Constitutional Protection of Accused Persons

Question 1

for search and seizure questions, do not focus on

Answer 1

what the cop found

Question 2

search and seizure rules only apply if it is done by

Answer 2

a government agent or someone under the cops

Question 3

search and seizure - government action requirement

Answer 3

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

Question 4

search

Answer 4

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

anywhere with an enclosure; NOT out in open

Question 5

open fields doctrine

Answer 5

open areas with no expectation of privacy

not a search

Question 6

for a search need 3 things:

Answer 6

government action
probable cause
warrant

Question 7

probable cause

Answer 7

cop has to have this

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

Question 8

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

Answer 8

inadmissible

Question 9

generally searches must be pursuant to a

Answer 9

warrant

Question 10

elements of a warrant

Answer 10

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(2) facts must be fresh and not out of date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

Question 11

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

Answer 11

dont have have a warrant

Question 12

police can rely on informants for

Answer 12

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

Question 13

Plain View Doctrine

Answer 13

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

Question 14

arresting someone from an illegal search that was bad will NOT

Answer 14

automatically dismiss indictment

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

Question 15

are protective sweeps ok

Answer 15

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

Question 16

exceptions to warrant rule:

consent

Answer 16

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

Question 17

exceptions to warrant rule:

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

Answer 17

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

Question 18

exceptions to warrant rule:

search incident to lawful arrest:

Answer 18

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

Question 19

exceptions to warrant rule:

arrest of a car occupant:

Answer 19

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

Question 20

exceptions to warrant rule:

inventory search

Answer 20

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

Question 21

exceptions to warrant rule:

exigent circumstances:

Answer 21

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

Question 22

exceptions to warrant rule:

automobile exception:

Think about two hypos

Answer 22

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

Question 23

exceptions to warrant rule:

illegal automobile stop - no traffic violation:

Answer 23

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

Question 24

exceptions to warrant rule:

legal automobile stop - traffic violation:

Answer 24

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

Question 25

exceptions to warrant rule: automobile stop - probable cause:

Answer 25

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

Question 26

exceptions to warrant rule: border rule

Answer 26

no warrant necessary at a border search

Question 27

exceptions to warrant rule: search outside US:

Answer 27

US officials may search you on foreign land No warrant necessary

Question 28

exceptions to warrant rule: dog sniff:

Answer 28

not a search in a public place

Question 29

exceptions to warrant rule: stop and frisk:

Answer 29

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

Question 30

exceptions to warrant rule: automobile checkpoints:

Answer 30

checkpoints allowed with generic, uniform method for stop

Question 31

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

Answer 31

look for one of the exceptions

Question 32

trigger for miranda

Answer 32

making statements to the cops

Question 33

Miranda elements: NEED BOTH to be owed miranda rights

Answer 33

(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

Question 34

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

Answer 34

immediately

Question 35

no Miranda required if suspect volunteers

Answer 35

volunteers info

Question 36

only need to get miranda warnings if youre

Answer 36

making to the cops was a product of a custodial interrogation

Question 37

what are the miranda warnings

Answer 37

right to remain silent anything said can be used against you right to an attorney if you cannot afford one, one will be provided

Question 38

if you request a lawyer, all questioning must

Answer 38

stop

Question 39

waiver of Miranda rights

Answer 39

can waive if you do it knowingly and voluntary and this is based on the totality of circumstances

Question 40

right against self-incrimination

Answer 40

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

Question 41

lineups and pics of person are okay but

Answer 41

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

Question 42

right to counsel- lineups

Answer 42

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:

Question 43

right to counsel- foundation for rights

Answer 43

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

Question 44

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

Answer 44

1) did lawyer deviate from the norms (2) reasonable probability the outcome would have been different if counsel been effective

Question 45

right to counsel- waiver of right to counsel:

Answer 45

must knowingly waive if you are gonna waive

Question 46

right to counsel- D has right to counsel at all CRITICAL STAGES of prosecution

Answer 46

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

Question 47

[TIP] generally the critical stages are

Answer 47

post-indictment

Question 48

right to counsel- shared counsel

Answer 48

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

Question 49

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

Answer 49

this violates right to counsel - this is the answer not miranda!

Question 50

guilty plea:

Answer 50

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

Question 51

severance:

Answer 51

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

Question 52

impartiality:

Answer 52

D has right to unbiased judge

Question 53

competency:

Answer 53

D must be competent to understand charges and work with the lawyer D may be medicated to get them competent to stand trial

Question 54

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

Answer 54

6 months

Question 55

Jury should be a

Answer 55

cross-section of the community

Question 56

state trial by 6 members =

Answer 56

must be unanimous

Question 57

state trial by 12 members =

Answer 57

need not be unanimous

Question 58

federal trial by 12 members =

Answer 58

must be unanimous

Question 59

any exclusion of a juror based on race/gender violates

Answer 59

equal protection

Question 60

right to public trial:

Answer 60

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)

Question 61

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

Answer 61

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)

Question 62

Procedural Rights -- prosecution's burden:

Answer 62

must prove all elements of the crime BEYOND A REASONABLE DOUBT

Question 63

Procedural Rights -- defendant's burden:

Answer 63

must prove a defense by PREPONDERANCE OF THE EVIDENCE

Question 64

Procedural Rights -- Presumptions

Answer 64

(1) NO mandatory presumptions in criminal cases Because (2) it violates due process

Question 65

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

Answer 65

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

Question 66

Procedural Rights - grand jury - couple of rules

Answer 66

(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

Question 67

double jeopardy:

Answer 67

cannot be tried for the same crime twice does not apply to anything BEFORE first trial Ex: grand jury, preliminary hearings

Question 68

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

Answer 68

jury trial: jury is sworn in bench trial: first witness is sworn in

Question 69

trial by a separate sovereign:

Answer 69

can be tried in DIFFERENT states can be tried in state AND Federal Court same state, different county - not ok

Question 70

double jep - retrial permitted:

Answer 70

D's successful appeal = retrial allowed Mistrial for necessity = retrial allowed

Question 71

double jep- Collateral estoppel:

Answer 71

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

Question 72

Punishment & Death Penality - Cruel and Unusual Punishment:

Answer 72

Sentence must be proportionate to crime Consistent with punishment for similar crimes Looking at other cases of other criminals

Question 73

Punishment & Death Penality - Rights during sentencing:

Answer 73

Right to counsel Right to remain silent

Question 74

Punishment & Death Penality - Death penalty:

Answer 74

Not cruel and unusual as long as procedural safeguards are in place to Prevent arbitrary or discriminatory sentencing

Question 75

Punishment & Death Penality - Death penalty exceptions:

Answer 75

Under 18 at time of crime Mentally challenged

Question 76

Can communications between client and attorney consultant be disclosed?

Answer 76

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