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Bar > Barbri lectures Crim Pro > Flashcards

Barbri lectures Crim Pro Flashcards

1
Q

When does a seizure occur?

A

When a reasonable person would believe that they are not free to leave (totality of circumstances)

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2
Q

4 Automatic times when you have reasonable expectation of privacy: AUTOMATIC STANDING UNDER 4A!

A
  1. Person owned or had right to possess place searched (does not matter if she lives there)
  2. Place searched is person’s home
  3. Person is overnight guest of owner
    Sometimes: the person owns the property seized.
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3
Q

Do the cops always need to knock and announce?

A

No, no announcement is needed if the police reasonably suspect that knocking and announcing would be dangerous or ruin the investigation

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4
Q

4 point analysis that is very important for determining whether searches and seizures are reasonable:

A
  1. is there govt conduct
  2. is there standing?
  3. is there a valid warrant? (PC/Particularily)
  4. If warrant is not valid: Does Officer’s good faith defense save the evidence (exceptions here)
  5. if no valid warrant, do exceptions to warrant req apply? (need exception to be valid, voluntary consent)
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5
Q

when can someone other than the defendant give consent to enter without a warrant?

A

parent who has general access to a room occupied by a son or daughter, then that is valid consent.

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6
Q

a search warrant allows the police to ___ persons, but does NOT authorize the police to…

A

Can detain persons, but the police cannot search persons found on the premises who were not named in the warrant.

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7
Q

any invasion of privacy done by ___ ____, not by the ___, would not prevent introduction of the evidence.

A

Any invasion of privacy done by private persons, not the state, would not prevent introduction of evidence.

EX. President of a high school = not the state/police

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8
Q

Can the police arrest someone and search them 5 hours later?

A

No, search must be contemporaneous in time and place with arrest. Too long went by.

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9
Q

Does it matter that what was found was different than what gave rise for the officer to search?

A

NO! So long as the search itself is valid, any contraband or illegal items found will be admissible.

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10
Q

Police may search passenger compartment incident (NOT THE TRUNK) to arrest if: GANT RULE

A
  1. Arrestee is unsecured (not in back of squad car) and may gain access to vehicle; or
  2. Police reasonably believe evidence of offense for which person was arrested may be found
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11
Q

If officer stops a car and sees something in plain view, this is NOT a

A

search

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12
Q

If the officer manipulated the defendant, is this plain feel? Ok for Terry frisk?

A

NO not ok! Just plain feel, no manipulation.

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13
Q

Generally, no right to privacy in:

A
  1. Sound of your voice
  2. Style of your handwriting
  3. Paint on outside of car
  4. Account records held by bank
  5. Location of car on public street or driveway
    BUT…. GPS device on suspect’s car constitutes a search within the 4th amendment (Jones)
  6. Anything seen across open fields
  7. Anything seen from flying over public airspace (low aerial photographing)
  8. Odors from luggage or car
  9. Garbage set out on the curb for collection (NEEDS TO BE ON CURB)
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14
Q

The police can conduct any search incident to ___, so long as there is

A

The police can conduct a search incident to arrest so long as there is a valid constitutional arrest. (state law does not matter)

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15
Q

What are the requirements for the plain view exception to warrant req?

A

police can make a warrantless seizure when:
1. legit on the premises
2. discover evidence, contraband, or fruits of crime
3. see evidence in plain view, and
4. have pc to believe evidence/contraband is instrument or fruit of crime

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16
Q

By handing an officer your phone, are you giving them permission to search your texts/photos/etc?

A

No - need a warrant to view contents.

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17
Q

what is the automobile exception to warrant req?

A

the police may search a vehicle without a warrant if they have probable cause to do so, and they may seize any contraband that they find.

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18
Q

If the police do execute an arrest warrant at the home of a third party without obtaining a search warrant for the home, the arrest is …

A

still valid but evidence of any crime found in the home cannot be used against the owner of the home because it is the fruit of an unconstitutional search

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19
Q

when can someone with apparent equal right to use/occupy property consent?

A

so long as the occupant gave a valid consent and co-occupant did not object

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20
Q

If co-occupant is removed for an unrelated reason, can the cops rely on the consent of the person there?

A

yes

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21
Q

A D who is arrested but not yet charged does NOT have a ____ to counsel but DOES have a ___ to counsel

A

A d who is arrested but not yet charged does not have a 6th A right to counsel but DOES have a 5th A right to counsel under Miranda

There can be no violation of the 6thA right to counsel before formal proceedings have beun

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22
Q

do miranda warnings need to be said verbatim,

A

no so long as the substance of the warnings is conveyed

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23
Q

What are the two req’s for Miranda Rights being read? When is miranda req’d

A

Need a 1) custodial; 2) interrogation

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24
Q

Miranda applies only to..

A

custodial interrogations by the police or one known to be an agent of the police

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25
Q

Two step process for determining custody:

A

1) whether reasonable person would feel free to terminate interrogation and leave
2) whether environment presents same inherently coercive pressures as station house questioning

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26
Q

Test for interrogation Req

A

Any words or conduct by police that they should know would likely elicit an incriminating response (not just questions, need incriminating response)

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27
Q

Miranda warnings are NOT required for ____ statements

A

spontaneous (just blurting out a crime you committed)

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28
Q

If the facts tell you that something is “blurted out” what does this mean for Miranda?

