Crim pro

Question 1

Seizure

Answer 1

under the totality of the circum- stances, a reasonable person would feel that they were not free to decline the officer’s requests or otherwise terminate the encounter.

Question 2

Arrest

Answer 2

An arrest occurs when the police take a person into custody against their will for purposes of criminal prosecution or inter- rogation.

An arrest must be based on probable cause

Question 3

Terry Stop

Answer 3

police have the authority to briefly detain a person even if they lack probable cause to arrest. If the police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts (that is, not merely a hunch), they may detain a person for investigative purposes

Question 4

Reasonable suspicion

Answer 4

is more than just vague suspicion but is less than probable cause. Whether the police have reason- able suspicion depends on the totality of the circumstances.

Question 5

Probable Cause

Answer 5

that is, trust- worthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law.

Question 6

To be valid, the roadblock must:

Answer 6

Stop cars on the basis of some neutral, articulable stan- dard (for example, every car) and

Be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility

Question 7

Steps to analyzing search and seizure

Answer 7

government conduct

standing

valid warrant

exceptions to warrant requirement

Question 8

Valid search warrant

Answer 8

Probable cause and

particularity: describe with particularity the place to be searched and items to be seized.

Question 9

Warrant execution

Answer 9

only police may execute a warrant

no third parties unless identifying stolen property

violation of knock and announce rule nor result in suppression of evidence

Question 10

FOURTH AMENDMENT— EXCEPTIONS TO THE WARRANT REQUIREMENT

Answer 10

SEARCH INCIDENT TO CONSTITUTIONAL ARREST

AUTOMOBILE EXCEPTION

PLAIN VIEW

Consent (a warrant negates consent)

HOT PURSUIT, EVANESCENT EVIDENCE, AND EMERGENCY AID

Question 11

SEARCH INCIDENT TO CONSTITUTIONAL ARREST

Answer 11

Incident to a constitutional arrest (that is, one based on probable cause to believe a law has been violated and that meets other constitutional requirements),

the police may search the person and areas into which they might reach to obtain weapons or destroy evidence. The police may also make a protective sweep of the area if they believe accom- plices may be present.

Question 12

SEARCH INCIDENT TO CONSTITUTIONAL ARREST (Automobiles)

Answer 12

The police may conduct a search of the passenger compartment of an automobile incident to arrest only if at the time of the search:

• The arrestee is unsecured and still may gain access to the interior of the vehicle; or
• The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle

Question 13

AUTOMOBILE EXCEPTION

Answer 13

If the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search.

The probable cause necessary to justify the warrantless search of an auto under the automobile exception can arise after the car is stopped, but the probable cause must arise before anything or anybody is searched.

Question 14

PLAIN VIEW

Answer 14

The police may make a warrantless seizure when they:

• Are legitimately on the premises

• Discover evidence, fruits or instrumentalities of crime, or
contraband

• See such evidence in plain view; and
• Have probable cause to believe (that is, it must be imme- diately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime

Question 15

HOT PURSUIT, EVANESCENT EVIDENCE, AND EMERGENCY AID

Answer 15

Evanescent evidence is evidence that might disappear quickly if the police took the time to get a warrant.

Police in hot pursuit of a fleeing felon may make a warrant- less search and seizure and may even pursue the suspect into a private dwelling. If the police are not within 15 minutes behind the fleeing felon, it is not a hot pursuit that falls under the exception.

A police officer may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public.

Question 16

Public School Searches

Answer 16

A warrant or probable cause is not required for public school officials to search public school students or their posses- sions; only reasonable grounds for the search are necessary.

A school search will be held to be reasonable only if:
• It offers a moderate chance of finding evidence of wrongdoing

• The measures adopted to carry out the search are reasonably related to the objectives of the search; and
• The search is not excessively intrusive in light of the age and sex of the student and nature of the infraction

Question 17

Harmless Error Test Applies

Answer 17

If an involuntary confession is admitted into evidence, the harmless error test applies; this means the conviction need not be overturned if there is other overwhelming evidence of guilt.

Question 18

SIXTH AMENDMENT RIGHT TO COUNSEL

Answer 18

The Sixth Amendment guarantees the right to the assistance of counsel in all criminal proceedings, which include all critical stages of a prosecution after judicial proceedings have begun (for example, formal charges have been filed).

It prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged unless the defendant has waived their right to counsel.

Question 19

Stages at Which Not Applicable (6th Amendment)

Answer 19

• Blood sampling
• Taking of handwriting or voice exemplars
• Precharge or investigative lineups
• Photo identifications
• Preliminary hearings to determine probable cause to detain
• Brief recesses during the defendant’s testimony at trial
• Discretionary appeals
• Parole and probation revocation proceedings
• Post-conviction proceedings

Question 20

Waiver of 6th amendment

Answer 20

The Sixth Amendment right to counsel may be waived. The waiver must be knowing and voluntary.

Question 21

Miranda warnings

Answer 21

required when a suspect is in custodial interrogation.

