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Louisiana Bar Exam July 2023- Created By Maryclaire Farrington > 26. Criminal Procedure and Evidence > Flashcards

26. Criminal Procedure and Evidence Flashcards

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1
Q

Detention by Officers

A

To detain someone for ANY PERIOD OF TIME officers must have reasonable suspicion that they committed a crime

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2
Q

Reasonable Suspicion

A

a belief that the suspect committed a crime

the belief must be based on more than a hunch,
rather, on ARTICULABLE FACTS

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3
Q

Warrantless Vehicular Search

to justify a warrantless vehicular search incident to the arrest conducted AFTER vehicle’s recent occupants have been secured . . .

A

4th am requires:

  • ACTUAL and CONTINUING threat to officer safety posed by an arrestee OR
  • a need to preserve evidence related to the crime of arrest
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4
Q

Fourth Amendment

A

provides persons should be free in their persons and effects from unreasonable searches and seizures

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5
Q

When search and seizure prohibitions apply

A

search and seizure prohibitions apply only when law enforcement officers search for evidence in a place where a person has a “reasonable expectation of privacy.”

a SEIZURE must be supported by probable cause or reasonable suspicion the suspect committed the crime

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6
Q

Reasonable Expectation of Privacy

A

based on a totality of the circumstances, considering factors such as ownership of the place searched and location of the item seized

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7
Q

Seizure

A

when under the totality of the circumstances, a reasonable person would feel he was NOT free to go

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8
Q

Warrant Requirements

A
  1. issued by a neutral and detached magistrate
  2. based on probable cause established from facts submitted to magistrate by gov agent upon oath/ affirmation
  3. describes the place to be searched and items to be seized with particularity

4th amendment requires officers to get a warrant if no exception applies

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9
Q

Exceptions to Warrant Requirement: Warrantless Search

A

= when warrantless search is reasonable and valid under 4th am

  1. automobiles
  2. plain view
  3. consent
  4. exigent circumstances
  5. search incident to lawful arrest
  6. searches incident to impoundment

NO exception for search of home EVEN IF officers have probable cause

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10
Q

Warrant Exception: Automobiles

A

if police have probable cause to believe a vehicle may contain evidence, contraband, or a fruit or instrumentality of a crime they can search vehicle without a warrant

if have FULL probable cause, they can search entire vehicle AND ALL CONTAINERS within the vehicle that may contain the object they are searching for

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11
Q

Warrant Exception: Plain View

A

police may make warrantless seizure when they are:

  1. legitimately on the premises
  2. discover evidence, contraband, or a fruit or instrumentality of a crime
  3. see such evidence in plain view AND
  4. have probable cause to believe the item is evidence, contraband, or a fruit or instrumentality of a crime
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12
Q

Warrant Exception: Consent

A

police may conduct valid warrantless search if they have voluntary consent to do so

  • scope of search limited to scope of consent (extends to any place reasonably believes it extends to)
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13
Q

Warrant Exception: Consent of Another Person

A

person with apparent equal right to use or occupy the prop may consent to a search and evidence found may be used against owners/occupants

  • CONSENT TO SEARCH IN A DWELLING IS INVALID IN THE PRESENCE OF AN OBJECTING CO-OCCUPANT
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14
Q

Warrant Exception: Exigent Circumstances

A
  • hot pursuit
  • destruction of evidence
  • evanescent evidence
  • emergency aid
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15
Q

Exigent Circumstance: Hot Pursuit

A

police in hot pursuit of a fleeing felon may make a warrantless search and seizure

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16
Q

Exigent Circumstance: Destruction of Evidence

A

police may enter home without warrant to prevent the destruction of evidence

police must have reason to believe evidence is being destroyed

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17
Q

Exigent Circumstance: Evanescent Evidence

A

evidence likely to disappear before warrant can be obtained

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18
Q

Exigent Circumstance: Emergency Aid

A

emergencies that threaten HEALTH or SAFETY if not immediately acted upon

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19
Q

Warrant Exception: Search Incident to Lawful Arrest

A

police may conduct a warrantless search incident to an arrest as long as it was made on probable cause

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20
Q

Warrant Exception: Search Incident to Lawful Arrest and Searching Cars

A

AFTER arresting occupant of a car, police can search INTERIOR of car incident to arrest IF:

  1. arrestee is unsecured and still may gain access to the interior of the car OR
  2. police reasonably believe evidence of the offense for which the person was arrested may be found in the vehicle
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21
Q

