Crim Pro

Question 1

4th Amendment rule statement

Answer 1

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

Question 2

1. government conduct

Answer 2

to demonstrate government conduct, the defendant must prove that the government or police were involved in the unreasonable search and seizure

Question 3

2. reasonable expectation of privacy

Answer 3

defendant must also prove that he has a reasonable expectation of privacy as to the places searched and items seized by the government

Question 4

3. seizure of a person overview

Answer 4

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)

Question 5

a. arrest

Answer 5

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

Question 6

b. terry stop (investigatory stop) and frisk

Answer 6

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.

Question 7

c. police checkpoints

Answer 7

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

Question 8

d. traffic stops

Answer 8

traffic stops are valid if the officer has reasonable suspicion or probable cause that a traffic law has been violated

Question 9

4. search

Answer 9

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

Question 10

a. valid search warrant

Answer 10

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

Question 11

b. exceptions to warrantless search

Answer 11

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

Question 12

(i) terry stop (investigatory stop) and frisk)

Answer 12

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

Question 13

(ii) search incident to lawful arrest

Answer 13

a search incident to a lawful arrest must be reasonable in scope and incident to a lawful arrest that is based upon probable cause

1. lawful arrest
2. 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

Question 14

(iii) automobile exception

Answer 14

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

Question 15

(iv) plain view

Answer 15

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

Question 16

(v) exigent circumstances

Answer 16

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

Question 17

(vi) consent

Answer 17

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

Question 18

c. exclusionary rule and “fruit of the poisonous tree”

Answer 18

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

Question 19

(i) exceptions to the exclusionary rule

Answer 19

• 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

Question 20

5th Amendment rule statement

Answer 20

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)

Question 21

1. miranda warnings - custodial interrogation

Answer 21

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.

Question 22

a. custody

Answer 22

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

Question 23

b. interrogation

Answer 23

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)

Question 24

c. waiver of miranda

Answer 24

D may waive his miranda rights, but it must be a voluntary waiver and cannot be the result of government coercion

Question 25

d. invoking miranda

Answer 25

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

Question 26

e. re-approaching defendant

Answer 26

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

Question 27

f. spontaneous statements

Answer 27

if D voluntarily makes a statement, the statement will be admissible, even if he has previously invoked his miranda rights

Question 28

g. standing

Answer 28

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

Question 29

2. exclusion of statements

Answer 29

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

Question 30

6th Amendment

Answer 30

1. 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
2. offense specific: the 6th amendment doesn’t prevent the police from questioning D about unrelated offenses that aren’t the charged crimes in question
3. waiver: if D waives his 6th amendment right to counsel, it must be knowing and voluntary

Question 31

Due Process Clause, 14th & 5th Amendments

Answer 31

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.

Question 32

confrontation clause

Answer 32

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:

1. declarant is unavailable and
2. 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

Question 33

guilty plea: procedural requirements

Answer 33

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

Question 34

lineup evidence/in-court identification

Answer 34

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.

Question 35

right to represent oneself, effective assistance & choice of counsel

Answer 35

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

Question 36

right to a separate trial from co-defendant

Answer 36

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

Question 37

right to a speedy trial

Answer 37

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

Question 38

right to testify at trial

Answer 38

D has right to testify and present witnesses on his behalf

Question 39

6th amendment right to jury trial

Answer 39

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

Question 40

capital punishment

Answer 40

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

Question 41

double jeopardy clause

Answer 41

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

Question 42

apprendi doctrine 6A: enhancing criminal sentences

Answer 42

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

Question 43

grand jury

Answer 43

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.

Question 44

note on criminal D

Answer 44

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.

Question 45

derivative use immunity vs. transactional immunity

Answer 45

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)

Question 46

handwriting exemplars

Answer 46

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).

Question 47

Prison & Custody

Answer 47

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.

Question 48

entry into home without warrant

Answer 48

Warrantless entry into a home or business is presumed unlawful unless the government demonstrates both probable cause and exigent circumstances.

Question 49

voluntary confession

Answer 49

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.

Question 50

judgment of acquittal

Answer 50

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