A

Spontaneous statement at issue, no miranda warnings are required and can be used against you

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29
Q

How can a detainee waive their miranda rights? what test is used to determine this?

A

waiver must be knowing and voluntary (look at TOC)

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30
Q

The invocation of right to remain silent and right to counsel must be…

A

unambigious

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31
Q

If the detainee invokes their right to counsel, all questioning must stop until…

A

counsel has been provided unless the detainee:

1) waives counsel, or
2) is released back to normal life and 14 days have passed since release

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32
Q

If a detainee invokes their right to remain silent, could the police requestion them about a different crime?

A

Yes - but prob after a break and if fresh warnings are administered.

If right to counsel invoked, no questioning until attorney is present.

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33
Q

“Maybe I should get a lawyer now” – is this an invocation of the right to counsel under Miranda?

A

No, must be unambiguous. This is not clear. Need “I want my lawyer.”

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34
Q

If you are told your Miranda rights and sit there silent for 2 hours, do you invoke your right to silence under Miranda?

A

No - need to speak.

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35
Q

what are the full miranda warnings?

A

must inform detainee that:
1) right to remain silent
2) anything he says can be used against him in court
3) he has the right to counsel
4) if cannot afford attorney, one will be appointed if he desires.

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36
Q

if someone other than the police, such as a civilian working for the police, is interrogating detainee, are miranda warnings req’d?

A

Depends, they may. It depends on whether the suspect knows the person is employed by the police.

37
Q

are routine booking Qs interrogation for Miranda?

A

No bc this information about the suspects name/address is not incriminating

38
Q

is being unconstrained at a crime scene “in custody” to a reasonable person for Miranda?

A

Probably not. Miranda warnings would prob not be required.

39
Q

to determine whether the detainee was in “custody” for miranda, what standard is considered? What is NOT?

A

Not their subjective believes. We care about whether the reasonable person would believe they could not leave.

40
Q

If two persons are tried together and one has given a confession that implicates the other (conspiracy), the right of confrontation under 6th amendment generally prohibits the use of that statement because …

A

the other defendant cannot compel the confessing co-defendant to take the stand for cross-examination.

41
Q

A voluntary confession obtained in violation of Miranda, can be admissible for what purpose?

A

impeachment ONLY

note: INVOLUNTARY confession is not included, cannot be used to impeach.

42
Q

Miranda warnings are only required if the detainee is being questioned by someone …

A

known to be working for the police (Paul blaurt prob is not included, he works for the mall)

43
Q

What are the three INS that make evidence admissible (exceptions to fruit of poisonous tree doctrine) - despite original unlawful police action

A
  1. Independent source
  2. Intervening Act of free will
  3. Inevitable Discovery
44
Q

what are the 4 exceptions to the limitation on the exclusionary rule when the police have good faith reliance on law, or a defective search warrant?

A

1) Affidavit so lacking in PC that no reasonable officer would rely on it
2) affidavit so lacking in particularly no reasonable officer would rely on it
3) officer or prosecutor lied to or misled magistrate
4) magistrate is biased and wholly abandoned neutrality.

45
Q

If the Defendant invokes their right to counsel properly, but the police keeps questioning and D makes incriminating statements, will these statements be admissible at trial?

A

Could come in to impeach D’s testimony at trial if he testifies.

Cannot be used in prosecution’s case in chief tho.

46
Q

Voluntary confessions in violation of Miranda can be admissible for impeachment only against…

A

Defendant if he testifies. No one else.

47
Q

When a speedy trial is raised in a question, first check:

A

the timing - has defendant been arrested or charged?

48
Q

If defendant has NOT been arrested or charged, there is no right to

A

speedy trial

49
Q

The 6th amendment grants a D the right to

A

confront adverse witnesses

50
Q

The right to confront adverse witnesses is not

A

absolute

51
Q

When is face to face confrontation not required?

A

when preventing such confrontation serves an important public purpose (insulating a child witness from trauma from testifying in sex abuse case)

52
Q

If two ppl are tried together and one has given a confession that implicates the other, the right of confrontation typically prohibits the use of that statement. However, Co-defendant’s confession may be admitted if:

A

1) All portions referring to the other defendant can be eliminated
2) Confessing D takes stand and is subject to cross-examination; or
3) Confession used to rebut D’s claim that confession was obtained coercively

53
Q

Prior testimonial evidence/statement of unavailable witness is not admitted unless:

A

1) declarant is unavailable; and
2) the defendant had the opportunity to cross examine the declarant at the time the statement was made.

54
Q

what needs to be shown to prove ineffective assistance of counsel?

A

1) deficient performance by counsel
2) but for the deficiency, result of proceeding would have been different.

55
Q

Factors to consider to determine whether a defendant’s right to a speedy trial has been violated under 6th amendment?

