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[ab] crim law > Constitutional Protection of Accused Persons > Flashcards

Constitutional Protection of Accused Persons Flashcards

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1
Q

for search and seizure questions, do not focus on

A

what the cop found

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2
Q

search and seizure rules only apply if it is done by

A

a government agent or someone under the cops

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3
Q

search and seizure - government action requirement

A

search and seizure must be made by a government agent or at the direction of the government

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4
Q

search

A

a government search of a location with a reasonable expectation of privacy

anywhere with an enclosure; NOT out in open

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5
Q

open fields doctrine

A

open areas with no expectation of privacy

not a search

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6
Q

for a search need 3 things:

A

government action
probable cause
warrant

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7
Q

probable cause

A

cop has to have this

a reasonable person would conclude it is more probable than not that a crime has taken place

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8
Q

[TIP] if the cops enter Jon’s house without a warrant and finds cocaine, it will be

A

inadmissible

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9
Q

generally searches must be pursuant to a

A

warrant

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10
Q

elements of a warrant

A

(1) issued by neutral and detached magistrate

(2) facts must be fresh and not out of date

(3) persons/places must be specific ! Who and where can they look

(4) cannot exceed the scope

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11
Q

[TIP] typically police must knock and announce but a search will still be valid if they

A

dont have have a warrant

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12
Q

police can rely on informants for

A

probable cause to find if an informant is reliable, look to the totality of the circumstances

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13
Q

Plain View Doctrine

A

police can seize what is in plain view during a lawful search

ex: police in your house with a warrant see marijuana cigarettes on the stairs = this is ok bc in plain view

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14
Q

arresting someone from an illegal search that was bad will NOT

A

automatically dismiss indictment

the bad search is not enough on its own
protective sweep:

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15
Q

are protective sweeps ok

A

yes if searching for additional criminals

this is for PEOPLE

cops can only do this if they have a reasonable belief there is other people in the house

ex: everyone knows John has 2 body guards in his house

allowed for safety with proof of others present

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16
Q

exceptions to warrant rule:

consent

A

one who has control/apparent authority over the property

ex: I let the cop in

one who owns or has apparent authority over premises can consent

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17
Q

exceptions to warrant rule:

co-occupant consent: (2 people equally share property)

A

a present co-occupant can refuse

one says no means the cop cannot search

if only one person home and that person consents then consent is valid

a non-present co-occupant cannot refuse

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18
Q

exceptions to warrant rule:

search incident to lawful arrest:

A

(1) arrest must be lawful
(2) can search of person/wingspan (without a warrant)
ex: briefcase, pockets

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19
Q

exceptions to warrant rule:

arrest of a car occupant:

A

police may search passenger compartment IF: (1) occupant is unsecured (not in shackles, etc. and still can get access to car) OR
(2) cops have reasonable belief of evidence of CRIME OF ARREST

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20
Q

exceptions to warrant rule:

inventory search

A

after arrest at the police station, police can search the person/car

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21
Q

exceptions to warrant rule:

exigent circumstances:

A

reasonable belief evidence may be lost or destroyed

exception to the warrant rule

tip - do not pick an exigent circumstance answer choice unless there are exigent circumstances discussed in the facts, even though it may legally be correct, it is the wrong answer

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22
Q

exceptions to warrant rule:

automobile exception:

Think about two hypos

A

two hypos to think of:
(1)
if I am driving a rolls Royse in a beautiful neighborhood at 4 AM, cop gets behind me and says what’s this guy doing is he up to no good

how long can the cop follow me for? As long as he wants

after an hour he says I don’t think he is up to any good, so he puts the lights on and pulls me over

I was following speed limit, tail light works, registration in order … I pull over, he approaches and I have coke all over my face and coke flying out of the car window.

Am I going to jail or going home?

Cop was NOT allowed to stop me in first place bc no evidence I was doing anything wrong

Cop has no reason to pull me over = illegal stop = anything in car is not admissible

if I am doing the smallest thing wrong, he can pull me over and anything he finds is admissible - but he cannot look in glove compartment, trunk, anything enclosed lol

no evidence of illegal activity

can only do normal traffic violation stuff

cop stops me for speeding, my eyes blood shot/reek of alcohol

he can have me get out to do a test

if he sees brown paper bag on passenger seat he can recover it because I reek and look like I’ve been having alcohol

pull over for traffic violation - cant look in car for other shit unless theres evidence of a crime occurring

