious belief or awareness of the illegality of the conduct
b. willful blindness - suspect the criminal conduct exists but fails to
confirm it
Recklessly
a. consciously disregards a substantial and unjustifiable risk
b. usually requires a subjective belief that the risk existed when engaging
in the act
Negligently (not to be confused with Tort Law)
a. grossly deviates from the standard of care that a reasonable person
would use under the same circumstances
b. action takes an unjustified, substantial, and foreseeable risk resulting
in harm
3. Transferred Intent
(1)
Unintended Victim
i.
intended result happens to an unintended victim
ii.
A aims gun at B with intent to kill B, shoots and misses
killing C
iii.
A guilty of murdering C
(2)
Unintended Manner
i.
intended result happens to intended victim but in an
unintended manner
ii.
A aims gun at Bs heart with intent to kill B, shoots and hits
B in the head killing him
iii.
A guilty of murdering B
(3)
Unintended Degree of Harm

i.

(4)

intended result does not happen but instead, a different

degree of unintended harm happens to intended victim
ii.
A hits B with a stick intending to injure B, but kills B
instead
iii.
A still guilty of killing B, although probably under a
recklessness theory
Unintended Type of Harm
i.
intended result does not happen and instead, a different
type of unintended harm happens (either to the intended
victim or a different victim)
ii.
A throws rock at B with intent to injure B but misses,
accidentally breaking Bs (or Cs) window
iii.
problem holding A guilty because no mens rea to cause a
different type of crime (concurrence required between
mens rea and resulting harm)

Corporate Criminal Liability

Corporations
1. Crimes committed by agents or employees acting within the course and
scope of their employment
2. Failing to perform a specific affirmative duty required by law Crimes
authorized, requested, commanded, committed, or recklessly tolerated by the
firms president, directors, officers or high level managerial agents
3. Corporate entity itself cannot form intent and cannot be imprisoned, but can
be fined and/ or have licenses to operate suspended or revoked.
Presidents, directors, officers & high level managerial agents
1. Responsible Corporate Officer doctrine: personally liable even in the
2. Absence of direct supervision, participation or knowledge of criminal
violation, if:
a. they have a reasonable relationship to the corporation, and
b. had the power to prevent the criminal violation
see United States v Hanousek, (11th edition, p. 207)

Criminal Procedure
2Fourth Amendment - Search and Seizure
Reasonable Expectation of Privacy - intentional governmental action
(a)
(search) - invading a persons personal space, area or
property
(b)
(seizure = arrest) - restricting/ terminating a persons
personal freedom
(c)
levels of intrusion - People v DeBour, 40 NY2d 210, 386
NYS2d 375 (1976) - the crucial factor is whether or not the
police behavior can be characterized as reasonable which,
in terms of accepted standards, requires a balancing of the
interests involved in the police inquiry (People v Ingle, 36
218 NY2d 413, 419, supra.; Terry v Ohio, 392 US 1, 2021, supra.; Camara v Municipal Ct, 387 US 523, 536- 537;
People v Cantor, 36 NY2d 106, supra.; People v Kuhn, 33
NY2d 203, 209).
(i)
Request for Information
1)
objective credible reason for approach
2)
no indication of criminal activity required
(ii)
Common Law Right of Inquiry
1)
founded suspicion that criminal activity is
afoot
2)
interfere with citizen to gain explanatory
information for a brief period of time
(iii)
Forcible Stop and Detention
1)
demand explanation of persons conduct
2)
reasonable suspicion to belief person is, has
or about to commit a crime
3)
longer period of detention to investigate
4)
may frisk and search for weapons within
grab area or otherwise in plain view
(iv)
Formal Arrest
1)
probable cause
2)
arrest without warrant in public is okay
3)
arrest in home/residence without warrant is
not okay absent exigent circumstances, hot
pursuit or consent
Probable Cause
Requires specific, objective, articulable facts that:
1. reasonably likely that crime was committed
2. reasonably likely that perpetrator committed it
1. Must be ordered by judge authorizing the search or seizure
2. Reasonable cause to believe a search will reveal a specific illegality

3. Requires law enforcement to have credible (trustworthy) evidence that

would convince a reasonable person that the search is more likely justified
than not
(i)
may include factors such as furtiveness,
nervousness, high crime area, fear, time of day
(ii)
more than 50%
(iii)
not whether evidence of guilt beyond a reasonable
doubt
Search Warrants
1. Protects the right of the people to be secure in their persons, h
houses, papers, and effects
2. Applies to law enforcement officers seeking to search and seize
private property
3. Must be ordered by judge authorizing the search or seizure
4. Search without specific description of that which is to be
searched and seized prohibited - warrants must be specific
Exceptions:
1. exigent circumstances
2. grab area - fear of officers safety
3. plain view - because no expectation of privacy exists
4. inventory - usually automobile stops
Business Related Searches
Warrant required for:
Government Inspections by administrative agencies to
ensure regulatory compliance, and
Business records possessed by lawyers and accountants
Lower standard of probable cause - whatever that means
general and neutral enforcement plan will justify issuance
of warrant
No warrant required for:
Highly regulated industries such as liquor, tobacco, guns,
spoiled/ contaminated food
Maintaining a safe workplace without violating 4th
Amendment - very few guidelines; random drug testing?
Arguably can be more intrusive because not law
enforcement officials

