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Bar Prep > 09. Criminal Procedure > Flashcards

09. Criminal Procedure Flashcards

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1
Q

What type of actions do constitutional protections apply to?

A

Government action

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2
Q

When may constitutional protections apply if the actor is NOT the government?

A

1) Agents = Private persons acting as government agents
2) Defense = Defense counsel (both public and private) are treated as government actors for purposes of the 6the Amendment with respect to effective assistance of counsel

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3
Q

What is a seizure?

A

Occurs when an officer, by means of physical contact or show of authority, intentionally terminates or retrains the person’s freedom of movement

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4
Q

What is the test for whether something is a seizure?

A

Whether a reasonable person would feel free to disregard the officer and leave

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5
Q

What are the types of seizures?

A

1) Terry Stop and Frisk
2) Traffic Stops
3) Arrests

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6
Q

What is a Terry Stop?

A

An officer stops and individual when the officer has a reasonable suspicion, based on articulable facts, to believe the suspect is or is about to be engaged in criminal behavior

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7
Q

What are the types of suspicion?

A

1) Beyond a Reasonable Doubt
2) Probable Cause
3) Reasonable Suspicion

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8
Q

What type of suspicion is needed for a conviction?

A

Beyond a reasonable doubt

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9
Q

What does it mean if suspicion is beyond a reasonable doubt?

A

A firm believe in defendant’s guilt

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10
Q

What type of suspicion is needed for an arrest?

A

Probable cause

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11
Q

What does it mean if suspicion is probable cause?

A

“More likely than not” = reasonable belief crime was committed OR evidence will be found

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12
Q

What type of suspicion is needed for a Terry Stop?

A

Reasonable suspicion

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13
Q

What happens if an officer is mistaken in their reasonable suspicion?

A

An officer’s reasonable mistake of law can give rise to reasonable suspicion

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14
Q

What may an officer physically do during a Terry Stop?

A

Pat down a detainee for weapons

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15
Q

What may an officer NOT physically do during a Terry Stop?

A

Pat down a detainee for evidence UNLESS the shape of the object makes its identity obvious contraband (at which point the officers may seize the item)

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16
Q

What happens if an officer develops probable cause during a Terry Stop?

A

The officer can make an arrest

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17
Q

What happens if a Terry Stop is NOT based on adequate suspicion?

A
  • If the initial stop is unlawful BUT the officer develops the basis for a lawful arrest during the stop, then evidence seized can be used at trial
  • If the initial stop is unlawful AND no basis develops to make a lawful arrest, then evidence seized during the arrest cannot be used at trial
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18
Q

What level of suspicion is needed to stop a car?

A

Reasonable suspicion

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19
Q

When does an officer NOT need reasonable suspicion to stop a car?

A

At checkpoints where everyone is being stopped

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20
Q

What may an officer do following a lawful traffic stop?

A

Once there is a lawful stop, officers may pat down an occupant for weapons IF they have reasonable suspicion that the person has a weapon

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21
Q

What is needed to make an arrest?

A

There must be probable cause (objective) to believe that the arrested individual has committed a crime

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22
Q

Is a warrant needed for an arrest?

A

No; arrests may be made with or without a warrant

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23
Q

What is a pretext arrest?

A

As long as the police have PC to believe an individual committed a crime, it is irrelevant whether the officer stopped that person for the crime for which there is PC or for some other crime

NOTE: Fine under 4A, but may be issues under EPC if the officers choose who to stop based on race or other discriminatory criteria

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24
Q

What is a warrant?

A

Authorizes an officer to arrest a particular person

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25
Q

What is required for a warrant to be valid?

A

1) Neutral = Be issued by a neutral and detached magistrate
2) PC = Be based on a finding of probable cause to believe that the named individual has committed a particular crime
3) Identify = Name the person and identify the offense

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26
Q

What does it mean once a warrant is issued?

A
  • Allows officers to enter an individual’s home to arrest that individual
  • Does NOT authorize officers to enter a third party’s home or business

NOTE: Must also have a search warrant to search the premises for the individual or meet an exception to the warrant requirement

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27
Q

When can officers arrest someone inside a dwelling if they do NOT have an arrest warrant?

