CRIMINAL LAW AND PROCEDURE Copyright July State Bar of California

Similar documents
CERTIFICATION PROCEEDING

PEARCE MICRO REVIEW Criminal Law & Procedure

California Bar Examination

Question With what crime or crimes should Dan be charged? Discuss. 2. What defense or defenses might Dan assert? Discuss.

Section 20 Mistake as to a Justification 631. Chapter 4. Offenses Against the Person Article 1. Homicide Section Murder in the First Degree

Question What legal justification, if any, did Dan have (a) pursuing Al, and (b) threatening Al with deadly force? Discuss.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

An appeal from the Circuit Court for Alachua County. Robert P. Cates, Judge.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION. JESSE JOE HERNANDEZ, PETITIONER, vs. No.

The defendant has been charged with first degree murder.

Sentencing Factors that Limit Judicial Discretion and Influence Plea Bargaining

New Jersey Office of the Attorney General Division of Criminal Justice

SIM GILL DISTRICT ATTORNEY

CRIMINAL OFFENCES. Chapter 9

STATE OF MICHIGAN COURT OF APPEALS

ESSAY APPROACH. Bar Exam Doctor BAREXAMDOCTOR.COM. CRIMINAL LAW ESSAY

STATE OF MICHIGAN COURT OF APPEALS

STATE OF MICHIGAN COURT OF APPEALS

A PLAINTIFF S GUIDE TO CIVIL IMMUNITY

Calibre Press Street Survival Newsline February 28, Number 867. Test Your Excesive Force I.Q.

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA


Intended that deadly force would be used in the course of the felony.] (or)

TAB 12: Aggravating & Mitigating Circumstances

RECOMMENDATION TO THE LEGISLATURE OF ALASKA FROM THE ALASKA CRIMINAL JUSTICE COMMISSION

a. To effect an arrest or bring a subject under control;

DONALD SCOTT TAYLOR, is convicted of one or both of the capital offenses relating

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT **********

Florida Jury Instructions. 7.2 MURDER FIRST DEGREE (1)(a), Fla. Stat.

Sentencing Chronic Offenders

United States Supreme Court Term: Cases Affecting Criminal Law and Procedure

Ricardo Gonzalez vs. State of Florida

S e n t e n c i n g P a r t n e r s

Marquette University Police Department

CRIMINAL LAW ESSAY SERIES ESSAY QUESTION #2 MODEL ANSWER. 1. With what crime or crimes should Dan be charged? Discuss.

S07A1352. LEWIS v. THE STATE. Defendant Jeffrey Daniel Lewis was convicted of the felony murder of

CASE NO. 1D Nancy A. Daniels, Public Defender, Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

692 Part VI.b Excuse Defenses

Subject: Offences Committed Against Peace Officers Date: October 2015

The defendant has been charged with second degree murder. 1

The HIDDEN COST Of Proving Your Innocence

Do Capital Jurors Understand Mitigation? Why mitigation? 4/13/2011. Aggravation vs. Mitigation

For a conviction to occur in a criminal case, the prosecutor must

4. RELEVANCE. A. The Relevance Rule

NC General Statutes - Chapter 15A Article 100 1

CHAPTER 186. (Senate Bill 279) Criminal Law Death Penalty Repeal Evidence

1 California Criminal Law (4th), Crimes Against the Person

CHIEF JUDGE ORDER SETTING FORTH BOND GUIDELINES

The defendant has been charged with second degree murder. 1. Under the law and the evidence in this case, it is your duty to return

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE August 14, 2001 Session

Introduction to Criminal Law

Introduction to Criminal Law

STATE OF ARIZONA, Appellee, ARMANDO MEDRANO VALENZUELA, Appellant. No. 1 CA-CR and 1 CA-CR (Consolidated)

CHAPTER. OPENER- USE YOUR NOTES TO ANSWER THESE REVIEW Q s The Courts: Structure and Participants. Upper Saddle River, NJ 07458

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT **********

MINNESOTA STATUTES 2016

STATE OF LOUISIANA NO KA-0857 COURT OF APPEAL VERSUS FOURTH CIRCUIT DAVID C. MAHLER STATE OF LOUISIANA * * * * * * *

VIRGINIA ACTS OF ASSEMBLY SESSION

APPENDIX B. 7.7 MANSLAUGHTER , Fla. Stat.

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

SUPREME COURT OF ARKANSAS No

Deadly Justice. A Statistical Portrait of the Death Penalty. Appendix B. Mitigating Circumstances State-By-State.

Fifth, Sixth, and Eighth Amendment Rights

SIM GILL DISTRICT ATTORNEY

CRM 321 Mod 5 Lecture Notes

MURDER, PASSION/PROVOCATION AND AGGRAVATED/RECKLESS MANSLAUGHTER 1 N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2)

GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2005 SESSION LAW HOUSE BILL 822

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA GOVERNMENT S NOTICE OF INTENT TO SEEK THE DEATH PENALTY

Deadly Force Law & Policy

FOUR EASY STEPS TO UNDERSTANDING DETERMINATE SENTENCING LAW

STAND YOUR GROUND Provision in Chapter 776, FS Justifiable Use of Force

Bail Reform in NJ HOW WILL IT AFFECT FOREIGN NATIONALS? NO ONE REALLY KNOWS HOW IT WILL AFFECT ANYONE YET!