Fifth Amendment Right Against Self-Incrimination

No person shall be compelled in any criminal case to be a witness against himself
- in federal proceedings
Protection extends only to natural persons, not business partnerships &
corporations (business corporations & partnerships are legal entities (See,
Verniero v Beverly Hills Ltd, Inc); such records business records of are not
protected and must be produced when required - even if they incriminate
persons constituting the business entity.
But note: Sole proprietors and sole practitioners who are not incorporated are
protected and cannot be compelled to produce their business records they function
in one capacity.
Double jeopardy - precludes multiple prosecutions for same crime
1. Does not preclude a civil prosecution for the same incident or
occurrence
2. But note that multiple criminal prosecutions are possible:
a. different jurisdictions (state & federal)
b. different charges relating to same transaction or occurrence
(events/incident)
3. Right attaches when the jury is sworn in or when first witness sworn if
trial is a non-jury
Statements/Confessions
Voluntariness
1. Takes into consideration all factors and circumstances; not
simply that rights werent given, i.e., whether suspect physically
or psychologically pressured or coerced into making admission,
such as sleep, food, bathroom deprivation, threats of or actual use
of physical force, or prevented from seeing lawyer (Escobedo v
Illinois, 84 S Ct 1758 [1964]).
2. Concern also stems from inherent intimidation and pressures of
police dominated environment.
Custodial Interrogation (Miranda v Arizona)
Rights:
remain silent;
any statement may be used against;
right to counsel during questioning;
right to have counsel free of charge.
Failure to administer to subject results in preclusion
regardless of whether it was voluntarily made

Purpose:
1. demonstrate to the suspect that the police are
willing to recognize the right to counsel if suspect
chooses to
2. because of the severity of custodial interrogation
- the nature of it is that the circumstances act
quickly to overbear the will of the suspect
Custody
1. Whether a person, otherwise innocent of a crime, would
have felt free to leave
2. Restriction of natural freedom of movement
3. Guns need not be drawn, handcuffs need not be applied,
arrest need not be said
4. Police intentions are a factor but not determinative
Interrogation
1. Questions or statements designed to elicit an
incriminating response
2. Acceptable practices include:
a. pedigree
b. spontaneous utterances
c. police statements inducing admissions may be
okay depending on circumstances
Waiver of rights must be knowing & voluntarily
intelligently understand what they mean
aware of the consequences of waiving understand the significance of actions
Exceptions (federal, not New York):
a. public safety
b. coerced provided that there is other
evidence of guilt - discuss how much is
enough?
c. unequivocal request for lawyer in order to
stop questioning suspect in custody asking
maybe I should talk to a lawyer, do I need
one? isnt an unequivocal request for
counsel
d. spontaneous - if precluded, may use on
cross examination of defendant (if testifies)
to impeach credibility provided it wasnt the
product of physical abuse (Harris rule)

Sixth Amendment Right to Counsel & Right to Trial by Jury

1. Right to Counsel begins when the criminal action is filed;
entitled to counsel at all critical stage of the litigation;
2. Right to speedy trial, usually a specified statutory period of time
but can be based on a lengthy, unexcused and unreasonable period
regardless of any statutory period;
3. Trial must be open to public;
4. Right to confront witnesses against accused
5. No federal constitutional right to jury trial (many states do):
a. civil cases;
b. unanimous finding;
c. any specific number of jurors.
Identification procedures
No right to counsel unless already in custody and charged (then right to counsel
automatically attaches)
Unduly suggestive:
1. Show-ups, single photographic display, or highly dissimilar distinctive
features of others to that of suspect so suspect stands out
2. But mere confirmatory identifications or existence of exigent circumstances is
permissible
3. Line-up/photo array No requirement that fillers in arrays/line-ups look exactly like the
subject; only that they are similar enough so that any distinctive features
do not stand out (which may suggest the subject).
Independent source:
Where a basis for the identification of the defendant to otherwise be reliable, such
as sufficient opportunity to have observed during commission of crime, previous
or ongoing relationship, or previously knew individual, suggestiveness can be
overcome.
Exclusionary Rule
Fruit of the Poisonous Tree doctrine:
All evidence derived from illegally obtained evidence or arrest (4th, 5th & 6th
Amendments) is inadmissible at trial

1.Philosophy is that evidence derived, fruit, is tainted by illegally obtained

evidence or arrest
2.Got off on a technicality understood to refer to non-prosecution
notwithstanding defendants guilt
3.Purpose is to provide severe measure to deter law enforcement from unlawful
arrest, search & seizure and general police misconduct
Exceptions:
Attenuation rule - seizure is sufficiently separated from unlawful police conduct so as to
eliminate taint
Inevitable discovery rule - would have been discovered anyway (inventory search, warrant not
specifying property seized but was otherwise sufficient)