Question 22

Custody Requirement (Miranda)
Determining whether custody exists is a two-step process:

Answer 22

The first step (sometimes called the “freedom of movement test”) requires the court to determine whether a reasonable person under the circumstances would feel that they were free to terminate the interrogation and leave.

whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.”

Question 23

Interrogation Requirement (Miranda)

Answer 23

“Interrogation” includes any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee.

Question 24

Invocation of Right to Remain Silent

Answer 24

must be unambiguous

the police must scrupulously honor this request by not badgering the detainee.

Question 25

Invocation of Right to Counsel

Answer 25

must be unambiguous

all questioning must cease until counsel has been provided unless the detainee: (1) then waives their right to counsel (for example, by reiniti- ating questioning) or (2) is released from the custodial interrogation back to their normal life and 14 days have passed since release

Question 26

EXCLUSIONARY RULE

Answer 26

unconstitutionally obtained evidence is inadmissible at trial, and all “fruit of the poisonous tree” (that is, evidence obtained from exploitation of the unconstitutionally obtained evidence) must also be excluded unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct

Question 27

Exceptions to fruit of the poisonous tree doctrine:

Answer 27

• The fruits derived from statements obtained in violation of Miranda
• Evidence obtained from a source independent of the original illegality
• Evidence for which the connection between the uncon- stitutional police conduct and the evidence is remote (considering whether the misconduct was purposeful or flagrant) or has been interrupted by some intervening circumstance, so that the causal link between the police misconduct and the evidence is broken (“attenuation”— for example, defendant is illegally arrested but is released and later returns to the station to confess; police officers technically make an unlawful stop, but there is an arrest warrant out for the detainee)
• This includes intervening acts of free will on the part of the defendant.
• Inevitable discovery—that is, the prosecution can show that the police would have discovered the evidence whether or not the police acted unconstitutionally
• Violations of the knock and announce rule

Question 28

There are four exceptions to a good faith reliance on a defec- tive warrant:

Answer 28

(1) The affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied on it.
(2) The affidavit underlying the warrant is so lacking in partic- ularity that no reasonable officer would have relied on it.
(3) The police officer or prosecutor lied to or misled the magistrate when seeking the warrant.
(4) The magistrate is biased and therefore has wholly abandoned their neutrality.

Question 29

Grand jury proceedings

Answer 29

conducted in secret

defendant has no right to notice

no right to counsel

no right to have evidence excluded

no right to challenge subpoena on 4th amendment grounds

A conviction resulting from an indictment issued by a grand jury from which members of a minority group have been excluded will be reversed without regard to harmlessness of error.

Question 30

Speedy trial factors

Answer 30

length of delay

reason for delay

whether defendant asserted right

prejudice to defendant

Question 31

Prosecutor’s Duty to Disclose Exculpatory Evidence

Answer 31

Failure to disclose such evidence—whether willful or inadvertent—violates the Due Process Clause and is grounds for reversing a conviction if the defendant can prove that:
(1) the evidence is favorable to the defendant because it either impeaches or is exculpatory; and

(2) prejudice has resulted (that is, there is a reason- able probability that the result of the case would have been different if the undisclosed evidence had been presented at trial).

Question 32

Challenges for cause

Answer 32

juror should be excluded for cause if jurors views would prevent or substantially impair performance of duties

Question 33

Circumstances Constituting Ineffective Assistance

Answer 33

An ineffective assistance claimant must show:
• Deficient performance by counsel; and
• But for the deficiency, the result of the proceeding would have been different (for example, the defendant would not have been convicted or the sentence would have been shorter)

Question 34

Co-defendants confession may be admitted if:

Answer 34

All portions referring to the other defendant can be eliminated

The confessing defendant takes the stand and subjects themself to cross-examination with respect to the truth or falsity of what the statement asserts; or

The confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that their confes- sion was obtained coercively

Question 35

a plea can be set aside for

Answer 35

(1) involuntariness (failure to meet standards for taking a plea),
(2) lack of jurisdiction,
(3) ineffective assistance of counsel, or
(4) failure to keep the plea bargain.

Question 36

HABEAS CORPUS PROCEEDING

Answer 36

An indigent has no right to appointed counsel at a habeas corpus proceeding.

Petitioner has the burden of proof by preponderance of evidence to show an unlawful detention.

Question 37

PRISONERS’ RIGHTS

Answer 37

Prison regulations impinge on due process rights only if the regulations impose “atypical and significant hardship” in relation to the ordinary incidents of prison life.

Question 38

Double Jeopardy

Answer 38

Jeopardy attaches in a jury trial at the empaneling and swearing of the jury.

In bench trials jeopardy attaches when the first witness is sworn.

Commencement of a juvenile proceeding bars a subsequent criminal trial for the same offense.

Question 39

Lesser Included Offenses

Answer 39

Attachment of jeopardy for a greater offense bars retrial for lesser included offenses.

Attachment of jeopardy for a lesser included offense bars retrial for a greater offense.

Question 40

PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION

Answer 40

The Fifth Amendment privilege against self-incrimination can be asserted by any person in any type of case. Only natural persons may assert the privilege, not corporations or partner- ships.