) NOTICE OF INTENT TO SEEK THE DEATH PENALTY

Discuss the George Zimmerman case. What defense he is expected to claim, and why may he qualify under the facts and circumstances?

In the event you find (have found) the defendant guilty of (name offense), you must then consider and answer the following question:

IN THE SUPREME COURT OF THE STATE OF KANSAS. No. 102,282. STATE OF KANSAS, Appellee, MICHAEL E. PHILLIPS, Appellant. SYLLABUS BY THE COURT

STATE OF MICHIGAN COURT OF APPEALS

I. Limits of Criminal law a. Due process b. Principle of legality c. Void for vagueness II. Mental State a. Traditional law i.

STATE OF MICHIGAN COURT OF APPEALS

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

CRIMINAL LAW JURISDICTION, PROCEDURE, AND THE COURTS. February 2017

STATE OF MICHIGAN COURT OF APPEALS

LITIGATING OFFICER INVOLVED SHOOTINGS USE OF DEADLY FORCE

COMPETENCE TO STAND TRIAL: UNSUCCESSFUL BUT INSTRUCTIVE CASES Updated July 2009

Section 9 Causation 291

Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, - against - Index #: Respondents.

STATE OF MICHIGAN COURT OF APPEALS

Testimony of. Ed Marsico Dauphin County District Attorney. Lisa Lazzari-Strasiser Somerset County District Attorney

ALABAMA COURT OF CRIMINAL APPEALS

Date Jan. 7, 2016 Original X Amendment Prepared: Bill No: HB 056 Correction Substitute. Agency Code: 264. APPROPRIATION (dollars in thousands)

No. 51,827-KA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * versus ELDRICK DONTRAIL CARTER * * * * *

STATE OF MICHIGAN COURT OF APPEALS

BENJAMIN LEE LILLY OPINION BY v. Record Nos , JUSTICE LAWRENCE L. KOONTZ, JR. November 5, 1999 COMMONWEALTH OF VIRGINIA

SCHEDULE OF LESSER INCLUDED OFFENSES COMMENT ON SCHEDULE OF LESSER INCLUDED OFFENSES

Case 4:04-cr WRW Document 416 Filed 10/31/2007 Page 1 of 11 U S. DIS i iilc I C(;CII?.I EAST LtiN I11S I t<i(; I i\l<k!

STATE OF MICHIGAN COURT OF APPEALS

OF FLORIDA THIRD DISTRICT. THE STATE OF FLORIDA, ** LOWER TRIBUNAL NO Appellee. **

Docket No Agenda 7-January THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CLIFTON MORGAN, Appellee. Opinion filed January 24, 2003.

18 USC NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see

Section 17 Lesser Evils Defense 535. Chapter Ten. Offenses Against the Person. Article One. Causing Death

Transcription:

Copyright July 1994 - State Bar of California Jane, a police officer who was not in uniform, attempted to make a lawful arrest of Al for distribution of a controlled substance. Doug, who did not know eier Al or Jane, arrived on e scene, a poorly lit alley, and did not realize at Jane was a police officer. Because Jane was wearing civilian cloes and holding a gun on Al, Doug ought Jane was robbing Al. Doug ran up and shoved Jane away from Al, who fled down e alley. Jane fired a shot at Al, killing Al. Doug en wrestled e gun from Jane and shot Jane, killing Jane. Doug was indicted for murder of Jane under a statute which mandates imposition of e dea penalty for first degree murder of a peace officer who is in e performance of her duties. During jury selection, over Doug's repeated objections, e prosecutor used his peremptory challenges to remove all African-Americans and dea penalty opponents from e jury. 1. What factual and legal defenses are available to Doug and, if ey are accepted by e jury, of what crime, if any, should Doug be convicted? Discuss. 2. If Doug is convicted, how should e appellate court rule on on argument at e prosecutor's actions during jury selection denied Doug rights under e Six and or Fourteen Amendments to e United States Constitution? Discuss. 3. If Doug is convicted of first degree murder as charged and e jury is instructed at it has no discretion as to penalty, would imposition of e dea penalty violate Doug's rights under e Eigh Amendment to e United States Constitution? Discuss. 4. Did Jane act lawfully when she shot Al? Discuss.

Copyright July 1994 - Scott F. Pearce, Esq. Outline I. Doug's defenses to homicide: A. Defense of oers: B. Self-defense: C. Doug's criminal liability: 1. First degree murder of a peace officer in e performance of her duties: 2. Homicide liability: common law murder and manslaughter. II. The prosecution's conduct during jury selection: A. Removal of African-American jurors violates e 14 Amendment. B. Peremptory challenges may be used to exclude dea penalty opponents. III. Mandatory dea penalty statutes violate e 8 Amendment. A. The 8 Amendment B. Right to Present Exculpatory Evidence C. Conclusion IV. Jane did not act lawfully when she shot Al.