A

1) There are exigent circumstances
2) There is consent to enter

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28
Q

When may an officer make a warrantless arrest?

A

An officer can arrest an individual without a warrant in a public place, either for a crime committed in the officer’s presence OR based on probable cause to believe the individual committed a felony

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29
Q

If a crime was NOT committed in the officer’s presence, what is required to make a warrantless arrest?

A

The crime committed was a felony (+ PC)

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30
Q

What happens if there is an unlawful or illegal arrest (e.g., no probable cause)?

A

While this does not stop prosecution for the crime, is might result in the exclusion of evidence discovered during the arrest

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31
Q

What is SILA?

A

A lawful arrest permits the arresting officers to make a contemporaneous search of the person arrested and the immediate surrounding area to:
1) Protect officers from weapons or other danger; AND
2) Prevent the destruction or concealment of evidence

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32
Q

T or F: Any evidence discovered an seized during a SILA search can be used against the person arrested

A

True

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33
Q

What is the area that may be subject to SILA for an arrest on the street?

A

Suspect + suspect’s wingspan

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34
Q

What is the area that may be subject to SILA for an arrest at home?

A

Suspect + immediate arrest area

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35
Q

What is the area that may be subject to SILA for an arrest in a car?

A

Passenger compartment of a vehicle as long as the person/suspect still has access to the vehicle at the time

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36
Q

When may officers search a car after a suspect is restrained or in the squad car?

A

If there is reasonable suspicion that evidence of the offense of arrest might be found in the vehicle

37
Q

What is an inventory search?

A

When police arrest a driver and impound the car, it may be searched for inventory purposes

38
Q

What happens if officers seize a cellphone?

A

During an arrest, officers may seize the suspect’s cellphone, but CANNOT search the phone for digital information; police need a search warrant to search the phone’s digital information

39
Q

What are the 7 exceptions to a search warrant?

A

1) S = SILA
2) Ad = Administrative, special needs, and inventory searches
3) S = Stop & frisk
4) P = Plain view
5) A =Automobiles
6) C = Consent
7) E = Exigent circumstances
8) S = Special government purpose

“SAd SPACES”

40
Q

What are the 3 requirements for a statutory scheme imposing a death penalty to be constitutional?

A

The statutory scheme must provide:
1) Standards = Clear and objective standards;
2) Guidance = Specific and detailed guidance; AND
3) Review =An opportunity for rational review of the process

“Sour Red Grapes”

41
Q

What are the 7 exceptions to the exclusionary rule?

A

1) Inevitable Discovery
2) Independent Source
3) Attenuation
4) Good-Faith
5) Isolated Police Negligence
6) Knock & Announce
7) In-court Identification

42
Q

When would the good-faith exception to the exclusionary rule NOT apply?

A

1) No reasonable officer would rely on the affidavit underlying the warrant
2) The warrant is defective on its face
3) The warrant was obtained by fraud
4) The magistrate has “wholly abandoned his judicial role”
5) The warrant was improperly execution

43
Q

What is the Blockburger Test?

A

Two crimes committed in one criminal transaction are deemed to be the same offense for 6th Amendment purposes UNLESS each offense requires proof of an element that the other does not.

44
Q

What does the 5th Amendment’s prohibition of double jeopardy protect against?

A

1) 2nd prosecution for the same offense after acquittal
2) 2nd prosecution for the same offense after conviction
3) Multiple punishments for the same offense

45
Q

How can probable cause be established through a tip?

A

Probable cause to support a search warrant can come from information supplied by:
1) A reliable, known informant; OR
2) An unknown informant if the information is independently verified

46
Q

What does the 5th Amendment privilege against self-incrimination NOT apply to?

A

1) Evidence that might subject a person to civil liability
2) Corporations

47
Q

When does the 6th Amendment right to counsel attach?

A

1) Automatically once formal judicial proceedings commence
2) Thereafter during all critical stages of prosecution

48
Q

What are considered formal judicial proceedings for purposes of the 6th Amendment right to counsel?