Warrant Exception: Search Incident to Lawful Arrest and Searching Phones

A

unanimous RILEY SCOTUS decision: warrantless search and seizure of the contents of a mobile phone incident to an arrest VIOLATES the Fourth Amendment

does not apply if a search of the phone is necessary either to protect officer safety or to preserve evidence

Balancing Test

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22
Q

Balancing Test For Searching Phone

A

court balances degree to which search incident to arrest INTRUDES upon a person’s privacy against the degree to which the search is needed to promote legitimate gov interests

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23
Q

Warrant Exception: Searches Incident to Impoundment

A

when officers impound a vehicle, they may conduct an inventory search of the vehicle EVEN WITHOUT PROBABLE CAUSE so long as the search is pursuant to police department policy

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24
Q

Arrest

A

= when police take a person into custody against her will for purposes of criminal prosecution or interrogation

  • MUST be based on probable cause (based on totality of circumstances)
  • do not need a warrant
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25
Q

Officer’s Knowledge Requirement for Arrest

A

officer must have knowledge of reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe the suspect has committed a crime which arrest is authorized by law

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26
Q

Invalidating a Warrant

A

to invalidate warrant issued on the basis of a affidavit, claimant must prove:

  1. a false statement was included in the affidavit by the affiant
  2. the affiant intentionally or recklessly included that false statement AND
  3. the false statement was material to the finding of probable cause
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27
Q

Scope of Warrant

A

limited to what is reasonably necessary to discover the items described in the warrant

does NOT authorize police to search PERSONS found on the premises who are NOT NAMED in the warrant (can search those incident to arrest)

+ limited authority to detain occupants on the premises when the search is being conducted

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28
Q

Stop and Frisk

A

police have authority to briefly detain a person for investigative purposes EVEN IF THEY LACK PROBABLE CAUSE

must have reasonable suspicion supported by ARTICULABLE facts of criminal activity or involvement in a completed crime

may conduct a frisk to ensure there are no weapons

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29
Q

Frisk for Weapons

A

police can reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its “plain feel”, is a weapon or contraband

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30
Q

Executing Warrant

A
  • only police can execute a warrant
  • officer must knock and announce and wait for admittance for a reasonable time OR be refused admittance to use force to enter
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31
Q

When No Knock/ Announce Required

A

if officer has reasonable suspicion based on facts that knock/announce would be
dangerous or futile or
would inhibit the investigation

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32
Q

Detention: Obtaining Warrant

A

If police have probable cause to believe the suspect has hidden drugs in his house, they can prohibit him from going into the house unaccompanied to prevent him from destroying drugs while they obtain a warrant

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33
Q

Detention: Automobile Stops (Stop and Frisk)

A

stopping car = seizure for 4th amendment purposes

Police officers may NOT stop a car without reasonable suspicion the law has been violated

  • can seize occupants or order occupants out
  • may only search the areas in which a weapon might be placed or hidden AND the officer has reasonable belief that the occupant is dangerous
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34
Q

Confessions

A

to be admissible, DPC of 14th am requires confession is VOLUNTARY

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35
Q

Voluntariness of Confession

A

assed by totality of circumstances:

  • suspects age/ education/ mental & physical condition AND
  • setting/ duration/ manner of police interrogation
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36
Q

Involuntary Confession

A

product of threats/ coercion/ other duress

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37
Q

Interrogation

A

= express questioning or words and actions on the part of police that police should know are reasonably likely to elicit an incriminating response from the suspect

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38
Q

Spontaneous Statements

A

Miranda does not apply to spontaneous statements not made in response to interrogation

officers must give Miranda Warnings before asking follow-ups

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39
Q

5th Amendment Right Against Self-Incrimination

A

Miranda Warnings + valid waiver = prerequisites to admissibility of any statement made by the accused during custodial interrogation

A statement obtained through a custodial interrogation may not be used against a suspect in a criminal trial unless the suspect waives his right to remain and silent and right to counsel after being so informed by the police — officer must read the Miranda rights in full for any statements made thereafter to be admissible

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40
Q

Miranda Applicability

A

Anyone in police custody AND accused of a crime, no matter how minor, must be given Miranda warnings PRIOR to interrogation by the police

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41
Q

Detainee’s Rights After Read Miranda Rights

A

After receiving Miranda warnings, a detainee can:
1. do nothing
2. waive his rights
3. assert the right to remain silent OR
4. assert the right to consult with an attorney

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42
Q

Miranda - Doing Nothing

A
  • court will not presume waiver of rights
  • court will also not presume detainee has asserted right to remain silent or consult attorney [so police can continue to question]
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43
Q

Miranda - Waiving Rights

A

to be valid, gov must show by a preponderance of the evidence that the waiver was VOLUNTARY AND KNOWING, looking at totality of the circumstances

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44
Q

Miranda - Invoking Right to Remain Silent

A

invocation must be explicit, unambiguous, and unequivocal (mere refusal to speak is not enough)

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45
Q

What happens after invoking the right to remain silent?

