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2022 MBE > Crim Pro > Flashcards

Crim Pro Flashcards

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1
Q

4th Amendment

A

right to be free from unreasonable searches and seizures of person and property by the government and agents

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2
Q

4th Amendment Standing

A

Standing: No standing to assert 4th violation unless D has been seized or had reasonable expectation of privacy with regard to the place searched or the item seized

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3
Q

Seizure occurs when

A

occurs when officer, by physical force or show of authority, intentionally restrains a person’s freedom of movement

Types: Terry stops, traffic stops, arrests

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4
Q

Test for whether seizure occurred

A

Whether a RP would feel free to decline request and terminate encounter

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5
Q

Lawful investigatory detention/Terry stops:

A

lawful when officer has reasonable suspicion, based on articulable facts, to believe that D has/will engage in crime.

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6
Q

Questioning during investigatory detention/Terry stops:

A

Police may question for a limited period of time. No need for Miranda.

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7
Q

Lawful traffic stop

A

lawful when officer has reasonable suspicion to stop a car © Checkpoint

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8
Q

Lawful arrest

A

Lawful when there is a probable cause to believe that the person has committed a crime

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9
Q

Pretext arrest:

A

as long as probable cause exists, it is irrelevant whether officer stopped the person for other crimes

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10
Q

Validity of arrest warrant

A

valid if (a) issued by a neutral magistrate;

(b) based on probable cause to believe that the person has committed a particular crime; and
(c) identifies the person and the offense

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11
Q

Can police enter home without an arrest warrant

A

Without warrant, cannot enter home unless (1) exigent circ’s or (2) consent

Exigent: reasonable belief of danger to the officer or destruction of the evidence. ©© protective sweep, etc.

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12
Q

Warrantless arrest:

A

Officer can arrest in a public place for

(1) crimes committed in officer’s presence or
(2) if outside the presence, has probable cause to believe person committed a felony.

© cannot arrest for misdemeanor committed outside presence

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13
Q

Search occurs when

A

occurs when gov conduct violates a reasonable expectation of privacy.

e.g. Homes, hotel room, office, luggage, backyard (curtilage) © open fields, trash cans, abandoned property, streets

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14
Q

Reasonable expectation of privacy for information visually obtained while flying over the residence

A

No reasonable expectation of privacy. Does not violate privacy

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15
Q

Reasonable expectation of privacy for information obtained by a device

A

Use of a device/sensing tech that is (a) not available to the general public and (b) capable of detecting lawful activity = violate privacy

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16
Q

Search warrant is valid when

A

is valid if:

(a) issued by a neutral magistrate
(b) based on probable cause that the item is fruit, instrumentality, or evidence of crime; and
(c) describe with particularity the place and item

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17
Q

Search warrant search can still violate 4th if

A
  • warrant is based on an anonymous tip

- scope exceeded (warrant authorized search for a limited purpose).

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18
Q

Warrantless search exceptions

A

ESCAPES

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19
Q

Warrantless search exception: Exigent circumstances

A

“Hot pursuit” of fleeing felon, immediate danger to safety, or destruction of evidence. E.g. Blood sample

© protective sweep

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20
Q

Search incident to lawful arrest:

A

A lawful arrest permits a contemporaneous search of person and immediate surroundings within reasonable scope. © Cell phone content

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21
Q

Search incident to lawful arrest: scope of search on the streets

A

person and his wingspan

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22
Q

Search incident to lawful arrest: scope of search at home

A

person and immediate surrounding area

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23
Q

Search incident to lawful arrest: car passenger compartment

A

may search car passenger compartment if

(1) arrestee has access at the time of arrest and poses risk to safety or tampering evidence; OR
(2) if it is reasonable that evidence of the offense of the arrest might be found

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24
Q

Warrantless search exception: consent

A

Must be voluntary,
Officer can obtain consent through deception ©False assertion of warrant

© cannot exceed scope.

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25
Q

Warrantless search exception: consent by 3rd party

A

Valid if actual/apparent authority

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26
Q

Warrantless search exception: Automobile

A

can search car if there is probable cause to believe that car contains contraband.

can search areas where one reasonably expects to find contraband. Contemporaneous not required

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27
Q

Warrantless search exception: Plain view

A

can seize if (a) legally on premises and (b) incriminating nature of the item is immediately apparent

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28
Q

Warrantless search exception: Administrative search

A

can search if reasonable suspicion

Airports, borders, public school, highly regulated industries, special needs searches, DUI roadblocks

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29
Q

Warrantless search exception: Stop & Frisk

A

During a lawful stop, officer can can

(a) pat-down (search) for weapons if reasonable belief D is armed and
(b) seize items that by plain feel is weapon/contraband

If initial stop is unlawful, but officer develops basis for a lawful arrest, seized evidence can be used at trial.

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30
Q

Protection of 5th Amendment applies to

A

(1) natural persons (not corporations),
(2) for testimonial evidence
(3) statements made to the government (no secret informants)

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31
Q

5th Amendment testimonial evidence

A

Testimonial evidence does not include physical evidence such as a blood or urine sample, Breathalyzer test result, handwriting exemplar, voice sample, or other evidence of physical characteristics.

includes testimony that would lead to other crimes © “use” immunity granted.

