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Louisiana Bar Exam > Con Crim Pro > Flashcards

Con Crim Pro Flashcards

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1
Q

4th Amendment

A

Prohibition against unreasonable search and seizures

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2
Q

5th Amendment

A

Privilege against self incrimination and double jeopardy

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3
Q

6th Amendment

A

Right to a speedy trial, public trial, trial by jury, confront witnesses, assistance of counsel

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4
Q

8th Amendment

A

Prohibition against cruel and unusual punishment, prohibition against excessive fines

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5
Q

Search

A

A governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy

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6
Q

Seizure

A

Exercise of control by the government over a person or thing

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7
Q

What constitutes a seizure?

A

An arrest. If not obvious, a seizure occurs only when under the totality of the circumstances a reasonable person would feel that they were not free to leave

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8
Q

Arrest

A

Police take a person into custody against their will for purposes of criminal prosecution or interrogation

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9
Q

Probable Cause

A

Must exist to make an arrest. Facts and circumstances would warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law

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10
Q

Is a warrant required to make an arrest?

A

No. Only need probable cause for a felony or a misdemeanor committed in their presence.

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11
Q

When does an arrest require a warrant?

A

A nonemergency arrest of an individual in their own home

All warrantless searches of homes are presumed unreasonable

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12
Q

Effect of an invalid arrest

A

An unlawful arrest by itself has no impact on a subsequent criminal prosecution

Evidence that is fruit of an unlawful arrest may not be used against the defendant at trial because of the exclusionary rule

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13
Q

Stop and Frisk

A

Police have the authority to briefly detain a person for investigative purposes even if they lack probable cause

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14
Q

What do they need to stop and frisk?

A

To stop = reasonable articulable suspicion of criminal activity or involvement in a crime

To frisk = Reasonable suspicion the person is armed and dangerous

Judged under the totality of the circumstances

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15
Q

Duration and Scope of Investigatory Stop

A

They are not subject to a specific time limit, but police must act in a diligent and reasonable manner in confirming or dispelling their suspicions

Identification may be required

If they develop probable cause during the detention, it becomes an arrest

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16
Q

Property Seizure on Reasonable Suspicion

A

Police may briefly seize items upon reasonable suspicion that they are or contain contraband evidence

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17
Q

Automobile Stops

A

Stopping a car is considered a seizure under the 4thA

Officers must have at least reasonable suspicion to believe that a law has been violated

Constitutes a seizure of the passengers as well

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18
Q

What must a roadblock have to be valid?

A
  1. Stop cars on the basis of some neutral, articulable standard

and

  1. Be designed to serve purposes clearly related to a particular problem pertaining to automobiles and their mobility
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19
Q

What can police do with occupants in a stopped vehicle?

A

Order them out. Can frisk detainees if they reasonably believe they are armed and dangerous

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20
Q

Pretextual Stop

A

If an officer has probable cause to believe that a traffic law has been violated, the officer may stop the suspect’s automobile even if the officer’s ulterior motive is to investigate a crime for which the officer lacks sufficient cause to make a stop

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21
Q

Station House Detention

A

Police must have full probable cause for arrest to bring a suspect to the station against the suspect’s will for questioning

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22
Q

Deadly Force Seizure

A

There is a 4thA seizure when a police officer uses deadly force to apprehend a suspect, use of deadly force must be reasonable under the circumstances

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23
Q

Evidentiary search and seizure

A

Police typically must have obtained a warrant to conduct a search

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24
Q

Analysis of a search

A

Did the D have a reasonable expectation of privacy?

Did the police have a valid warrant?

If not, did it fall under one of the warrant exceptions?

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25
Q

Things Held out to the Public

A

No REOP.

ex: sound of voice, handwriting, paint on the outside of a car, smell of one’s luggage or car, account records held by bank, magazines offered for sale

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26
Q

Cell site location information

A

One does have REOP

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27
Q

Squeezing luggage

A

Does have REOP against physically invasive inspections

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28
Q

Dog sniffs at traffic stops

A

As long as lawful stop and stop is not extended beyond the time necessary, a dog sniff is okay.

