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Crim Pro > chapter 1 > Flashcards

chapter 1 Flashcards

1
Q

Define Seizure

A

restrain freedom to move by physical force OR show of authority

Test: “would a reasonable person feel free to walk away/disregard?”

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2
Q

define “Stop and Frisk/Terry Stop”
can you search? if so, for what?

A

*reasonable suspicion based on articulable facts that the D is/about to engage in criminal behavior

Can search for weapons but X to find evidence

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3
Q

Traffic Stop
can you search?

A

*reasonable suspicion
Can pat down if reasonable suspicion for weapons

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4
Q

Arrest can occur if officer has what?

A

*probable cause to believe that D committed a crime

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5
Q

Warrant

can you enter D’s home w/ a warrant?

A

issued by neutral & detached magistrate signs the warrant
based on probable cause
include name & offense
can enter D’s home to arrest

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6
Q

officers ability to arrest
- felony
- misdemeanor
either committed in PO’s presence or not

A

can arrest for all crimes committed in PO’s presence

if NOT, then only for felonies that PO has probable cause for

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7
Q

Define search incident to arrest
- scope for on the street
- scope for D’s home
- scope for car

A

can search the D’s immediate surroundings

  • wingspan
  • immediate arrest area
  • passenger compartment
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8
Q

7 exceptions to the warrant requirement

A

“ESCAPES”

  • Exigent circumstances: during hot pursuit
  • Search incident to Arrest: “surrounding” areas
  • Consent: deception ok, 3rd party consent ok
  • Automobiles: search incident to arrest, probable cause, inventory
  • Plane view: if PO legally present
  • Evidence obtained from administrative searches (airplane boarding, borders, public schools, etc)
  • Stop and frisk (limited “frisk purpose” for PO safety)
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9
Q

what type of evidence the the 5th amendment apply to?

A

testimonial (X physical) evidence

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10
Q

2 ways to invoking the 5th (miranda) & specifically, how should it be done?

A

affirmatively
either “I want a lawyer” or “ I dont want to talk”

I dont want to talk: stop rn, but can come back and try again after a substantial amount of time

I want a lawyer: stop rn, can’t talk until D initiates or lawyer present

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11
Q

what’s one exception where a custodial interrogation can occur without Miranda?

A

public safety exception

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12
Q

During interrogation, can confession be made by deceit?

A

yes

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13
Q

Effect of statement obtained:
- involuntary
- in violation of miranda

A

involuntary: never admissible
~ miranda: presumptively inadmissible, but might be introduced to impeaceh

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14
Q

what is the 6th amendment right?
how is it invoked / waived?

A

right to assistance of counsel
- in all *critical stages of prosecution
- all felonies, only misdemeanors if jail > 1yr
- after indictment
automatically attaches upon indictment unless intelligently & knowingly waives

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15
Q

two types of D identification & when is counsel allowed to be present during ID?

A
  • photo array (counsel X allowed)
  • line up (counsel only allowed after indictment)

line up X admissible if impermissibly suggestive

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16
Q

Define: Exclusionary Rule

A

evidence obtained in violation of D’s 4th amendment rights is inadmissible

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17
Q

Fruit of Poisonous Tree Doctrine

A

exclusionary rule applies to any subsequent evidence resulted from the initial violation

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18
Q

5 1/2 exceptions to the exclusionary rule

(Even though obtained unlawfully, evidence still admissible)

A

“KIA-ING”
- knock & announce
- inevitable discovery
- attenuation in the causal chain (intervening events & passage of time)
- independent source
- negligence (isolated negligence)
- good faith

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19
Q

Death penalty can only be imposed on:

A

mentally capable adults

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20
Q

Define: Search

A

government’s conduct violates reasonable expectation of privacy

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21
Q

5 places where you would have a reasonable expectation of privacy

A
  • home
  • hotel room
  • backyard
  • offices
  • luggage
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22
Q

requirement for Search Warrant

A

issued by a neutral magistrate
probable cause that evidence is fruit, instrumentalities, or evidence of crime
describe property & place

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23
Q

statements made in what situation require safeguards in order to be admissible?

A

custodial interrogation

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24
Q

“Custodial” interrogation means

A

arrested or is not free to leave
(i.e. back of cruiser, police HQ)

25
Q

2 ways to invoke Miranda rights

A
  • “I dont want to talk”: m
26
Q

what’s the consequence for statements obtained in violation of miranda?

A

X use in state’s case-in-cheif, but can be used to impeach

27
Q

What’s the burden of proof for the prosecution to ID the D in court?

