Con Crim Pro Flashcards
Crim Pro: Punishment 8th and Death Penalty 1. Statutory Limits? 2. Evidentiary Requirements? 3. Categorical exclusions? 4. MD?
- Violates 8th if there is an automatic category for the imposition of the death penalty 2. In deciding whether to impose the death penalty, jurors must consider all potentially mitigating evidence 3. Excluded from death penalty: A) mentally retarded B) PRESENTLY insane C) under 18 at the time of the offense 4. MD - D has an automatic appeal to the COA for both the sentence and the determination of guilt
Crim Pro: 5th Privilege Against Compelled Self-Incrimination Three ways to eliminate this privilege
- Grant of Immunity - Prosecutors can grant “use and derivative use” immunity, which bars the government from using your testimony or anything derived from it to convict you —–However, an individual can be convicted based on evidence obtained prior to the grant of immunity 2. Taking the Stand - D waives the ability to take the fifth as to anything within the scope of cross-examination if he takes the stand 3. Statute of Limitations - No privilege if SoL has run on the underlying crime since a witness’ testimony could not expose him to criminal prosecution
Search/Seizure Global Issue #2 (Did the search or seizure conducted pursuant to a search warrant satisfy the 4th Amendment requirements?): What are the 4 exceptions to the “good fiath” doctrine?
- The affidavit supporting the warrant application is so egregiously lacking in PC that no reasonable officer would have relied on it; 2. The warrant is so facially deficient in particularity that officers could not reasonably presume it to be valid; 3. The affidavit relied on by the magistrate contains KNOWING OR RECKLESS FALSEHOODS that are necessary to the PC finding; or 4. The magistrate who issued the warrant is biased in favor of the prosecution.
Search/Seizure Global Issue #2 (Did the search or seizure conducted pursuant to a search warrant satisfy the 4th Amendment requirements?): Does an officer’s “good faith” reliance on a defective warrant overcome its constitutional deficits?
Yes, unless one of 4 exceptions apply.
Crim Pro: Confessions Miranda, Exclusion Limitations
- Statements violating Miranda may always be used to impeach Defendant’s testimony on cross-examination; MAY NOT impeach the testimony of third parties 2. Failure to give Miranda does not require suppression of the physical fruits of incriminating statements, SO LONG AS STATEMENTS ARE VOLUNTARY 3. If a statement is made prior to Miranda and repeated after Miranda it is admissible so long as the first statement was not obtained through inherently coercive police tactics or methods offensive to due process 4. Harmless Error Rule - Improperly admitted evidence under Miranda remains if the gov’t can prove BRD that its inclusion was harmless because the defendant would have been convicted without the tainted evidence
Crim Pro: Pretrial Identifications Remedial Considerations
- Remedy is to exclude witness’s in-court identification HOWEVER, an in-court identification will still be allowed if the prosecution can prove that it is based on observations OTHER THAN the unconstitutional show-up, line-up or photo array —–Factors to consider: 1) witness’ opportunity to view the D at the crime scene 2) the specificity of the description given to the police, and 3) the certainty of the witness’ identification
Search/Seizure Global Issue #2 (Did the search or seizure conducted pursuant to a search warrant satisfy the 4th Amendment requirements?): In Maryland, how many days do officers have to execute a search warrant?
15 days. If the search warrant is not executed within 15 days of its issuance, a new search warrant must be obtained.
Crim Pro: Pretrial Identifications 3 types
- Line-ups 2. Show-ups 3. Photo Arrays
Crim Pro: Exception of need for Consent to Search Automobiles
Vehicles have ready mobility and people have less expectation of privacy Police need probable cause to believe contraband or evidence of a crime will be found in the vehicle - Can search entire vehicle and open any package, container etc that may reasonably contain the items for which there was probable cause to search
Crim Pro: Terry Frisks
Pat down of the body and outer clothing for weapons that is justified by officer’s belief that a suspect is armed and dangerous. - if officer finds something reasonably believed to be a weapon it can be seized - if officer finds something recognized as contraband without manipulating it, it can also be seized
Search/Seizure Global Issue #1 (Is the search or seizure governed by the 4th A?): What is the standard for a reasonable expectation of privacy?
