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Bar Prep Questions + Rule of Law > Crim Pro > Flashcards

Crim Pro Flashcards

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1
Q

what is the 4th amendment

A

people should be free in their persons from unreasonable searches and seizures

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2
Q

what is a search?

A

physical intrusion into a constitutionally protected area to obtain information

the person must have reasonable expectation of privacy in that area

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3
Q

what is a seizure of a person?

A

seizure of a person= arrest

warrants are NOT REQUIRED for arrests in public if supported by probable cause

warrants ARE REQUIRED for arrests in private (i.e. persons home) EVEN if in someone else’s home

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4
Q

seizure of a thing

A

requires a meaningful interference with a possessory interest in the thing

the only person who can challenge the constitutionality of a search or seizure is the person who was searched or seized

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5
Q

who can challenge the constitutionality of a search?

A

the person who was searched or seized

IF someone was in their friends home and their friends home was searched, then the defendant does not have standing

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6
Q

what requirements must warrant meet to be considered valid?

A

probable cause
particularity
oath or affirmation
detached and neutral magistrate

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7
Q

search warrant:

what is probable cause

A

fair probability
reasonable grounds
or
reasonably trustworthy information sufficient for a prudent person to conclude that:

a crime has been or is being committed
OR
there is evidence of criminality in place to be searched

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8
Q

search warrant:

what is particularity

A

sufficiently definite for police to identity persons places or items to be searched or seized with reasonable certainty.

must be on the face of the warrant or an incorporated affidavit

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9
Q

what are the warrant exceptions?

A 
plain view 
consent 
exigent circumstances 
automobile search 
search incident to lawful arrest 
inventory 
terry stop/frisk
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10
Q

warrant exceptions

plain view

A

police may seize an item they see in plain view or can “plain feel” if they have authority to be where they are and the item is connected with criminality

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11
Q

warrant exceptions

consent

A

voluntary under totality of circumstances

may not search home over present objection of co-occupant

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12
Q

warrant exceptions:

exigent circumstances

A

police have reasonable belief to believe delay in obtaining warrant would result in evidence destruction, danger to public/police or flight of suspect

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13
Q

warrant exceptions:

automobile search

A

probable cause that any area of car to be searched (including containers) harbors evidence of criminality

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14
Q

warrant exceptions: search incident to lawful arrest

person

A

contemporaneous search of person, lunge area, and containers for weapons or evidence

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15
Q

warrant exceptions: search incident to lawful arrest

car

A

no search unless reasonable belief that arrested occupant or recent occupant may access car
OR
reasonable belief that car contains evidence of crime of arrest (not speeding)

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16
Q

warrant exceptions: search incident to lawful arrest

home

A

during the time it takes to complete arrest, may conduct a protective sweep for accomplices in adjoining rooms if reasonable suspicion of danger

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17
Q

warrant exceptions: search incident to lawful arrest

inventory

A

within scope of a reasonable and routine procedure to protect valuables, police, and public, police may inventory contents of possession at time of booking and automobiles after impoundment

18
Q

warrant exceptions: search incident to lawful arrest

terry stop

A

reasonable suspicion that suspect is engaged in criminal activity based on specific and articulate facts

reasonable suspicion is less than probable cause BUT MORE than a hunch

19
Q

warrant exceptions: search incident to lawful arrest

terry frisk

A

terry stop PLUS reasonable suspicion that suspect is armed and dangerous

MAY NOT frisk for evidence ONLY weapons

20
Q

execution of the warrant

A

BEFORE THE SEARCH

police must knock and announce their presence and purpose before entering the premises

DURING THE SEARCH
police may take reasonable steps to secure premises including:
temporarily detaining individuals at the scene
AND
ordering occupants out of a car

21
Q

execution of the warrant:

when do police not have to announce their presence?

A

when it is REASONABLY believed:

that it would be dangerous
evidence would be destroyed

22
Q

exclusionary rule

fruit of the poisonous tree

A

any evidence gathered as a result of the state’s unconstitutional conduct is inadmissible against the person whose rights were violated unless an exception applies

REMEMBER: this is all evidence from the unconstitutional conduct

23
Q

when are confessions suppressed?

A

if in violation of:

due process clause 
6th amendment (right to counsel) 
5th amendment (miranda doctrine)
24
Q

what is the test for a due process violation?

A

whether the confession was involuntary because the accused’s will was overborne by state coercion.

25
Q

what is the 6th amendment?

A

right to counsel after the initiation of adversarial proceedings

the state cannot undermine this right by deliberate elicitation of a confession int he absence of counsel

26
Q

when does the right to counsel attach?

A

when formal charges are brought (indictment) NOT just an arrest

the test is violated when there is deliberate elicitation without counsel

27
Q

what is the miranda warning?

A
  • right to remain silent
  • any statements can be used against you
  • right to counsel before and during questions
  • if you cannot afford an attorney one will be appointed for you
28
Q

once a defendant’s miranda rights are invoked, the police must….

A

honor both the right to silence and the right to counsel

29
Q

what happens when the miranda rights are invoked BUT the suspect initiates convo?

A

if they initiate conversation or a significant amount of time has lapsed the police can resume interrogation after giving new warnings and receiving a valid waiver

30
Q

what happens if there is a first interrogation without miranda warnings BUT then there is a second interrogation and the warnings are given?

A

then the statements made from the FIRST interrogation are excluded but the statements from the SECOND interrogation are allowed.

31
Q

what happens in the court room when a defendant takes a guilty plea?

A

the judge must follow the plea-taking colloquy on the record.

nature of the charge
max authorized sentence and any statutory min
right to plead not guilty and have a trial
defendant waiting right to trial

32
Q

when can the defendant withdraw their guilty plea?

A 
defective plea-taking colloquy 
jurisdictional defect 
ineffective assistance of counsel 
OR 
prosecutor fails to fulfill his side of the plea bargain

REMEMBER: the judge is not bound by the prosecutor’s bargain

33
Q

double jeopardy

A

prohibits a person being put twice in jeopardy of life or limb for the same offense bythe same soverign.

34
Q

when does double jeopardy attach?

A

when someone is put “in jeopardy”

when the jury is sworn in
when the first witness is sworn in during a bench trial
when the judge accepts the plea unconditionally

35
Q

does double jeopardy apply to civil or criminal or both?

A

ONLY TO CRIMINAL

36
Q

when is double jeopardy NOT implicated?

A

when the charges are not the same offense as when each offense has an element that the other does not.

37
Q

when are retrials allowed?

A

if there is a hung jury
a mistrial due to manifest necessity
successful appeal

38
Q

what does the 5th amendment prohibit?

A

compelled testimony of the D in a criminal case.

39
Q

who many invoke the privilege against self-incrimination?

AKA plead the 5th

A

ANYONE

40
Q

when can someone plead the 5th?

A

in a custodial interrogation

any proceeding with testimony under oath

41
Q

what does the the privilege against self-incrimination NOT apply to?

A

physical evidence
OR
prior uncompelled communication

Bar Prep Questions + Rule of Law (15 decks)

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