A

1) Indictment
2) Filing of formal charges
3) Preliminary hearing
4) Arraignment

49
Q

What are the 3 grounds for dismissing and indictment?

A

1) Deficient indictment
2) Defective grand jury proceedings
3) Constitutional violation

50
Q

What constitutes a deficient indictment for purposes of dismissal of indictment?

A

1) Fails to charge actual crime
2) Omits elements of crime
3) Statute of limitations has run
4) Improper venue or jurisdiction

51
Q

What constitutes defective grand jury proceedings for purposes of dismissal of indictment?

A

1) Admission of unqualified grand juror
2) Exclusion of grand juror based on race/gender
3) Prosecutorial misconduct

52
Q

What constitutes a constitutional violation for purposes of dismissal of indictment?

A

1) 5th Amendment double jeopardy clause
2) 6th Amendment right to speedy trial
3) 5th/14th Amendment due process clauses

53
Q

What happens if a defendant is indicted by a grand jury that excluded members of a racial group?

A
  1. Defendant may raise an equal protection challenge (even if the defendant is not a member of the excluded group)
  2. If deliberate discrimination is found, the conviction must be automatically reversed on appeal
54
Q

What are the critical stages for 6th Amendment right to counsel?

A
  1. Post-indictment: lineups, in-person identifications, interrogations
  2. Arraignments, preliminary hearings, bail hearings, pretrial motions
  3. Plea negotiations & hearings
  4. Trial & sentencing
55
Q

When is there no double jeopardy protection?

A
  1. No attachment
  2. Mistrial
  3. Appeal
  4. New facts
  5. Guilty plea to lesser offense
56
Q

What is a search?

A

Occurs when government conduct violates a reasonable expectation of privacy

57
Q

What is government conduct for purposes of a search?

A
  • Can occur with physical intrusion upon private property
  • A search can occur without a physical intrusion
  • Using some types of technology constitutes a search
58
Q

Where do you have an expectation of privacy against the government?

A

1) Houses
2) Hotel rooms
3) Officers
4) Luggage
5) Curtilage

NOTE: You have a reasonable expectation of privacy in your car, though it is more limited

59
Q

Where do you NOT have an expectation of privacy against the government?

A

1) Public streets
2) Open fields (even private property)
3) Abandoned property
4) Garbage cans left on the street

60
Q

What is the warrant requirement?

A

Generally, the government needs a search warrant to conduct a search if there is a reasonable expectation of privacy

61
Q

What are the 3 requirements for a valid warrant?

A

1) Neutral = A search warrant must be issued by a neutral magistrate
2) PC = Must be based on probable cause to believe that the items sought are fruits, instrumentalities, or evidence of crime
3) Particularity = Must describe the property and place to be searched with particularity

62
Q

What happens if all the warrant requirements are not met?

A

The warrant is invalid & the items seized pursuant to the warrant will be excluded from the prosecutor’s case-in-chief

63
Q

T or F: Wiretapping constitutes a search

A

True

64
Q

What do you need to wiretap?

A

Probable cause and a warrant, which must:
1) Specifically identify whose conversations are to be intercepted
2) Include an end date for the warrant
3) Perform minimization

65
Q

What are the 7 major exceptions to the warrant requirement?

A

1) E = Exigent circumstances
2) S = SILA
3) C = Consent
4) A = Automobiles
5) P = Plain view
6) E = Evidence obtained from administrative searches
7) S = Stop & Frisk

“ESCAPES”

66
Q

What is a search incident to lawful arrest?

A

If the arrest is lawful, a search warrant is unnecessary in order to search the person being arrested and the immediate surrounding area for weapons or evidence.

  • Protective Sweep = officers may search for other people if the arrest takes place in a home
  • Automobile = arrestee must be within reach of the passenger compartment to search it
  • DNA = samples may be collected as part of SILA
  • Cellphones = CANNOT search digital contents
67
Q

What is the automobile exception to the warrant requirement?