A
  • can be invoked at any time
  • questioning related to that particular cirme must immediately stop and they must SCRUPULOUSLY HONOR the request (can’t badger)
    • can reinitiate after, so long as they WAIT a significant time before reinitiating questioning (scrupulously honoring)
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46
Q

Custody

A

determining custody is a TWO-STEP inquiry:

  1. whether a reasonable person under the circumstances would feel that he was free to terminate the interrogation and leave AND
  2. whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda

test depends on the OBJECTIVE circumstances of the interrogation

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47
Q

Miranda - Invoking Right to Counsel

A
  • ANY TIME prior to or during interrogation, the detainee can invoke a right to counsel.
  • request must be unambiguous and specific
48
Q

Unambiguous and Specific Invocation of Right to Counsel is . . .

A

sufficiently clear that a reasonable police officer in the same situation would understand the statement to be a request for counsel

49
Q

What happens after invoking Miranda right to counsel

A

ALL questioning must CEASE until the detainee is provided with an attorney or initiates further questioning himself

  • cannot question the detainee about an unrelated crime.
50
Q

Exclusionary Rule

A

judge-made doctrine that prohibits the introduction, at a criminal trial, of evidence obtained in violation of a defendant’s 4th/ 5th/ 6th am Rights

fruit of the poisonous tree = not only must illegally obtained evidence be excluded, but also all evidence obtained or derived from exploitation of that evidence

in application, balance rule’s purpose against costs

51
Q

Suggestive Lineup

A

Involves either:

  • the use of a single suspect OR
  • distracter/fillers who have a very different appearance from the suspect
52
Q

IF LINEUP IS CONDUCTED CLOSE IN TIME AND PLACE OF CRIME . . .

A

“NECESSARILY” SUGGESTIVE and will NOT be excluded

53
Q

suspect has a right to the presence of an attorney at any ___ lineup

A

suspect has a right to the presence of an attorney at any POST CHARGE lineup

54
Q

Challenge to Suggestive Lineup

A

it is a denial of due process when the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification

55
Q

Right to Confront Witnesses

A

6th Am. Confrontation Clause

prior TESTIMONIAL evidence may NOT be admitted UNLESS:

  1. the declarant is unavailable
    AND
  2. the defendant had an opportunity to cross-examine the declarant at the time the statement was made

ask, is it non-testimonial? did the defendant MAKE the witness unavailable?

56
Q

Testimonial Classification

A
  • NON-TESTIMONIAL = primary purpose of the police interrogation is to enable the police to help in an ongoing emergency (e.g. calling 911)
  • TESTIMONIAL = made to establish or prove past events potentially relevant to a later criminal investigation
57
Q

Taking a Plea

A

judge must determine the plea is VOLUNTARY AND INTELLIGENT

  • must be done personally in open court, on the record
  • court must ensure the defendant KNOWS:
    • nature of the charge + crucial elements
    • max possible penalty + mandatory minimum
    • right NOT to plead guilty and go to trial
58
Q

6th Amendment

A

provides that in all criminal prosecutions, the defendant has a right to the assistance of counsel, which applies at all CRITICAL stages of a criminal prosecution

59
Q

Double Jeopardy

A

under dual sovereignty doctrine, Double Jeopardy clause of the 5th Am applies ONLY to prosecutions of the same criminal act by the same SOVEREIGN

federal gov and state are separate sovereigns so can bring separate prosecutions

60
Q

Sequestration of Witnesses

A

LA Rule of Evidence 615

“on request of a party the court shall order that the witnesses be excluded from the courtroom … and refrain from discussing the facts of the case with anyone other than counsel in the case”

certain witnesses (e.g., parties and victims) may not be excluded

61
Q

Convictions vs. Crimes

A

evidence of prior criminal CONVICTIONS = generally admissible for impeachment purposes

evidence of UNCONVICTED crimes/ wrongs/ acts is NOT admissible to prove the character of a person to show he acted in CONFORMITY therewith

62
Q

Juror Challenge “For Cause”