- An actual or subjective expectation of privacy in the area searched or seized, AND 2. The privacy expectation must be one that society recognizes as reasonable (EX: A police search is presumptively UNREASONABLE when it uses a device that is not in public use to explore details of the home that officers could not have known without physical intrusion)
Search/Seizure Global Issue #4 What is the Fruit of the Poisonous Tree Doctrine?
Evidence (both physical and testimonial) derived from prior unconstitutional conduct -Inadmissible in the prosecutor’s case-in-chief
Crim Pro: Wiretapping and Eavesdropping 4 Major requirements
Mnemonic Screen Telephone Calls Carefully Suspected persons - Warrant names the suspected persons whose conversations are to be overheard Time - Wiretap must be for a strictly limited time period Crime - There must be PC that a specific crime has been committed Conversations - Warrant must describe with particularity the conservations that can be overheard
Crim Pro: Guilty Pleas and Plea Bargaining What must D be informed of?
Judge must inform the D in open court on the record: 1. The nature of the charges, including required elements of the charged offense, and 2. The consequences of the plea, e.g. waiver of the right to plead not guilty, waiver of the right to a trial
Crim Pro: Trial Rights Confronting Adverse Witnesses
Right to face-to-face confrontation does not contravene important public policy concerns
Crim Pro: Punishment 8th Am. standard?
Disallows criminal penalties that are grossly disproportionate to the seriousness of the offense committed
Crim Pro: 5th Privilege Against Compelled Self-Incrimination When can you take the Fifth?
In any proceeding in which an individual testifies under oath
Crim Pro: Confessions Invoking Miranda, Right to Counsel
- Request must be sufficiently clear that a reasonable office would understand the request for counsel 2. All interrogation must cease unless initiated by the suspect 3. Right is not offense-specific, police may not question suspect regarding any crimes without a lawyer present 4. Request expires 14 days after a suspect is released from custody —May obtain a waiver, if waiver is knowing, voluntary, and intelligent
Search/Seizure Global Issue #1 (Is the search or seizure governed by the 4th A?): Which individuals DO NOT or MAY have standing to challenge the conduct of a government agent?
- Those who do not own or reside, but who are OVERNIGHT GUESTS in the premises searched MAY have standing, as long as the area searched is that which an overnight guest would be expected to access (common areas and the bathroom, but not the host’s bedroom closet) 2. Those who own the property seized MAY have standing, as long as they have a reasonable expectation or privacy in the area from which the property was seized (EX: BF does NOT have standing to challenge drugs found in GF’s purse) 3. Passengers in cars DO NOT have standing to challenge a search of the car, as “mere passengers” do not have a reasonable expectation of privacy in the vehicle
Crim Pro: Double Jeopardy When does it attach?
- Jury trial – when the jury is sworn 2. Bench trial – when the first witness is sworn 3. Guilty plea – when the court accepts the defendant’s plea unconditionally
Search/Seizure Global Issue #4 What is the Exclusionary Rule and how does it work?
Evidence, whether physical or testimonial, that is obtained in a violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated
Search/Seizure Global Issue #2 (Did the search or seizure conducted pursuant to a search warrant satisfy the 4th Amendment requirements?): What are the exceptions to the “knock and announce” rule?
- If it would be FUTILE to K&A; 2. If it would be DANGEROUS to K&A; or 3. If it would INHIBIT the investigation.
