Crim Pro Flashcards
4th Amendment rule statement
the 4th amendment prohibits unreasonable searches and seizures. in order to assert a 4th amendment violation, a defendant must demonstrate government conduct and that he had a reasonable expectation of privacy
- government conduct
to demonstrate government conduct, the defendant must prove that the government or police were involved in the unreasonable search and seizure
- reasonable expectation of privacy
defendant must also prove that he has a reasonable expectation of privacy as to the places searched and items seized by the government
- seizure of a person overview
a seizure occurs if under the totality of circumstances, a reasonable person would not feel free to leave. types of seizure include arrest, stop and frisk, police checkpoints, and traffic stops (CATS)
a. arrest
an arrest in D’s home generally requires an arrest warrant. however, an arrest warrant is not required to make an arrest in a public place. if an officer witnesses a felony or misdemeanor, he can make a warrantless arrest. also, if an officer has probable cause to believe that a felony has been committed (not witnessed by the officer), an officer can make a warrantless arrest
*if a confession is too closely tied to the illegal arrest, it may be suppressed
b. terry stop (investigatory stop) and frisk
an officer can stop a person if he has reasonable suspicion that the person is engaged in or has engaged in criminal activity
*a mere hunch is not enough
*If an officer makes an unconstitutional investigatory stop, and learns during the stop that the suspect was subject to a valid arrest warrant, arrests the suspect, and seizes incriminating evidence during a search incident to that arrest, then the evidence the officer seizes as part of the search incident to the arrest is admissible.
c. police checkpoints
police checkpoints are generally valid, as long as the stop is conducted in a non-discriminatory manner and the purpose of the checkpoint is for an articulable reason beyond general crime prevention. for example, DUI checkpoints are legal, but checkpoints that are generally looking for contraband are not
d. traffic stops
traffic stops are valid if the officer has reasonable suspicion or probable cause that a traffic law has been violated
- search
a search occurs when the governmental conduct violates the defendant’s reasonable expectation of privacy
- the use of sense-enhancing technology that is not in use by the general public constitutes a search
- an inspection conducted from the air at a height of at least 400 feet does not violate a reasonable expectation of privacy and therefore is not a search for the purposes of the Fourth Amendment
a. valid search warrant
to be valid, a warrant must 1. be issued by a detached and neutral magistrate, 2. be based upon probable cause, and 3. describe with particularity the defendant and crime or the places to be searched and items to be seized
subject to certain exceptions, under the “knock and announce” rule, the police must also announce their presence and state their purpose
finally, evidence collected in violation of D’s 4th amendment right to privacy may nonetheless be admissible if police officers acted in good faith reliance upon a defective search warrant as measured by a reasonable person standard
*anticipatory search warrants are permitted, must be probable cause to believe that the triggering condition will occur and, if that condition does occur, there is a fair probability that contraband or evidence of a crime will be found in a particular place
b. exceptions to warrantless search
warrantless searches constitute a 4th amendment violation, and evidence seized during the search will be inadmissible unless subject to an exception.
SCAPES
stop & frisk, consent, automobile exception, plain view, exigent circumstances, and search incident to lawful arrest
(i) terry stop (investigatory stop) and frisk)
an officer can stop a person if he has reasonable suspicion that the person is engaged in criminal activity
frisk of a person: the officer can then frisk or pat down the outer clothing of D for the purposes of officer safety. if the officer feels an object whose identity is immediately obvious as contraband, it can be seized during the frisk under the “plain feel” exception
automobile frisk: if an officer lawfully stops a car (reasonable suspicion that a traffic violation has occurred), the officer may frisk the inside of the car if she has reasonable suspicion that there is a weapon in the car. however, the officer can only frisk the areas of the car that may contain a weapon
(ii) search incident to lawful arrest
a search incident to a lawful arrest must be reasonable in scope and incident to a lawful arrest that is based upon probable cause
- lawful arrest
- scope of search: the police may conduct a contemporaneous search of the arrestee and his immediate surrounding area, such as pockets and containers. if the arrestee is at home, the police can search the closets or other spaces adjoining the place of arrest in the home where an attack is likely. if the arrestee is in a vehicle, the police may search the glove compartment if the arrestee is within reaching distance of it or it is reasonable that evidence might be in the vehicle
(iii) automobile exception
under the automobile exception, the police can search any part of D’s car if they have probable cause that it contains contraband or other evidence of a crime
(iv) plain view
no warrant is required to seize evidence in plain view if the police are lawfully in the location from which the evidence can be viewed and the criminal nature of the item is immediately apparent
(v) exigent circumstances
under a totality of circumstances test, exigent circumstances may make a warrantless search constitutional if probable cause exists.