Officers may not extend an otherwise completed traffic stop to do a dog sniff without reasonable suspicion

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29
Q

Dog sniffs at entry to home

A

No

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30
Q

“Open fields” doctrine

A

Areas outside the curtilage are subject to police entry and search as these areas are considered held out to the public

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31
Q

Fly-Overs

A

Police may fly over a field or yard to observe with the naked eye things within

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32
Q

Technology enhanced searches of homes

A

Obtaining by sense enhancing technology any information regarding the interior of a home that could not otherwise have been obtained without physical intrusion constitutes a search

33
Q

Requirements of a Warrant

A
  1. Be issued by a neutral and detached magistrate
  2. Be based on probable cause from the facts submitted to the magistrate
  3. Particularly describe the area to be searched and the items to be seized
34
Q

3 requirements to invalidate a search warrant

A
  1. A false statement was included in the affidavit
  2. The affiant intentionally or recklessly included that false statement
  3. The false statement was material to the finding of probable cause
35
Q

Will a finding of a warrant to be invalid exclude the evidence found with said warrant?

A

No. Evidence obtained by police in reasonable reliance on a facially valid warrant may be used in the prosecution

36
Q

Is a warrant for the search of a third party’s premises permissible?

A

Yes, as long as there is probable cause to believe evidence of someone’s guilt will be found

37
Q

Who must execute a warrant?

A

The police

38
Q

Must officers knock and announce?

A

Yes, unless it would be dangerous or futile or inhibit the investigation

39
Q

Scope of Search

A

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

40
Q

Can police seize property that was not specified in the warrant?

A

Yes. Any contraband or fruits or instrumentalities of the crime they discover

41
Q

Can police search persons found on the premises who are not named in the warrant?

A

No. If they have probable cause they may search incident to arrest

42
Q

Detention of occupants

A

Police can detain occupants on the premises while the search is being conducted. Limited to persons in the immediate vicinity, cannot follow stop or detain and search persons who left the premises right before

43
Q

6 Exceptions to the Warrant Requirement

A
  1. Search incident to lawful arrest
  2. “Automobile” Exception
  3. Plain View
  4. Consent
  5. Stop and Frisk
  6. Hot Pursuit, Exigent Circumstances, Other emergencies
44
Q

Plain View Requirements

A
  1. Are legitimately on the premises
  2. Discover evidence, fruits or instrumentalities of a crime or contraband
  3. See such evidence in plain view
  4. Have probable cause to believe the evidence is part of a crime
45
Q

Authority to Consent

A

Any person with an apparent equal right to use or occupy the property may consent to a search

Scope of the search is limited by the scope of the consent

46
Q

14th Amendment

A

For confessions to be admissible, they must be voluntary which is examined by the totality of the circumstances

47
Q

6thA right to counsel

A

Applies to all critical stages of criminal prosecution, limited to cases where adversary judicial proceedings have begun (aka formal charges have been filed)

48
Q

Failure to provide counsel at trial results in

A

Automatic reversal of the conviction

At non-trial proceedings the harmless error rule applies

49
Q

Miranda warning and valid waiver are prerequisites to the

A

admissibility of any statement made by the accused during a custodial interrogation

50
Q

Miranda Warnings

A
  1. The right to remain silent
  2. Anything he says can be used against him
  3. Right to the presence of an attorney
  4. If cannot afford an attorney, one will be appointed for you
51
Q

Does the warning have to be given verbatim?

A

No

52
Q

When must Miranda be given?

A

Prior to interrogation

53
Q

What are detainees options after being mirandized?

A

Do nothing, waive his miranda rights, remain silent, or assert the right to an attorney

54
Q

What constitutes a valid waiver?