A

clear & convincing evidence that ID would happen regardless of suggestive line up

28
Q

Good Faith exception (exclusionary rule) applies to 2 situations:

A
  • an existing law that was later declared as unconstitutional
  • defective warrant that seemed valid

as long as officer had GF reliance, evidence is admissible

29
Q

3 situations where the officer should X rely on warrant under GF exception to exclusionary rule:

A
  • obtained by fraud
  • obtained through “bare-bones” affidavit
  • magistrate wholly abandoned judicial role
30
Q

Isolated Negligence under the exclusionary rule exception

A

An isolated negligence of a law enforcement personnel doesn’t trigger the exclusionary rule

must be sufficiently deliberate so that the exclusion can meaningfully deter it

31
Q

If it’s a Q about whether the conviction should be overturned, what’s the rule to use?

A

Harmless Error Rule

would admitting the evidence make a difference in the outcome?

32
Q

Presentation Clause (5th)

A

all federal felony charges must be initiated by indictment by a grand jury
probable cause needed

33
Q

Information

A

some state’s alternative to a grand jury indictment. must have a hearing before judge to determine probable cause

34
Q

Grand Jury
- what type of evidence can they consider
- does D have right to testify?
- do W have a right to counsel?
- vote to reach conclusion?

A

all, including illegally obtained & hearsay
- No
- No, although can go outside and consult
- majority, X unanimous

35
Q

Test for Competency to stand trial

A

whether D comprehends the nature of the proceedings against him & can assist his lawyer in defending the case

competent to stand trial = competent to plead guilty

36
Q

For a D’s guilty plea to be valid, how should the D waive his rights afforded to him?

A

knowingly and intelligently

37
Q

Jury # for federal & state

A

12 for fed, 6 or more for state

38
Q

Speedy Trial Clause protects D from

A

delay between arrest/indictment & trial

39
Q

4 factors courts look at when determine speedy trial claim

A
  • length of delay
  • reason for delay
  • whether D asserted his right to speedy trial
  • risk of prejudice to D
40
Q

Define Confrontation Clause
- 2 doctrines

A

D’s right to confront the witness against him
- crawford
- bruton

41
Q

Crawford Doctrine

A

If statement is *testimonial, bars admission if:
- declarant is unavailable; and
- D X have opp to cross examine W

42
Q

Bruton Doctrine

A

D’s own statement is always admissible against him

43
Q

4 duties of a prosecutor
- Brady
- X knowingly present false testimony
- X contact D outside of defense counsel’s presence
- X comment on D’s failure to testify after mirandized

A

Brady: turn over all exculpatory evidence
- includes: 1) evidence to prove D not guilty; 2) evidence to impeach prosecution’s W; 3) material evidence that could change the outcome

44
Q

what must the judge do if there’s an actual conflict of interest due to joint representation of Ds?

A

must warn them of risk, and give opportunity to get serape counsel
- if D waives, must affirmatively do so.

45
Q

What’s the test used to prove effected assistance of counsel?

A

Strickland test

46
Q

Strickland test

A

2 prong test

  1. *Performance: did counsel’s performance fall below the wide range of reasonable conduct that lawyers might engage in?
  2. *prejudice: there is a reasonable probability that, had the counsel performed effectively, the result would have been different. meaning:
    - trial: that D would X be convicted
    - plea: that D would X have plead guilty
47
Q

if D has his choice of counsel denied, what is he entitled to? (X indigent)

A

conviction is reversed

48
Q

capital punishment can only occur if victim

A

dies

49
Q

Death penalty X be imposed if:

A

D is a minor when convicted
D is insane @ time of execution
D suffers from cognitive impairment

basically, must be a competent adult

50
Q

what’s 1 pre-requisite required of the D in order to argue cruel and unusual punishment?

A

you have been *convicted of a Crime

51
Q

Double jeopardy clause applies to protection against:

A

same offense after acquittal
same offense after conviction
multiple prosecutions of the same offense

52
Q

what test to use for “same offense” under double jeopardy?

A

Blackburger test

53
Q

Blackburger test

A

whether each statute requires element that the other does not

not same offense: @+% / @+$
same offense: @ / @+&

54
Q

Double jeopardy X protect against same offense in the following situations

A
  • if victim is different
  • being charged by a diff jurisdiction
  • remember: can be charged w/ same, just not convicted of it
55
Q

2 kinds of mistrial

A

manifest necessity: D can be retried
X manifest necessity: D X be retried

56
Q

Aprendi Doctrine

A

Judge can’t enhance jail sentence beyond what the statute states is the max.

57
Q

Automobile Exception
requires:
allows to search:

A

1) probable cause that evidence of criminal activity will be found inside the car
2) can search the entire car, anywhere evidence might be located

cannot search passengers in the car unless probable cause they possess evidence of crime

58
Q

double jeopardy attaches when

A

jury sworn in (jury trial); OR
the first witness is sworn in (bench trial).

Crim Pro (1 decks)

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