exigency can be determined by many factors, including
- hot pursuit of a fleeing felon,
- reasonable apprehension that a delay in getting a warrant would result in immediate danger of evidence destruction, or
- police and/or public safety
(vi) consent
if a party consents to a search, a warrant is not required. the consent must be voluntary, and there must be no threats of harm, compulsion, or the false assertion of lawful authority
*a third party’s consent to a search is not invalid because he lacks the authority to consent, so long as the police reasonably believe that he does have such authority
c. exclusionary rule and “fruit of the poisonous tree”
the exclusionary rule applies to evidence seized as a result of government illegality (4, 5, or 6A), as well as the “fruit of the poisonous trees,” which is any evidence derived from the illegal government action
(i) exceptions to the exclusionary rule
- inevitable discovery through lawful means
- independent source unrelated to the taint
- passage of time
- good faith reliance on validity of warrant
- isolated negligence by law enforcement personnel doesn’t necessarily trigger exclusionary rule
5th Amendment rule statement
the 5th amendment provides that no person shall be compelled in a criminal case to testify against himself. the right applies to testimonial evidence coercively obtained by the police
*the Fifth Amendment privilege does not extend to the custodian of corporate records (because the request for production is being made to the custodian in his capacity as a corporate employee)
- miranda warnings - custodial interrogation
police officers must give defendants miranda warnings when the defendant is in custody and being interrogated. miranda warnings inform the defendant of his right to remain silent and the right to an attorney
*If interrogation is stopped for a long duration, the warnings must be given again
*However, one exception to the Miranda requirement permits the police to question a suspect without Miranda warnings when the public’s safety is at risk.
a. custody
a person is in custody if he reasonably believes he is not free to leave or is otherwise deprived of his freedom in a significant way
b. interrogation
a person is subject to interrogation if the police engage in any conduct that is likely to elicit a response, whether incriminating or exculpatory
(but can be undercover cop)
c. waiver of miranda
D may waive his miranda rights, but it must be a voluntary waiver and cannot be the result of government coercion
d. invoking miranda
if D unambiguously asserts his right to an attorney, then the police cannot question him without either providing an attorney or obtaining a waiver of the right to counsel
e. re-approaching defendant
if D invokes his miranda rights (for attorney), the police may not re-approach D to question him about the charged crime or any other crime
f. spontaneous statements
if D voluntarily makes a statement, the statement will be admissible, even if he has previously invoked his miranda rights
g. standing
D may only assert his own miranda rights; he may not assert a miranda rights violation on behalf of another person, such as a co-defendant who has had her miranda rights violated
- exclusion of statements
statements made in violation of miranda rights will be excluded, but they are admissible for impeachment purposes if D chooses to testify and the prosecution seeks to impeach D’s testimony.
any physical fruits of the confession, such as evidence seized in reliance on statements made in the confession (e.g. location of contraband) are not excluded
- involuntarily obtained statements (by threat) is never admissible against D
- whether to overturn conviction depends on harmless error standard (if this piece of evidence hadn’t been admitted, would it make a diff to outcome?)
- evidence obtained as result of involuntary statement is fruit of the poisonous tree and is presumptively inadmissible
6th Amendment
- right to counsel: 6th amendment right to counsel automatically applies at all critical stages of prosecution after formal proceedings begin. the right attaches when the state initiates prosecution through an indictment or formal charge and ends at the sentencing stage
- applies to all felony prosecutions & misdemeanor prosecutions in which jail time is imposed
- doesn’t apply to pre-indictment investigative lineups, witnesses looking at photo arrays, or discretionary appeals & habeas proceedings - offense specific: the 6th amendment doesn’t prevent the police from questioning D about unrelated offenses that aren’t the charged crimes in question
- waiver: if D waives his 6th amendment right to counsel, it must be knowing and voluntary
Due Process Clause, 14th & 5th Amendments
under the due process clause, which is applicable to the states under the 14th amendment and the federal government under the 5th amendment, police line-ups must not be conducted in a manner that is unnecessarily suggestive or provides a substantial likelihood of misidentification
The Due Process Clause prohibits the imposition of a harsher sentence upon retrial of a defendant who successfully appeals a conviction, when the harsher sentence constitutes a penalty imposed on the defendant for the exercise of her right to appeal her conviction.