Copyright July 1994 - Scott F. Pearce, Esq. Answer I. Doug's defenses to homicide: After Jane shot Al, Doug wrestled e gun away from Jane and shot her to dea. Doug has been indicted for e murder of Jane. A. Defense of oers: Doug's initial use of non-leal force on Jane was legal, despite e fact at Doug was mistaken when he ought Jane was robbing Al at gun point. In fact, Jane was making a lawful arrest of Al, for his alleged distribution of a controlled substance. Doug ran up and shoved Jane away from Al. Al fled, and Jane shot Al as he tried to escape. Doug wrestled Jane's gun away from her and shot her to dea. Doug did is immediately after Jane shot e fleeing Al. Doug's use of a deadly weapon establishes his malice. The viability of Doug's 'defense of oers' defense may depend on wheer or not e jurisdiction allows a reasonable mistake to be made by one who uses deadly force in e defense of oers. Alough Jane should not have shot Al, it is doubtful at Al would have had e right to defend himself wi deadly force, given e fact at he was fleeing a lawful arrest. If e jurisdiction requires Doug to 'stand in e shoes' of e person being defended, is defense will fail. If a reasonable mistake is allowed, Doug would have a better chance of escaping liability for killing Jane. Ultimately, is defense is likely to fail, regardless of e jurisdiction. Doug disarmed Jane. She no longer posed a reat to Al, and Doug did not make e already-wounded Al any safer by shooting Jane. B. Self-defense: One is allowed to use deadly force to overcome e deadly attack of anoer. The problem wi is defense is at Jane was not capable of making a deadly attack on Doug, because he had already disarmed her. C. Doug's criminal liability: 1. First degree murder of a peace officer in e performance of her duties:

Assuming at none of Doug's efforts at justifying e killing of Jane are successful, it is likely at Doug will escape liability for e specific charge of first degree murder of a peace officer who is in e performance of her duties. Jane was wearing civilian cloes. She never indicated at she was a peace officer. The incident happened in a poorly lit alley. Doug acted spontaneously in reaction to what he mistakenly ought was e armed robbery of Al, and he did not have time to premeditate before he shot Jane. 2. Homicide liability: common law murder and manslaughter. Doug's killing of Jane was probably not justified. Doug had disarmed Jane. She no longer presented a reat to eier Doug or e wounded Al. If e finder of fact accepts at Doug honestly, but unreasonably, believed his life was in danger, he could be convicted of voluntary manslaughter. Oerwise, it is likely at he would be convicted of common law murder. II. The prosecution's conduct during jury selection: During jury selection, over Doug s repeated objections, e prosecutor used his peremptory challenges to remove all African-Americans and dea penalty opponents from e jury. A. Removal of African-American jurors violates e 14 Amendment. The prosecutor used peremptory challenges to remove all African-American jurors. The Equal Protection Clause of e 14 Amendment guarantees e right to be tried by a jury pool at is not tainted by racial discrimination. Doug will win e right to a new trial if e prosecution cannot present a race-neutral explanation of ese peremptory challenges. B. Peremptory challenges may be used to exclude dea penalty opponents. The prosecutor used peremptory challenges to exclude dea penalty opponents from e jury. This does not give Doug any grounds for raising a 6 Amendment objection. His right to a fair and impartial jury is not compromised by e prosecutor's use of peremptory challenges. Doug would have grounds to object had dea penalty opponents been excused for cause. III. Mandatory dea penalty statutes violate e 8 Amendment. Doug has been convicted of e murder of Jane under a statute which mandates imposition of e dea penalty for first degree murder of a peace officer who is in e performance of her duties. A. The 8 Amendment The 8 Amendment protects ose convicted of crimes from cruel and unusual punishment. It guides

e rules surrounding capital punishment. B. Right to Present Exculpatory Evidence The Supreme Court has found it 'cruel and unusual' to mandate dea sentences wiout allowing e sentencing auority to consider e aggravating and mitigating factors in each case. Even ough Doug's 'defense of oers' and 'self-defense' efforts at justifying his killing of Jane are likely to fail, ey could be considered mitigating factors at would justify sparing his life. C. Conclusion If e jury is instructed at it has no discretion as to penalty, imposition of e dea penalty would be a violation of Doug's 8 Amendment rights. IV. Jane did not act lawfully when she shot Al. Jane fired a shot and killed Al, who was running away as a result of Doug's shoving Jane. Her use of a deadly weapon establishes malice. A police officer may not use deadly force to apprehend a fleeing felon unless she has probable cause to believe e felon poses a significant reat of dea or serious injury to e officer or oers, e use of deadly force is necessary to prevent e escape, and a warning is given if feasible. Distribution of controlled substances, alough harmful, is not e kind of violent felony which commonly justifies e use of deadly force in apprehending a fleeing felon. Al was apparently unarmed. He did not pose a reat to Jane, and noing in e facts suggests he posed a significant reat of dea or serious bodily injury to anybody else, eier. It appears Jane made no effort to warn Al. Jane did not appear to have sufficient time to premeditate e killing of Al to justify first degree murder liability. Had Jane lived to face charges, she probably would have been convicted of common law murder.