A

Must be knowing and voluntary

55
Q

Right to remain silent

A

Must be explicit and unambiguous, all questions related to that particular crime must stop

56
Q

Evidence obtained in violation of Miranda is inadmissible at trial except

A

For impeachment of defendant’s testimony

57
Q

Exclusionary Rule

A

Prohibits the introduction at trial any evidence obtained in violation of defendant’s 4th, 5th, or 6thA rights

58
Q

Fruits of the Poisonous Tree

A

Not only must illegally obtained evidence be excluded, but all evidence obtained or derived from exploitation of that evidence

59
Q

Limitation

A

Fruits derived from statements obtained in violation of Miranda may be admissible despite the exclusionary rule

60
Q

Independent Source

A

Evidence is admissible if prosecution can show it was obtained from a source independent of the original illegality

61
Q

Inevitable Discovery

A

If the prosecution can show the police would have discovered the evidence whether or not they had acted unconstitutionally, it will be admissible

62
Q

Good faith exception

A

The exclusionary rule does not apply when the police arrest or search someone erroneously but good faith

63
Q

Harmless Error Test

A

Convictions are not necessarily overturned because improperly obtained evidence was admitted at trial, on appeal the government bears the burden of showing beyond a reasonable doubt that the admission was harmless

64
Q

Right to Hearing on Motion to Suppress

A

D is entitled to have the admissibility of evidence or a confession decided as a matter of law by a judge outside of the hearing of the jury

D has a right to testify at said hearing without their testimony being admitted against them at trial on the issue of guilt

65
Q

Prosecutor’s duty to disclose exculpatory evidence

A

Govt has a duty to disclose material, exculpatory evidence to the defendant, failure to disclose can be grounds for reversing a conviction

66
Q

What must the defendant prove to have their conviction reversed due to withholding of exculpatory evidence?

A
  1. the evidence at issue is favorable to the defendant because it impeached or is exculpatory
  2. prejudice has resulted (aka there is a reasonable probability that the outcome of the case would have been different if the evidence had been presented at trial)
67
Q

A defendant is incompetent

A
  1. They lack understanding of the charges and proceedings against them
  2. Lack present ability to consult with their lawyer
68
Q

The 6th amendment grants defendants the right to confront adverse witnesses to ensure that

A
  1. The fact finder and defendant can observe the demeanor of the testifying witness
  2. The defendant has meaningful opportunity to cross examine any witness testifying against them
69
Q

When Jeopardy attaches

A

In a jury trial = at the empaneling and swearing of the jury

Bench trial = when the first witness is sworn

70
Q

Separate Sovereigns

A

The constitutional prohibition against double jeopardy, does not apply to separate sovereigns, therefore ,a person may be tried for the same conduct by a state and the federal government

71
Q

Time Limits: Capital crime, life imprisonment

A

No time limit

72
Q

Felony necessarily punishable by imprisonment at hard labor

A

6 years from when the offense was committed

73
Q

Felony not necessarily punishable by imprisonment at hard labor

A

4 years

74
Q

Misdemeanor punishable by fine or imprisonment

A

2 years

75
Q

Misdemeanor punishable by fine

A

6 months

76
Q

When Judges must recuse themself

A
  1. Biased, prejudiced, or personally interested
  2. Closely related to the accused, the victim, defense counsel, or the district attorney
  3. Were involved in the case as an attorney
  4. Is a material witness
  5. Has performed a judicial act in the case in another court
  6. Would, for any other reason, be unable to conduct a fair and impartial trial
77
Q

When does a motion for a new trial have to be filed?

A

Before sentencing, sentencing cannot be imposed until at least 3 days have passed after the conviction

78
Q

When must the court grant a motion for a new trial?

A
  1. The verdict is contrary to law and evidence
  2. The court’s ruling on a written motion or objection during the proceeding shows prejudicial error
  3. Newly discovered evidence has become available (could not have been discovered before with due diligence, would have probably changed the outcome of the case)
  4. Justice so requires
79
Q

*Study important evidence stuff

A

Louisiana Bar Exam (4 decks)

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