A

if the relationship whether by blood/ marriage/ employment/ friendship/ enmity between juror and the defendant is such that it is REASONABLE to conclude that it would influence the juror in arriving at a verdict

mere casual acquaintance = not sufficient ground for a challenge for cause

63
Q

Joinder of Offenses

A

In Louisiana, the state may charge two or more offenses in the same indictment in a separate count for each offense if:

  1. they are of the same or similar character, or
  2. they are based on the same act or transaction or two or more acts or transactions connected together or part of a common scheme, and
  3. they are triable by the same mode of trial

IF NOT = QUASH FOR MISJOINDER OF OFFENSES

64
Q

Grounds to Force Judge’s Recusal

A
  • when he has been employed or consulted as an attorney in the cause, or
  • has been associated with an attorney during the latter’s employment in the cause
65
Q

Amendment to Indictment

A

obtain leave of court to amend the indictment

When there is a VARIENCE between the allegations of an indictment/ bill of particulars which state the particulars of the offense, AND the evidence offered in support thereof, the court may order the indictment or bill of particulars amended in respect to the variance, and then admit the evidence.

66
Q

Relevance

A

Probative of a fact or consequence

67
Q

When Trial Court can Exclude Relevant Evidence

A

trial judge has BROAD DISCRETION to exclude relevant evidence if its probative value is substantially outweighed by the danger of:

  • unfair prejudice
  • confusion of the issues
  • misleading jury
  • undue delay
  • waste of time
68
Q

Specific Acts of Misconduct

A

When a person is charged with a crime, extrinsic evidence of other crimes or misconduct is INADMISSIBLE to PROVE THE CHARACTER of the person to show they acted in conformity

69
Q

Admissible Specific Acts of Misconduct

A

only admissible if INDEPENDENTLY relevant for other purposes:

  • motive
  • intent
  • absence of mistake / accident
  • identity
  • common plan or scheme
  • res gestae

MIMIC-R

70
Q

Hearsay

A

A statement offered in evidence to prove the TRUTH of the matter asserted

71
Q

NOT Hearsay

A
  • NOT being used to prove the truth of the matter asserted!
  • prior statement by testifying witness IF witness was subject to cross-examination about the statement
  • admissions of party-opponent (statement made by opposing party and offered against that party)
  • events speaking for themselves under the immediate pressure of the occurrence
72
Q

Hearsay Exception - Former Testimony

A

The testimony of a now unavailable witness, given at another hearing or a different proceeding, is admissible if:

  1. the party against whom the testimony is offered was a party in the former action;
  2. the former action involved the same subject matter; AND
  3. the party against whom testimony is offered had an opportunity at the prior proceeding to develop the declarant’s testimony
73
Q

Hearsay Exceptions when Declarant is Unavailable

A
  • former testimony
  • against pecuniary/ proprietary interest
  • dying declarations
  • statements of personal/ family history
74
Q

Statement Against Interest

A

unavailable declarant hearsay exception

statement of a person may be admissible if it was AGAINST that person’s pecuniary or proprietary interest when made, OR would expose him to CRIMINAL or CIVIL liability such that a reasonable person in the declarant’s situation would have only made the statement if true

75
Q

Dying Declarations

A

unavailable declarant hearsay exception

speaker believed death was imminent and the statement concerned the cause or circumstances of what he believed to be his impending death

76
Q

Statement of Personal/ Family History

A

unavailable declarant hearsay exception

statements concerning births, marriages, divorces, relationship, genealogical status, etc.

77
Q

Hearsay Exceptions - Irrespective of Availability of Declarant

A
  • present sense impression (explaining event while happening/ immediately after)
  • excited utterance
  • state of mind
  • physical condition
  • records
  • memo to revive memory
  • medical treatment
78
Q

State of Mind Hearsay Exception

A

A statement of a declarant’s then-existing state of mind, emotion, sensation, or physical condition is admissible.

79
Q

Excited Utterance Hearsay Exception

A

An out of court statement related to a startling event, made while under the stress or the excitement from the event, is admissible.

80
Q

Res Geste Hearsay Exception

A

A statement is admissible if it explains an event or condition while it is happening or immediately thereafter.

81
Q

Physical Condition Hearsay Exception

A

Declarations of physical condition, including a present bodily condition or past bodily condition, are admissible.

82
Q

Records Hearsay Exception

A

Any records of regularly conducted activity are admissible, as are public records and reports, ancient documents affecting property, and other records.