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23
Q

exceptions to warrant rule:

illegal automobile stop - no traffic violation:

A

if there was no reason to pull the car over, nothing found is admissible

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24
Q

exceptions to warrant rule:

legal automobile stop - traffic violation:

A

police cannot search the car

unless some evidence of other crimes

tip - during a stop for a traffic violation, police cannot search the car, glove box, or trunk unless there is evidence of another crime

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25
Q

exceptions to warrant rule:

automobile stop - probable cause:

A

police may search entire car if probable cause the car is carrying contraband

ex: amber alert and the car pulled over matches description - cop can rip that car to shreds to find the kid

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26
Q

exceptions to warrant rule:

border rule

A

no warrant necessary at a border search

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27
Q

exceptions to warrant rule:

search outside US:

A

US officials may search you on foreign land

No warrant necessary

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28
Q

exceptions to warrant rule:

dog sniff:

A

not a search in a public place

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29
Q

exceptions to warrant rule:

stop and frisk:

A

stop = can stop to talk to me if there is reasonable suspicion criminal activity is afoot

frisk = can frisk me if there is further evidence that there is a reasonable belief person is armed and dangerous

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30
Q

exceptions to warrant rule:

automobile checkpoints:

A

checkpoints allowed with generic, uniform method for stop

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31
Q

[TIP] if a question asks what is the best argument for admitting the evidence,

A

look for one of the exceptions

32
Q

trigger for miranda

A

making statements to the cops

33
Q

Miranda elements: NEED BOTH to be owed miranda rights

A

(1) custody
-reasonable person would not feel free to leave
-don’t need to be handcuffed
-objectively

(2) interrogation
-police attempting to elicit criminal response with what they are saying

34
Q

[TIP] the police do not need to give Miranda warnings

A

immediately

35
Q

no Miranda required if suspect volunteers

A

volunteers info

36
Q

only need to get miranda warnings if youre

A

making to the cops was a product of a custodial interrogation

37
Q

what are the miranda warnings

A

right to remain silent

anything said can be used against you

right to an attorney

if you cannot afford one, one will be provided

38
Q

if you request a lawyer, all questioning must

A

stop

39
Q

waiver of Miranda rights

A

can waive if you do it knowingly and voluntary

and this is based on the totality of circumstances

40
Q

right against self-incrimination

A

never required to testify

may be required to perform physical acts

ex: walk with a limp so make them walk

put on the glove to see if it fits

cannot be forced to make statements

41
Q

lineups and pics of person are okay but

A

cannot be unnecessarily suggestive

look at the totality of circumstances

ex: the only tall guy- I’m 6’6 and everyone else in lineup is 5’5
only guy with a beard
the only guy with gray hair

weird hypo by itself: out of court ID that is too suggestive - and now you are in court and that ID is reliable - then the in court ID is valid and can be used against you

42
Q

right to counsel-
lineups

A

no right to counsel at a lineup prior to indictment

right to counsel after indictment (after D is charged = right to counsel)
foundation for rights:

43
Q

right to counsel-

foundation for rights

A

there is a fifth amendment right to counsel BEFORE charges or indictment
- 5 comes before 6

there is a sixth amendment right to counsel AFTER formal charges
-6 comes after 5

44
Q

right to counsel-

you have a right to effective counsel, to determine if effective ask

A

1) did lawyer deviate from the norms

(2) reasonable probability the outcome would have been different if counsel been effective

45
Q

right to counsel-

waiver of right to counsel:

A

must knowingly waive if you are gonna waive

46
Q

right to counsel-

D has right to counsel at all CRITICAL STAGES of prosecution

A

critical stages - right to counsel: (tip usually things after indictment)
post-indictment interrogation
preliminary hearings for probable cause to prosecute
arraignment
post-charge lineups
guilty pleas and sentencing
felony trials
misdemeanor trials with imposed imprisonment
overnight recesses during trial
appeals as a matter of right appeals of guilty pleas pleas of nolo contenders

no right to counsel: (generally pre-indictment) blood sampling handwriting or voice samples
pre-charge/investigative lineups
photo IDS
preliminary hearings for probable cause to detain
brief recess during D’s testimony
discretionary appeals
parole and probation revocation proceedings post-conviction proceedings

47
Q

[TIP] generally the critical stages are

A

post-indictment

48
Q

right to counsel-

shared counsel

A

co-defendants can share counsel unless conflict arises that would hurt ability for lawyer to represent both

49
Q

right to counsel-

undercover officer in jail cell: (ex cop is in their bragging to get suspect to talk)

A

this violates right to counsel - this is the answer

not miranda!