confrontation clause
Crawford doctrine: if statement is testimonial (made under circumstances which would lead a reasonable person to believe statement would be used at later trial), 6A bars admission of statement if:
- declarant is unavailable and
- D had no prior opportunity to cross examine witness
Bruton doctrine: D’s own statements always admissible against him, but non-testifying co-D’s statements inadmissible against other D
guilty plea: procedural requirements
competence to stand trial: whether D comprehends the nature of the proceedings against him and can assist his lawyer in defending the case. if so, also competent to plead guilty and waive right to trial
when D pleads guilty, he waives various trial rights, such as right to put prosecution to its proof, to confront and produce witnesses, to trial by jury, to challenge intro of evidence, to appeal if is conviction
for guilty plea to be valid, D must knowingly and intelligently waive these rights. the judge must:
- inform D of his right and makes sure D understands them
- informs D of possible sentences
- informs D of immigration consequences
- makes sure there’s factual basis for plea
- determines plea didn’t result from use of force, coercion, threats, or promises
- D entitled to competent assistance from counsel in plea bargaining process
- if D challenges plea agreement and succeeds in reopening case, prosecution can reinstate dropped charges
lineup evidence/in-court identification
court can exclude testimony of witness picked D out of lineup that was impermissibly suggestive
prosecution must establish by clear & convincing evidence that witness would’ve identified D even without suggestive lineup
*In order to have the identification admitted, the prosecution can offer evidence that the identification was nonetheless reliable. In making its ruling, the court is to consider the following factors: i) the witness’s opportunity to view the defendant at the time of the crime; ii) the witness’s degree of attention at the time of the crime; iii) the accuracy of the witness’s description of the defendant prior to the identification; iv) the level of certainty at the time of the identification; and v) the length of time between the crime and the identification.
right to represent oneself, effective assistance & choice of counsel
D entitled to waive right to counsel and represent himself as long as do it knowingly and voluntarily (pro se)
- need to be competent enough to understand what they’re doing
- no constitutional right to a back-up attorney
effective assistance: strickland test:
- performance: did counsel’s performance fall below the wide range of reasonable conduct that lawyer might engage in?
prejudice: there is a reasonable probability that, had counsel performed effectively, the result would’ve been different - if denied effective assistance of counsel, conviction must be reversed
D who can afford retained counsel is entitled to counsel of their choice as long as lawyer is properly admitted in jurisdiction, available for trial, and no conflict/reason to disqualify lawyer
-D who is denied counsel of choice is entitled to have conviction reversed
right to a separate trial from co-defendant
joint representation can lead to a conflict of interest
if is actual conflict, judge must warn Ds that joint rep is a risk and give them opportunity to get separate counsel
if conflict of interest actually effects counsel’s behavior, presumption of prejudice, new trial
right to a speedy trial
D can be injured by passage of time btw alleged crime and trial, statutes of limitations begins to run when crime occurs (for continuing offenses, begins to run at end of offense)
due process clause protects against pre-accusation delay
speedy trial clause of 6th amendment protects Ds against delay that occurs btw time of arrest or indictment and time of trial
4 factors: 1. length of delay, 2. reason for delay, 3. whether D asserted his right to a speedy trial, and 4. risk of prejudice to D
right to testify at trial
D has right to testify and present witnesses on his behalf
6th amendment right to jury trial
D has right to jury trial for all serious offenses, for which authorized punishment is more than 6 months
federal: 12 members
states: 6 or more
* both must be unanimous
begins with venire/jury pool (fair cross section of community), jury selected through voir dire, unlimited for-cause challenges, limited peremptory challenges (for any reason, but not on basis of race or sex)
*no constitutional right to a bench trial
capital punishment
only when victim dies, not on:
- Ds under 18 when committed crime
- Ds who suffer from cognitive impairment
- Ds who are insane at time of execution
- procedural safeguards, bifurcated trial, etc.