83
Q

Reviving Memory Memo Hearsay Exception

A

If witness’s memory cannot be revived, a party can introduce a memo that the witness made at or near the time of the event.

84
Q

Character Evidence

A

The prosecution CANNOT initiate evidence of the bad character of the defendant to show he is more likely to have committed the crime he is accused of.

Evidence of other crimes, wrongs, or acts is NOT generally admissible to prove the character of a person to show he acted in CONFORMITY therewith.

85
Q

Character Evidence OFFERED BY D in a criminal case

A
  • ACCUSED is permitted to offer reputation evidence of a pertinent trait of his own character
  • witness CANNOT testify to his own personal opinion of the D OR to specific acts of D to prove trait in issue

if D does this… PROSECUTION CAN REBUT by cross-examining witness’s knowledge of D’s bad reputation OR by calling witnesses to testify to D’s BAD REPUTATION FOR THE PERTINENT TRAIT

86
Q

Victim’s Character

A

If the defendant can show a hostile demonstration or overt act by the victim at the time of the offense charged, the defendant can introduce reputation evidence of a pertinent trait of the victim’s character or evidence of prior threats by the victim against the defendant.

Once the defendant has introduced reputation evidence of a bad character trait of the victim, the prosecution can counter with reputation evidence of the victim’s GOOD character for the same trait.

87
Q

Self-Defense/ Character Evidence

A

In a HOMICIDE prosecution where the defendant pleads self-defense, evidence that the victim was the first aggressor OPENS THE DOOR to reputation evidence that the victim had character for peacefulness.

This can be introduced REGARDLESS if the defendant introduced the victim’s character for violent propensity.

88
Q

Best Evidence Rule

A

To prove the TERMS of a writing, the original writing MUST be produced if the terms of the writing are MATERIAL.

Secondary evidence of the writing is admissible ONLY if the original is UNAVAILABLE.

89
Q

Competency of Witnesses

A
  • presumed until proof of contrary is demonstrated
  • PERSONAL knowledge is required
  • witness must declare he will testify truthfully
90
Q

Witnesses and Memos

A

witness CANNOT READ her testimony from a prepared memo.

memo MAY be used to:

  • refresh the recollection of the witness
  • to substitute for the witness’s forgotten testimony upon authentication of the memo
  • in cross-examination of the witness
91
Q

Scope of Cross Examination

A

Louisiana allows “WIDE OPEN” cross-examination, meaning a witness may be cross-examined on ANY matter relevant to any issue in the case

(not just matters raised on direct!)

92
Q

Impeachment Evidence

A

ANY matter than tends to prove or disprove the credibility of the witness will be admitted to impeach the witness’s testimony.

In criminal cases, evidence of a conviction of ANY CRIME is admissible to impeach the credibility of the witness, including the accused.

93
Q

“Any Crime, Any Time”

A

Under the “any crime, any time” principle, any witness who testifies in a criminal case may be cross-examined as to ANY prior CONVICTION, regardless of when it occurred.

94
Q

Expert Testimony: When Permitted

A

admissible if the subject matter is where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact at issue

95
Q

Expert Testimony: Requirements/ Limits

A
  • MUST be relevant and the methodology underlying the opinion must be reliable
  • MUST be supported by a proper factual basis and MAY embrace the ULTIMATE issue
    • in a criminal case an expert may NOT express an opinion as to the guilt or innocence of the accused
96
Q

Opinion Testimony by Lay Witnesses

A

generally inadmissible EXCEPT FOR:

  1. the general appearance or condition of a person
  2. the state of emotion of a person
  3. matters involving sense recognition
  4. voice or handwriting identification
  5. the speed of a moving object
  6. the value of his own services
  7. the rational or irrational nature of another’s conduct
  8. intoxication of another
97
Q

Medical Treatment Hearsay Exception

A

allows the introduction of statements relating to
”general” information that is “reasonably pertinent” to treatment or diagnosis

DOES NOT INCLUDE THE PRECISE IDENTITY of the individual who inflicted an injury

98
Q

Authentication

A

counsel must offer evidence sufficient to support a finding that the thing is what the proponent claims it to be

call someone to stand to testify to its authenticity/ “fair and accurate representation

99
Q

Probationer’s reduced Expectation of Privacy

A

In Louisiana, a probationer has a REDUCED expectation of privacy — allows a probation officer to conduct unannounced visits to verify that the probationer is in compliance with the provisions of his probation

as condition of probation probationer agrees to searches of:
- his person
- his property
- residence
- his vehicle,
- his personal effects
at any time by the probation officer or the parole officer assigned to him, with or without an arrest warrant or search warrant, when the officer has reasonable suspicion to believe that the probationer is engaged in or has been engaging in criminal activity

