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CA Bar Prep 2022 > Crim. Pro. > Flashcards

Crim. Pro. Flashcards

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1
Q

What does the 4th amendment deal with?

A

Unreasonable search and seizure.

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2
Q

What right has not been held binding on the states?

A

The right to a grand jury.

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3
Q

What is search and seizure?

A

Any governmental control or possession over a person or a thing.

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4
Q

What is an arrest?

A

A governmental seizure taking a person against their will into custody for the purposes of conviction or questioning.

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5
Q

What is a seizure?

A

Under the totality of the circumstances a reasonable person would not feel free to decline a request or terminate an encounter.

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6
Q

What is required for a legal arrest? 🔀

A

Probable cause or a warrant.

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7
Q

What is the effect of an invalid arrest?

A

It has no effect on any subsequent criminal prosecution or conviction.

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8
Q

What are Terry stops?

A

(1) Police have the authority to briefly detain someone (2) even if they lack probable cause so long as they have (3) reasonable suspicion (4) supported by articulatable facts (5) of criminal activity.

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9
Q

What are articulatable facts?

A

A hunch is insufficient, there must be specific reasons.

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10
Q

What is the effect of informants?

A

There must be some facts that are indicia of reliability, most commonly a predicted future outcome.

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11
Q

What must the police do in a Terry stop?

A

In a diligent and reasonable manner confirm or dispel suspicions.

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12
Q

What is the nature of traffic stops?

A

(1) A sniff is not a search (2) so long as the time of detainment does not exceed the average time to issue a ticket or warning.

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13
Q

When is a drug sniffing dog impermitted?

A

Taking a drug sniffing dog onto the area around a house is not allowed.

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14
Q

What is the effect of a mistake of law on search and seizure?

A

It does not invalidate a search and seizure.

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15
Q

What is the informational roadblock?

A

A roadblock constructed by police to conduct questioning of people in the area where a crime occured.

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16
Q

What is required for an informational roadblock?

A

(1) Must stop cars on the basis of neutral, articulable standard and (2) Must be designed to serve purpose closely related to problem pertaining to cars and their mobility.

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17
Q

What is the effect of ulterior motives for stops?

A

Permitted so long as there is some valid reason for an actual violation of law the ulterior motive is irrelevant.

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18
Q

When is a warrant required?

A

For a search or seizure.

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19
Q

What are the steps for search & seizure?

A

(1) Government conduct, (2) standing to object, (3) valid warrant, or (4) exception to warrant.

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20
Q

What is governmental conduct?

A

(1) Law enforcement, (2) government agents, or (3) personal individuals acting at direction of law enforcement.

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21
Q

What type of law enforcement is not governmental conduct?

A

Mall security, private security, campus police.

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22
Q

What is standing to object to a discovery request?

A

A reasonable expectation of privacy.

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23
Q

When is there a reasonable expectation of privacy?

A

(1) Owned or had right to possess the searched place, (2) place searched was their home, and (3) person is overnight guest.

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24
Q

What is the effect of an illegal search of someone elses property?

A

No effect especially if abandoned.

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25
Q

How can police acquire geolocational information from cell-sites?

A

With a search warrant.

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26
Q

What nine areas are there no reasonable right to privacy?

A

(1) Sound of voice, (2) handwriting style, (3) car paint, (4) bank records, (5) publicly observable car location, (6) open fields, (7) airspace, (8) odors from luggage or car, (9) outside garbage for collection.

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27
Q

What must be the posture of garbage?

A

It must be on the curb for pickup to be validly searched.

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28
Q

What is required for obtaining warrant?

A

(1) Probable cause and (2) particularity.

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29
Q

What is sufficient source of probable cause?

A

(1) A credible informant, (2) given the circumstances.

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30
Q

What is particularity for obtaining a warrant?

A

Must describe the place to be searched, the items to be seized, and the contraband can be anticipated.

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31
Q

What is the rule for non-suspect third-parties?

A

So long as there is probable cause a warrant may be issued.