Crim Pro: Consent to search shared properties
Any adult resident can consent to search of common areas. If co-tenants disagree objecting party prevails as to common areas
Crim Pro: Terry Frisk- Protective Sweep
When making an in-home arrest police may sweep the residence for criminal confederates of the arrestee whose presence may threaten officer safety. - Officers have authority w/out prob cause to look in areas adjoining the place of arrest from which an attack could be immediately launched - officers must have additional facts sufficient to allow a reasonably prudent officer to conclude that an individual who may threaten offcer safety is present to justify a sweep of more remote areas
Crim Pro: Confessions Invoking Miranda, Right to Remain Silent
- Suspect must unambiguously invoke their right to remain silent 2. Then police must “scrupulously honor” the invocation —-Police may not badger a suspect 3. Police may re-initiate interrogation after waiting a SIGNIFICANT period of time & informing suspect of his Miranda rights
Crim Pro: Double Jeopardy 4 Exceptions permitting retrial
- Hung jury 2. Mistrial for manifest necessity 3. A successful appeal, unless the reversal on appeal was based on insufficiency of the evidence presented by the prosecution at trial, or 4. A breach of the plea agreement by D
Search/Seizure Global Issue #3 (Is the warrantless search through which criminal evidence was gathered valid?): What are the eight (8) exceptions to the warrant requirement?
“ESCAPIST:” 1. Exigent Circumstances 2. Search incidence to Arrest 3. Consent 4. Automobile 5. Plain View 6. Inventory 7. Special Needs 8. Terry “Stop and Frisk”
Crim Pro: Law of Arrest What is the Common Enterprise Theory?
During a traffic stop, if a cop finds evidence of a crime that suggests a common unlawful enterprise between the driver and his passengers, the officer may arrest ANY or ALL of them, based on a reasonable inference of shared dominion and control over the contraband
Search/Seizure Global Issue #2 (Did the search or seizure conducted pursuant to a search warrant satisfy the 4th Amendment requirements?): What is a magistrate NOT “neutral and detached?”
A judicial officer ceases to be sufficiently “neutral and detached” for 4th Amendment purposes when her conduct demonstrates BIAS in favor of the prosecution.
Crim Pro: Trial Rights 6 Jury Characteristics
- Must be fair and impartial 2. Right to jury for any crime with a maximum sentence over 6 months 3. Must have 6 jurors — MARYLAND must have 12 4. If 6 jurors, verdicts must be unanimous, if 12 jurors, verdicts need not be unanimous —-MARYLAND, verdicts must be unanimous 5. Jury pool must be a cross section of the community 6. Peremptory challenges permitted so long as they are not based upon a juror’s race or gender
Search/Seizure Global Issue #1 (Is the search or seizure governed by the 4th A?): What items are considered UNPROTECTED by the 4th Amendment?
Patty Achieved A Glorious Victory Over Her Opponents: 1. Paint scrapings on the outside of car 2. Account records held by bank 3. Airspace (anything that can be seen below public airspace) 4. Garbage left at curb for collection 5. Voice 6. Odors (most importantly those that emanate from your CAR or LUGGAGE) 7. Handwriting 8. Open fields (anytthing seen IN or ACROSS it)
Crim Pro: Searches at Border
No 4th Amend rights at border w/ respect to routine searches of persons and effects
Crim Pro: Inventory Searches
Most commonly occur in 2 contexts: 1. Arrestees when booked into jail 2. Vehicles when impounded Are constitutional provided: - regs governing them are reasonable in scope; - search itself complies w/ those regs; and - search is conducted in good faith (ie motivated solely by need to safeguard possessions and/or officer’s safety)
Crim Pro: Searches of Parolees
Warrantless, suspicionless searches of a parolee and his home are permissible as a condition of parole
Search/Seizure Global Issue #1 (Is the search or seizure governed by the 4th A?): When does an individual subjected to a search or seizure have standing to challenge the conduct of a government agent?
To have authority or “standing” to challenge the lawfulness of a S/S by a gov’t agent, an individual’s PERSONAL privacy rights must be invaded, not those of a third party.