NOT a Fourth Amendment violation to conduct a warrantless search of a probationer’s home under these circumstances

100
Q

Expectation of Privacy in Objects Held out to Public

A

A person does NOT have a reasonable expectation of privacy in objects held out to the public.

entry to a home is within the curtilage protected by the 4th Am against unreasonable searches, a police officer MAY approach a home in hopes of speaking to its occupants, just like a private citizen

+ talk about plain view exception

101
Q

When Leading Questions are OK for your OWN witness

A
  1. if they become adverse/ hostile witness
  2. wit fails to respond to proper questioning
  3. questions necessary to develop testimony (e/g/ background/ uncontroverted issues)
102
Q

Prior Conviction

A
  • can come in if it is a felony and that is an ELEMENT of the offense
  • can use to impeach if D testifies even if not an element
  • cannot use as evidence of D’s bad character and he acted in conformity with
103
Q

Severance of Defendants

A

file motion to sever

granted where justice requires (i.e. where Ds will blame each other)

104
Q

Motion for Change of Venue

A

applicant must prove by reason of prejudice existing in the public mind—or for any other reason—a fair and impartial trial cannot be obtained in the present parish

prejudice: judged from a quantitative and qualitative standpoint

105
Q

At the end of the trial, Dr. Green and Jack are convicted on all counts. After the jury foreman announces the verdict, the judge asks the attorneys if there is any other matter that needs to be addressed. What, if anything, should they do?

A

The defense lawyers should request that the clerk poll the jury to determine whether each juror, in fact, voted to find each defendant “guilty” of each count.

If the number required to reach a verdict do not answer “yes,” the court may remand the jury for further deliberation or declare a mistrial.

106
Q

Partial Miranda Warnings

A

if start, but do not finish, statements are not admissible and must be suppressed

107
Q

4th Amendment Particularity Requirement

A

The Fourth Amendment’s “particularity” requirement mandates that a warrant must specify the places to be searched AND the things to be seized.

A search warrant authorizes police to search ONLY in places where they might reasonably find the items described with particularity in the warrant. Any search broader than that is “unreasonable.”

108
Q

Lying Police Officers

A

deceptive tactics are permissible so long as they are not “COERCIVE” — may not give the “third degree” / threaten with physical violence

109
Q

Statement Obtained Involuntary

A

involuntary = under circumstances that undermined the accused’s free will
- sedative
- incoherent
“totality of circumstances”

INADMISSABLE

110
Q

Statements Not Made In Custody

A

Miranda DOES NOT apply if not in custody

111
Q

Fruit of the Poisonous Tree

A

Any evidence obtained as the result of an arrest made in violation of the Fourth Amendment must be suppressed as a “fruit of the poisonous tree.”

NOT a bar to subsequent prosecution

112
Q

Blood Alcohol Evidence

A

Birchfield held that the Fourth Amendment requires the issuance of a search warrant from a neutral and detached magistrate prior to drawing blood to collect evidence for a DWI arrest or prosecution—“unless exigent circumstances exist in a particular case.”

“Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.”

113
Q

Standing for a Person Adversely Affected by Confession Unlawfully Obtain by Police

A

NO STANDING

Applied this principle when one co-defendant or co-conspirator seeks to suppress evidence incriminating him that was obtained from a co-participant in crime without proper compliance with the procedural requirements of Miranda or otherwise in violation of that party’s Fifth or Sixth Amendment rights.

LA Supreme Court: “The failure of the 1974 Louisiana constitution to provide for such standing, while explicitly granting any person adversely affected by a search or seizure conducted in violation of the constitution standing to raise its illegality in the appropriate court, indicates that the framers did not consider that the additional benefit of extending the exclusionary rule to persons adversely affected by others’ involuntary confessions would justify further encroachment upon the public interest in having criminal cases decided on the basis of relevant evidence.”

114
Q

Factors - Reliable Identification

A

even if procedure was “unnecessarily” suggestive, it would still be admissible if it were “reliable.”

Given that the witness “looked directly at” the perpetrator during the crime, then gave a “detailed description” of the perpetrator, and finally, was reasonably certain in his identification (“absolutely yes”), it is likely that the identification was “reliable.”

115
Q

Inevitable Discovery Exception to Exclusionary Rule

A

Louisiana Bar Exam July 2023- Created By Maryclaire Farrington (19 decks)

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