Admissibility

Question 1

What is the Exclusionary rule?

Answer 1

Evidence (physical or testimonial) gathered unconstitutionally is inadmissible against the individual whose rights were violated

Question 2

What is the scope of the exclusionary rule?

Answer 2

Excluded from case in chief only

May be introduced to impeach on cross

Question 3

What is the result of a failure of the knock and announce rule?

Answer 3

Has no impact on admissibility of evidence that is subsequently discovered

Question 4

What is the effect of police misconduct on the exclusionary rule?

Answer 4

Evidence excluded if police conduct is:

1. Deliberate,
2. Reckless, OR
3. Grossly (criminally) negligent

Question 5

What is the effect of police mistakes on the exclusionary rule?

Answer 5

Exclusionary rule doesn’t apply to evidence obtained erroneously when executing search warrant, provided mistake was reasonable

Question 6

What are the types of evidence implicated by the “fruit of the poisonous tree” rule?

Answer 6

1. Direct evidence
2. Derivative evidence

Question 7

What is direct evidence for the fruit of the poisonous tree rule?

Answer 7

Evidence directly linked to the constitutional violation

Question 8

What is derivative evidence for the fruit of the poisonous tree rule?

Answer 8

Evidence obtained by exploiting previous unconstitutional conduct

(Inadmissible in prosecutor’s case in chief)

Question 9

What must be shown for tainted fruit to be admissible to a case-in-chief?

Answer 9

Prosecutor must show causal break between original illegality and the criminal evidence later discovered

Question 10

What constitutes a causal break that will cure fruit of the poisonous tree?

Answer 10

1. Independent Source (applies where there is a source for discovery and seizure that is distinct from the original illegality);
2. Inevitable Discovery (applies when evidence necessarily WOULD HAVE been discovered through lawful means, e.g., If cops discover the body of a dead man through unlawful means but would have discovered is eventually via an in-process lawful grid search); OR
3. Attenuation (derivative only) (applies when passage of time and intervening events “purged the taint” of the original illegality and restore the defendant’s free will, e.g., D is illegally arrested on Friday, released on Saturday, talks to his lawyer on Sunday, and freely returns to the station to confess on Monday)

Question 11

What are the requirements for a wiretapping warrant?

(Hint: Screen Telephone Calls Carefully)

Answer 11

(STCC - Screen Telephone Calls Carefully)

1. Suspected Persons (Warrant must name the suspected persons who will be listened in on)
2. Time (Must be a limited period; In NY: 30 days max)
3. Crime (Must have probable cause that a crime has been committed)
4. Conversations (Warrant must describe with PARTICULARITY the conversations that can be overheard)

Question 12

What satisfies the suspected persons requirement for wiretapping warrants?

Answer 12

Warrant must name the suspected persons whose conversations are to be overheard

Question 13

What satisfies the time requirement for wiretapping warrants?

(What is the time in NY?)

Answer 13

Warrant must be for strictly limited time-period

(30 days in NY)

Question 14

What satisfies the crime requirement for wiretapping warrants?

Answer 14

Must be probable cause that a specific crime has been committed

Question 15

What satisfies the conversations requirement for wiretapping warrants?

Answer 15

Must describe with particularity the conversations that can be overheard

Question 16

What is the unreliable ear doctrine?

Answer 16

If you speak to someone who has agreed to wiretapping, you have no 4A claim

(i.e., You assume the risk that the other party will not keep your conversation private!)

Question 17

When does an arrest occur?

Answer 17

Whenever police take someone into custody against their will for prosecution OR interrogation

Question 18

What is a de facto arrest?

Answer 18

A person is under de facto arrest when the police compel him to come to the station house for questioning OR fingerprinting

Question 19

What is the evidentiary standard for arrest?

Answer 19

Probable cause

Question 20

For what offenses does the Fourth Amendment permit custodial arrest?

Answer 20

All offenses, even those punishable by fine only

Question 21

When is an arrest warrant required? (2)

When is one not needed? (1)

Answer 21

Arrest warrant required:

1. Absent emergency, police need a warrant to arrest someone in his home.
2. If arrestee is in SOMEONE ELSE’S home, police need an arrest warrant AND a search warrant.

Warrant NOT needed to arrest someone in a public place!