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32
Q

What is necessary for executing a warrant?

A

(1) Only law enforcement, (2) no third parties unless necessary to identify stolen property, (3) violation of knock and announce rule will not result in suppression of evidence.

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33
Q

What is the effect of a valid search warrant on people who are on the premises at the time it is executed?

A

Only people named in the warrant may be searched. Unnamed persons may not be searched.

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34
Q

What are the exceptions to search warrants?

A

(1) Search after a lawful arrest, (2) protective sweeps, (3) contemporaneous in time and place with the arrest.

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35
Q

What is the effect of unconstitutional arrest on searches?

A

Everything is inadmissible.

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36
Q

What is within the domain of a personal search?

A

The person and everything within their wingspan they may reach.

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37
Q

What is the Gant rule?

A

Incidental to an arrest the police may search a passenger compartment in a car if:

(1) Arrestee is unsecured [not cuffed] and may gain access to the vehicle
- OR-
(2) police reasonably believe evidence of arresting offense are there.

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38
Q

What is the effect of finding contraband different from what was suspected?

A

So long as the search itself is valid the uncovering of any illegal items will be admissible.

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39
Q

What are the rules for technological searches?

A

(1) Warrantless breath tests permitted, but not blood blood tests, and (2) physical attributes of phone may be searched, but not the data.

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40
Q

What is the automobile exception?

A

If police have probable cause to believe the vehicle contains fruits, instrumentality, or evidence of a crime, they may search entire vehicle including any containers they have probable cause to search.

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41
Q

When is an automobile not permitted to be searched?

A

When parked in the “curtielege” of a home.

42
Q

What is the search limit for containers?

A

(1) Probable cause and (2) reasonably related to that search.

E.g. Small boxes don’t have big guns.

43
Q

When may police search in an automobile stop?

A

No search may be permitted until after probable cause arises.

44
Q

If illegal items are visible from the outside of a car what is the effect?

A

A police may search the entire car because that item gave rise to probable cause.

45
Q

What is a plain view exception?

A

Police may search a place without a warrant when: (1) legitimately on premises, (2) discovery of illegal items (fruits or tools of crime), (3) see contraband, and it is (4) immediately apparent.

46
Q

What is the effect of consent to a search?

A

A person gives consent to a search only to a certain scope, however an illegal warrant negates consent.

47
Q

Who may consent to a search of premises?

A

(1) Apparent equal right to use or occupy property, (2) occupant cannot give valid consent when co-occupant is present and objects, (3) if there is a co-occupant is removed for unrelated reason, police may act on consent of remaining occupant.

48
Q

What is a Terry frisk v. stop?

A

Stop: brief detention for investigating suspicious conduct, Frisk: pat down of outer clothing and body to check for a weapon.

49
Q

What gives the right to seize contrabad during a search?

A

If on the plain feel of a pat down there is the identification of illegal items or weapons.

50
Q

What is the effect of having gang clothing?

A

Insufficient to give rise to reasonable suspicion for a Terry stop.

51
Q

What is the effect of people turning and moving away from police?

A

That gives rise to a reasonable suspicion to justify a stop.

52
Q

When may a police pursue someone into a private dwelling?

A

Within 15 minutes they are in hot pursuit of the suspect.

53
Q

What is the effect of the 6th amendment right to counsel on questioning?

A

(1) After a proper Miranda warning, (2) the 6th amendment restricts counsel to a specific charge and (3) therefore, police may question a suspect for a different crime without the appointed counsel for the different crime.

Any questioning of a charged defendant about the crime charged without the presence of counsel is a violation of the 6th.

54
Q

What is sufficient for custody?

A

Physical confinement or reasonable belief of no right to leave.

55
Q

What is an interrogation?

A

Any words or conduct by police likely to elicit an incriminating response. Miranda not required before any spontaneous statements.

56
Q

When is a Miranda right invoked?

A

With explicit and unambiguous expression.

57
Q

What is the effect of a Miranda violation?