- in felony-murder cases, the death penalty may not be imposed if the defendant, acting as an accomplice, did not kill, attempt to kill, or intend to kill, unless the defendant significantly participated in the commission of the felony and acted with reckless indifference to human life
- in order for a judge to impose the death sentence in a jury trial, the jury must find at least one aggravating circumstance beyond a reasonable doubt
double jeopardy clause
protection against prosecution for same offense after acquittal/conviction & protection against multiple prosecutions or punishments for the same offense
same offense: blockburger test: whether each statutory provision requires proof of an element the other does not
- offenses with different victims are separate offenses
- separate sovereigns rule: if 2 diff sovereigns have jurisdiction over crime (state & US or 2 diff states), they can each try D separately
jeopardy attaches when jury sworn in or, in bench trial, when first witness is sworn in
acquittal: if acquitted, the end & can’t be retried by same jurisdiction for same offense
conviction: if D convicted & he doesn’t appeal or conviction affirmed, can’t be retried
* if jury convicts & he appeals and conviction reversed, can be retried unless reversal based on finding of insufficient evidence
- however, when jeopardy has attached with respect to a lesser included offense prior to the occurrence of an event necessary to establish the greater offense, the defendant may be subsequently tried for the greater offense (e.g. convicted of rape, then woman dies, can be tried for felony murder)
- does not apply if charges simultaneously brought & D gives guilty plea to lesser-included offense, can still be charged with greater
apprendi doctrine 6A: enhancing criminal sentences
judges can’t enhance criminal sentence beyond statutory maximums based on facts other than those decided by jury beyond reasonable doubt
many statutes give judge wide discretion to sentence D
exception: sentence enhancement based on prior criminal convictions need not be found by a jury
grand jury
all felony charges initiated by indictment by grand jury unless D waives
grand jury can consider illegally obtained evidence and hearsay
secret, doesn’t have to be unanimous
states can choose whether to do grand jury indictment or by information (if information, need preliminary hearing for judge to determine if probable cause)
a defendant who is indicted by a grand jury from which members of a racial group have been deliberately excluded has standing to raise Equal Protection claims of the excluded racial group, even though the defendant is not a member of the excluded racial group.
note on criminal D
A state (or the federal government) may not require a person on whom a criminal penalty would be imposed (e.g., a defendant) to disprove an element of the offense.
derivative use immunity vs. transactional immunity
derivative use: protects a witness from the use of the witness’s own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution (unless independently found), but does not protect him from its use in a civil suit
transactional immunity: fully protects witness from future prosecution for crimes related to her testimony (total immunity)
handwriting exemplars
The taking of handwriting exemplars does not violate the Fourth Amendment (no reasonable expectation of privacy), the Fifth Amendment (no protection for physical evidence), or the Sixth Amendment (not a critical stage of prosecution).
Prison & Custody
Imprisonment alone does not necessarily create a custodial situation within the meaning of Miranda. The questioning of a prisoner, who is removed from the general prison population, about events that took place outside the prison is not categorically “custodial” for Miranda purposes. A standard, objective “totality of circumstances” analysis applies when an inmate is interviewed, including consideration of the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted. In addition, police may re-open interrogation of a suspect who has asserted his Fifth Amendment right to counsel if there has been a 14-day or more break in custody, such as the release back into the general prison population of a suspect who has been incarcerated for another crime. In such circumstances, the officers must give fresh Miranda warnings and get a valid waiver before beginning questioning.
entry into home without warrant
Warrantless entry into a home or business is presumed unlawful unless the government demonstrates both probable cause and exigent circumstances.
voluntary confession
Whether a statement is voluntary or coerced is determined based on the totality of the circumstances, including facts such as the conduct of the police, the characteristics of the defendant, and the time of the statement.
judgment of acquittal
A court should only grant a judgment of acquittal if it finds that there is insufficient evidence for a jury reasonably to find the defendant guilty. The Due Process Clause requires that the prosecution prove all of the elements of the case beyond a reasonable doubt