A

L WRP
1) length of delay
2) Whether D asserted right
3) Reason for delay
4) prejudice to D

56
Q

a plea bargain will be enforced against…

A

prosecutor and defendant, but not judge (does not have to accept plea)

57
Q

A guilty plea is not _____ merely because it was entered in response to the prosecution’s threat to charge the defendant with a more serious crime if they do not plead guilty.

A

Involuntary

58
Q

Prison regulations impinge on due process rights only if

A

they impose 1) atypical and 2) significant hardship.

59
Q

An offense is considered “serious,” making a jury trial constitutional right, when how many months imprisonment is authorized?

A

more than 6 months

60
Q

what is the remedy for a violation of the constitutional right to a speedy trial?

A

dismissal WITH prejudice

61
Q

the 6th amendment right to counsel only applies after…

A

adversary judicial proceedings have begun (formal charges have been filed)

62
Q

If the prosecution comments on the defendant’s failure to testify at trial, what may happen

A

defendant’s conviction will not be upheld. Defendant is privileged under the 5th amendment to remain silent.

63
Q

there is no constitutional right to a jury of ___, but there must be at least ___

A

12 and 6

64
Q

May a Defendant’s refusal to cooperation with an investigation of a criminal conspiracy be considered in imposing his sentence?

A

Yes, the 5th amendment right to remain silent does not include a privilege to refuse to incriminate others.

65
Q

A defendant’s invocation of his right to remain silent cannot be used at trial OR

A

he cannot be questioned or cross examined about his decision to remain silent, even if he testifies.

66
Q

what is double jeopardy

A

person may not be retried for same offense once jeopardy has attached

67
Q

When does jeopardy attach in jury trials vs. bench trials?

A

Jury: Empaneling and swearing of jury
Bench: When first witness is sworn

68
Q

what are the exceptions permitting retrial for double jeopardy?

A
  1. First trial ends in hung jury (jury is split, no unanimonity)
  2. Manifest necessity to abort first tral (medical emergency happens during first trial, so mistrial will be declared. Start all over again)
  3. Defendant successfully appealed conviction (unless ground for reversal was insufficient evidence)
  4. Defendant breached plea bargain
  5. Defendant could have been tried for multiple charges in single trial but chose to have offenses tried separately
69
Q

Two crimes are not the same offense for double jeopardy purposes unless…

A

each crime requires proof of additional element that the other does not

70
Q

What is the rule for lesser included offenses and greater offenses for double jeopardy?

A

Attachment of jeopardy for greater offense bars retrial for lesser included offense

Attachment of jeopardy for lesser included offense bars retrial for greater offense

71
Q

An exception to the double jeopardy bar exists if unlawful conduct that is subsequently used to prove the greater offense has not: (2)

A

(1) has not occurred at the time of prosecution for the lesser offense or (2) has not been discovered despite due diligence.

72
Q

the prohibition of double jeopardy does not apply to trials by…

A

separate sovereigns

73
Q

Separate sovereigns can…

A

try a defendant for the same offense

74
Q

what are two examples of separate sovereigns?

A
  1. state and fed govt
  2. 2 states
75
Q

What is an example of same sovereigns?

A

State and its municipalities.

76
Q

the right to double jeopardy comes from what amendment to constitution

A

5th amendment, has been incorporated into the 14th amendment.

77
Q

Merely being required to give your name after a Terry stop does not…

A

violate the 5th amendment. A disclosure of your name generally poses no danger of incrimination.

78
Q

When is the only time the prosecution can comment on D’s failure to take the stand?

A

When in response to defense counsel’s assertion that
the defendant was not allowed to explain their side of the story.

79
Q

When can silence be used against the defendant in court?

A

If suspect remains silent before Miranda warningsW

80
Q

when a prosecutor impermissably comments on D’s silence, what test will apply?

A

Harmless error test

81
Q

Criminal D waives their 5th A privilege to self-incrimination when:

A

D takes the witness stand and discloses incriminating info

82
Q

the 5th amendment privilege of self-incrimination only protects what type of evidence

A

testimonial (communications, not physical evidence)

83
Q

what is the difference between the 5th amendment right to counsel and 6th amendment right to counsel

A

5th A: asking for an attorney before formal charges have been filed against you
6th A: offense specific, after formal charges have been began against you. (just cant be spoken to without attorney for your specific case, but can be spoken to about other cases with fresh warnings)

84
Q

When will a 6th amendment issue arise for Miranda?

A

After charges during a critical stage (after proceedings have begun)

ex . police line up, custodial interrogation

85
Q

A waiver of the right to counsel under the 6th amendment must be..

A

knowing

86
Q

Does individuals have a REP in a prison cell?

A

No, so wiretapping and other forms of electronic surveillance are not unreasonable searches.

87
Q

when you seee a search done by school officials at a public school, make sure that the search is:

A
  1. done with reasonable grounds (reasonable suspicion); and
    2) not excessively intrusive. (ex. strip search for an aspirin violation)
88
Q

why is a wiretapped convo in a prison cell a violation of the 6th A not the 5th A?

A

Not the 5th because you need a REP to have a 5th A violation, there is no REP in a prison cell.

6th A violation if you were not mirandized and it is a custodial interrogation, which is a critical stage of litigation.

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