A

Anything uncovered that is purposeful will be excluded, unpurposeful discoveries may still be admissible even if the testimony is not.

58
Q

What are the exceptions to the fruit of poisonous tree doctrine?

A

If the evidence is (1) obtained independently, (2) attenuation: causal link between police misconduct, (3) defendant intervening act of free will, (4) inevitably of discovery, (5) violation of knock and announce.

59
Q

What breaks the chain making evidence admissible from an original unlawful police action?

A

(1) Independent source, (2) intervening act of free will, (3) inevitable discovery.

60
Q

What rights are in grand jury

A

No right to challenge subpoena on 4th amendment, no right to counsel to evidentiary exclusion, no right to notice.

61
Q

What amendment gives a right to speedy trial?

A

The sixth amendment.

62
Q

What are the factors for a speedy trial?

A

(1) length, and (2) reason for delay, (3) assertion of right, (4) dismissal with prejudice

63
Q

What is the process for speedy trial question?

A

There must be a trial or charge.

64
Q

What is the rule for failure to disclose exculpatory material?

A

(1) intentional or negligent, (2) favorable to defendant, (3) prejudice as a result or reasonable result trial would have ended differently.

65
Q

What is the distinction between competency and insanity?

A

Insanity is a mental state at the time of the crime. Competency is the mental condition at the time of the trial.

66
Q

When is due process violated for judges?

A

(1) Actual malice against defendant or (2) financial interests in trial result.

67
Q

What kinda if criminal charges produce a right to trial?

A

When the punishment is over 6 months for crimes beyond petty offenses and is not a juvenile delinquency.

68
Q

How any jurors are required for criminal law?

A

Six and with a unanimous verdict.

69
Q

When is death penalty allowed?

A

Must be imposed under statutory scheme that gives jury reasonable discretion, full information, and guidance. Not for rape. No execution of prisoner who is insane at the time of the execution even if sane at the time of the crime. No minors.

70
Q

What is the right to appeal?

A

No constitutional right to appeal.

71
Q

What are the limits of habeaus corpus?

A

(1) No right for indigent counsel since it is a civil proceeding (2) petitioner has burden of proof to show unlawful detention by (3) preponderance of evidence, if (4) in actual custody.

72
Q

What is the effect of revocation of probation?

A

A right to counsel and proper hearing.

73
Q

When does jeapardy attach?

A

(1) A jury trial: empaneling and swearing of jury, (2) Bench trial: when first witness is sworn.

74
Q

What exceptions are to retrial?

A

(1) First trial ends in a hung jury, (2) manifest necessity to abort first trial [medical emergency], (3) Successfully appealed conviction unless for insufficient of evidence. However, no greater offense than the original conviction, (4) breach of plea agreement, (5) voluntarily tried in separate trials for different charges on the same set of facts.

75
Q

What is the effect of lesser included offense on double jeaopardy?

A

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

76
Q

What are separate soveriegns?

A

State and federal are separate soverigns, two states are separate sovereigns, municiple and state are not.

77
Q

What is the effect of separate soveriegns on double jeapordy?

A

Attachment does not apply to separate sovereigns barring double jeopardy.

78
Q

What is the 5th amendment right?

A

A right not to testify against oneself at trial in criminal cases. Merely being required to furnish one’s name does not violate the 5th amendment or count as a waiver.

79
Q

What is the scope of the 5th amendment?

A

Protects testimonial or communicative, not real or physical evidence.

80
Q

What is the effect of commenting on defendant’s silence?

A

Prosecutor can not comment on defendant’s silence after Miranda warnings or at trial, prosecutor can

81
Q

What is the process for determining admission of evidence from government conduct?

A

(1) Gov’t conduct, (2) reasonable expectation of privacy, (3) prob. cause & particularity if not then (4) does good faith defense can save the evidence, or (5) warrant requirements.

82
Q

What is the distinction between 5th & 6th amendments for rights to an attorney?