50
Q

guilty plea:

A

okay if entered voluntarily and intelligently and you understand the consequences of what you are doing

51
Q

severance:

A

if 2 D’s are tried together, one can sever for unfair prejudice and be tried on his own

52
Q

impartiality:

A

D has right to unbiased judge

53
Q

competency:

A

D must be competent to understand charges and work with the lawyer

D may be medicated to get them competent to stand trial

54
Q

Have a right to a jury trial if the sentence is longer than

A

6 months

55
Q

Jury should be a

A

cross-section of the community

56
Q

state trial by 6 members =

A

must be unanimous

57
Q

state trial by 12 members =

A

need not be unanimous

58
Q

federal trial by 12 members =

A

must be unanimous

59
Q

any exclusion of a juror based on race/gender violates

A

equal protection

60
Q

right to public trial:

A

D generally has right to a public trial

press may attend UNLESS overriding interest to close trial then judge can throw everybody out

does not apply to grand jury (no press) (no publicity)

61
Q

right of confrontation:

[Two scenarios: Co-Def’s Confessions + Right to Confront Out of Court Statements]

A

right to confront and cross examine all witnesses by D (aka because they are making u look bad as a D)

even if the statements are from out of court

scenario 1: co-defendant confessions:

a co-defendant’s confession can only be used against the other if available to testify

I confess against Coy. Coy has right to make sure I testify so he can cross examine me

Scenario 2: right to confront out of court statements:

Was the statement testimonial?

Testimonial = not made during an emergency and inadmissible; just in basic convo

testimonial statements are inadmissible

non-testimonial statements are admissible (aka made during 911 call, police investigation, during emergency)

62
Q

Procedural Rights –

prosecution’s burden:

A

must prove all elements of the crime BEYOND A REASONABLE DOUBT

63
Q

Procedural Rights –

defendant’s burden:

A

must prove a defense by PREPONDERANCE OF THE EVIDENCE

64
Q

Procedural Rights –

Presumptions

A

(1) NO mandatory presumptions in criminal cases

Because (2) it violates due process

65
Q

Procedural Rights -

[TIP] during jury instructions, elements of a crime must be

A

proven by the prosecution and elements of a defense must be proven by the D

66
Q

Procedural Rights -

grand jury - couple of rules

A

(1) accused has no right to be present

they have no right to even know GJ is looking into them

(2) exclusionary rule does NOT apply

can pretty much use anything

Note - Some evidence rules, including allegations of privilege, do apply to grand jury proceedings.

(3) witness has NO right to counsel INSIDE the room

67
Q

double jeopardy:

A

cannot be tried for the same crime twice

does not apply to anything BEFORE first trial

Ex: grand jury, preliminary hearings

68
Q

jeopardy attaches: (when trial began for trial 1 and now DJ attaches)

A

jury trial: jury is sworn in

bench trial: first witness is sworn in

69
Q

trial by a separate sovereign:

A

can be tried in DIFFERENT states

can be tried in state AND Federal Court

same state, different county - not ok

70
Q

double jep -

retrial permitted:

A

D’s successful appeal = retrial allowed

Mistrial for necessity = retrial allowed

71
Q

double jep-

Collateral estoppel:

A

No retrial allowed if the second trial requires an element defendant was previously acquitted of

Try me for robbery and I get off; now guy dies, can they try me for felony murder? No

Need element from crime 1 to convict me of crime 2

Ex larceny is an element of robbery

If acquitted of robbery though can try me for manslaughter bc no matching elements

72
Q

Punishment & Death Penality -

Cruel and Unusual Punishment:

A

Sentence must be proportionate to crime

Consistent with punishment for similar crimes

Looking at other cases of other criminals

73
Q

Punishment & Death Penality -

Rights during sentencing:

A

Right to counsel
Right to remain silent

74
Q

Punishment & Death Penality -

Death penalty:

A

Not cruel and unusual as long as procedural safeguards are in place to

Prevent arbitrary or discriminatory sentencing

75
Q

Punishment & Death Penality -

Death penalty exceptions:

A

Under 18 at time of crime
Mentally challenged

76
Q

Can communications between client and attorney consultant be disclosed?

A

any communications between the defendant/client and attorney consultant are privileged and cannot be disclosed without a valid waiver from the defendant.

[ab] crim law (5 decks)

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