A

If police have probable cause to believe an automobile contains contraband, they can search those parts of the vehicle that might contain contraband, even without an arrest

68
Q

What is the plain view exception to the warrant requirement?

A

If police are legally present, they can seize any item in plain view (or plain smell), even if that item was not named in the warrant

69
Q

What are the 2 types of administrative searches police do NOT need a warrant for?

A

1) Administrative warrants (e.g., fire or health inspections of a building)
2) Warrantless Administrative Searches = used to ensure compliance with various administrative regulations

70
Q

What does the 5th Amendment provide?

A

No person shall be compelled in any criminal case to be a witness against himself

71
Q

What is the scope of the right against self-incrimination?

A

1) Natural: Applies to natural persons, not corporations or unions
2) Testimony: Applies to testimonial evidence, not physical evidence
3) Link: Applies to testimony that would be a link in the chain leading to prosecution or conviction (e.g., as long as there is reason to believe the testimony MIGHT lead to future criminal prosecution, an individual is entitled to invoke the 5th Amendment)
4) Immune: If someone is given immunity from prosecution for their statements, they cannot continue to refuse to answer

72
Q

What are statements by an individual?

A

Statements made by the individual to the government

73
Q

What is the Miranda rule?

A

Statements made as a result of custodial interrogation are inadmissible unless they are accompanied by procedural safeguards (i.e., Miranda warnings)

74
Q

What does custodial mean?

A

The person being questioned has been arrested or is not otherwise free to leave

75
Q

Are Miranda warnings needed if you are not in custody?

A

No, and any statement or silence can be used

76
Q

Is someone who is already imprisoned in custody?

A

Not necessarily. The prisoner is not in custody if he is free to be taken back to his cell or return to general population.

77
Q

What does interrogation mean?

A

Involves either the official asking questions or engaging in other words or conduct that police know or should know will elicit a response

78
Q

What is not included in interrogation?

A

1) Volunteered statements
2) Routine booking questions

79
Q

What are the Miranda warnings?

A

1) You have the right to remain silent
2) Any statement you make may be used against you in court
3) You have the right to consult an attorney and to have the attorney present during questioning
4) You have the right to have an attorney appointed if you cannot afford one

80
Q

Must a defendant understand the rights guaranteed under Miranda?

A

Yes, and the officer must ask whether the defendant understands the rights

81
Q

What does “understand” mean for Miranda warnings?

A
  • Defendant understands English
  • Defendant can hear
  • Defendant actually heard what was said
82
Q

When must police cease questioning following Miranda warnings?

A

1) Invoking the right to remain silent
2) Invoking the right to counsel

83
Q

What happens if a defendant invokes the right to remain silent?

A
  • If a defendant says she does not want to talk, the interrogation must stop
  • The right must be affirmatively invoked; it is not enough to just remain silent
  • Can resume interrogation after a substantial period of time and giving the warnings again
84
Q

What happens if a defendant invokes the right to counsel?

A
  • Right must be affirmatively & unambiguously invoked
  • If the right to counsel is invoked, all questioning must stop until either:
    i) The lawyer is present; OR
    ii) The defendant affirmatively initiates contact with police. Police cannot generally go back to the defendant.
85
Q

What is the public safety exception to Miranda?

A

When public safety is at risk, the police do NOT have to give Miranda warnings before questioning (e.g., there is a ticking time bomb in a grocery store)

86
Q

What are some limits on interrogation tactics?

A
  • Confessions must be voluntary
  • Statements obtained by threats, even after Miranda warnings, are inadmissible
  • Confessions can be the produce of deceit
87
Q

What happens if statements are obtained involuntarily?

A
  • An involuntarily obtained statement is NEVER admissible against a defendant
  • Whether to overturn a conviction depends on the harmless error standard
  • Evidence obtained as the result of an involuntary statement is fruit of the poisonous tree and is presumptively inadmissible
88
Q

What happens if statements are obtained in violation of Miranda?

A
  • Inadmissible in the prosecution’s case in chief, but may be admissible to impeach the defendant to challenge his credibility
  • Evidence obtained as a result of a voluntary statement taken in violation of Miranda is admissible

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