A

The 5th amendment gives the right to an attorney for investigations and interrogations before formal charges whereas the 6th amendment deals with the right to an attorney after a formal charge has been brought.

83
Q

How does the right to counsel operate in the 5th amendment?

A

(1) Not automatic and prior to charges, (2) Not offense-specific.

84
Q

How does the right to counsel operate in the 6th Amendment?

A

(1) automatic upon charges being filed, (2) offense-specific and allows police to question about other crimes.

85
Q

What is necessary for ineffective counsel on appeal?

A

(1) Reasonable probability, (2) trial outcome would have been different, (3) absent deficient performance.

86
Q

What is the exclusionary rule?

A

Evidence obtained in violation of defendant’s constitutional rights in a criminal trial are prohibited.

87
Q

What type of proceedings and acts does the exclusionary rule not apply to?

A

(1) Grand juries, civil proceedings, parole hearings, or administrative cases, (2) violations of the knock and announce rule in a valid search warrant, (3) evidence seized as a result of a miranda violation.

88
Q

How do lineups & showups affect right to counsel?

A

A suspect has a right to counsel at any post-charge in-person lineup or show-up. Does not apply to live ID procedures such as photographing and finger printing.

89
Q

What are the remedies for a violation of show-up or line-up right to counsel?

A

Defendant may move to suppress any subsequent in-trial identification made by the witness.

90
Q

How do grand juries operate?

A

(1) Secret, (2) suspect has no confrontation rights or right to attend, (3) witnesses are not entitled to Miranda warnings, (4) witnesses may not challenge a subpoena, (5) witnesses do not have a right to counsel, but may invoke the 5th (6) exclusionary rule does not apply.

91
Q

When are the requirements of a pre-trial hearing? 🔽

A

(1) Defendant is incarcerated or released on bail, (2) no determination of probable cause, (3) within 48 hours of detention.

92
Q

What is required for bail?

A

Must not be higher than necessary to ensure defendant will appear at trial.

93
Q

When may bail be denied?

A

(1) Flight risk or (2) danger to the community.

94
Q

What is required for a valid plea bargain?

A

The judge must (1) determine plea is (a) voluntarily and (b) intelligently made, and (2) ensure defendant understands (a) nature of the charge & critical elements, (b) maximum authorized penalty & any mandatory sentence, (c) right to plead not guilty, (d) waiving right to a jury trial.

95
Q

What will cause an appellate court to disturb a plea?

A

(1) Plea was involuntary, (2) lack of jurisdiction, (3) ineffective assistance of counsel, (4) prosecutor failed to honor the plea.

96
Q

What is the contract theory of a plea bargain?

A

Pleas will be enforced against both parties, but judge is not required to accept or adhere to the agreement. Prosecutor can threaten defendant with a more serious crime than initially charged and even follow through if defendant does not accept the plea.

97
Q

What is required for a jury?

A

(1) Jury must have at least 6 members, (2) jury pool must be a representative cross-section of the community, (3) must be impartial, (4) must be a unanimous verdict for serious offenses.

98
Q

What is the confrontation clause?

A

A defendant has the right to have adverse witnesses testify in-person and subject to cross-examination unless (1) exclusion is necessary for public policy and (2) reliability of the testimony is otherwise assured.

99
Q

What is the rule on co-defendant confessions?

A

A co-defendant confession implicating a defendant is inadmissible against the defendant at a joint jury trial (OK at bench trial) unless (1) confessing co-defendant is subject to cross-exam, (2) defendants have separate trials, (3) confession is redacted so all portions referring to the co-defendant are eliminated or (4) co-defendant confession is used to rebut defendant’s claim that the confession was obtained coercively.

100
Q

What are limitations on the death penalty?

A

(1) Under 18 at time of crime, (2) mental disability, (3) insanity at time of execution, or (4) conviction was for felony murder where either (a) defendant was not a major participant or (b) didn’t act with depraved indifference to human life.

CA Bar Prep 2022 (14 decks)

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