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32
Q

5th Amendment right against self-incrimination rule:

A

Statements made to the government as a result of custodial interrogation are inadmissible unless they are accompanied by procedural safeguards

Once a custodial interrogation begins, anything D says is inadmissible UNTIL D gets Miranda warning and D waives those rights

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33
Q

5th Amendment: Custodial

A

arrested or a reasonable person feels not free to leave

© Prisoner is not “in custody” if free to return to cell

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34
Q

5th Amendment: Interrogation

A

Police asks questions or engages in words or conduct that he knows or should know will elicit incriminating response

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35
Q

Exception to Miranda requirement:

A

(1) public safety at risk (e.g. suspect about bomb whereabouts).
(2) routine booking questions.
(3) police can use secret informant

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36
Q

Waiver of Miranda rights

A

can be given after Miranda is given.

must be knowing and voluntary. Silence insufficient.
© Uncoerced (voluntary) statements after silence: constitutes a waiver

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37
Q

Invocation of Miranda rights

A

Police must stop questioning if either

(1) D affirmatively invokes the right to silent; or
(2) D affirmatively invokes right to counsel.

© D waives when subsequently initiates contact.

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38
Q

Exclusion of confession/statements: voluntariness factors

A

Totality of circs—

(1) police conduct © deceit is ok
(2) D characteristics
(3) timing of statement

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39
Q

Exclusion of confession/statements: involuntariness factors

A

Involuntary if

(1) closely connected to unlawful arrest or
(2) given under a grant of immunity

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40
Q

Admissibility of involuntary statements

A

never admissible

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41
Q

Admissibility of voluntary statements, but in violation of Miranda

A

inadmissible as substantive evidence,

but admissible to impeach D

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42
Q

Evidence obtained as a result of involuntary statements

A

presumptively inadmissible

43
Q

Evidence obtained as a result of voluntary statements made but in violation of Miranda

A

admissible

44
Q

6th Amendment right to counsel

A

automatically applies to critical stages of the prosecution after formal proceedings have begun.

Critical: prelim/evidentiary hearing, indictment, formal charge (arraignment), post-charge lineup, post-charge interrogations, trial.
© pre-charge lineup, discretionary appeals, habeas hearing

45
Q

Scope of 6th Amendment right to counsel

A

Applies only to offenses D is actually charged with where jail sentence is actually imposed on D (not maximum penalty

46
Q

Remedy for violation of 6th Amendment right to counsel for critical stages

A

Statements made in violation of 6th are inadmissible.

© Can use to impeach

47
Q

6th Right to counsel for lineups

A

Right to counsel post-charge line-up

No right to counsel pre-charge line-up

48
Q

Due process in lineup identification

A

Violation of DP if procedure was (a) impermissibly suggestive and (b) there was a substantial likelihood of misidentification

49
Q

Remedy for violation of due process in lineup identification

A

Exclude improper identification from trial

© cure with in-court identification

50
Q

Exclusionary Rule

A

Evidence obtained in violation of 4, 5, or 6th amendment cannot be introduced at trial to prove D’s guilt

“Fruit of the Poisonous Tree”: exclude evidence obtained as a result of the initial violation

51
Q

Exception to exclusionary rule: Knock and announce

A

Police with lawful arrest warrant failed to knock/announce - can still use evidence

52
Q

Exception to exclusionary rule: inevitable discovery

A

Evidence would’ve been discovered anyway through lawful means. (e.g. can search someone’s house while warrant underway)

53
Q

Exception to exclusionary rule: Independent source

A

Relevant evidence is discovered from a source independent of the unconstitutional conduct

54
Q

Exception to exclusionary rule: Attenuation in the causal chain

A

intervening events or passage of time can remove the unconstitutional taint.

E.g., giving Miranda post facto, improper initial stop but subsequent discovery of valid warrant resulting in arrest/seize

© intentional circumvention of Miranda

55
Q

Exception to exclusionary rule: good faith

A

Officers acted in good faith reliance, on either

(1) existing law later decided unconstitutional; or
(2) a facially valid warrant later found to be defective

© can’t rely on warrant if it was obtained by fraud, or in reliance on an unacceptably bare-bone affidavit
© warrant faked by deliberate police misconduct

56
Q

Exception to exclusionary rule: isolated negligence

A

not suppressed if evidence is obtained due to isolated negligent conduct of law enforcement personnel

Miranda violation do not necessarily support “poisonous-tree” doctrine

© If police conduct is sufficiently deliberate, exclusionary rule applies

57
Q

Excessive Bail Clause

A

when bail is set, it cannot be excessive, i.e., set higher than an amount reasonably calculated to ensure the defendant’s presence at trial

58
Q

Bail availability

A

generally available unless D is a flight risk or poses a danger to the public

59
Q

Preliminary hearing requirement

Rule
Exception

A

Must have a preliminary hearing to determine whether probable cause exists to hold the defendant (i.e., a Gerstein hearing) within 48 hours of the defendant’s arrest

© not required if probable cause has already been determined through (1) a grand jury indictment or (2) an arrest warrant

60
Q

Speedy Trial Clause: when does the right attach

A

attaches at arrest or formal charge

61
Q

Speedy trial rights under DP:

A

Protection from pre-accusation delay that is intentional and prejudicial

62
Q

Speedy trial rights under 6th:

A

Protection from undue post-accusation delay that is intentional and prejudicial

63
Q

Speedy trial rights: 4 factors to consider

A
  1. length of the delay,
  2. reason for delay,
  3. whether D asserted his right to a speedy trial,
  4. risk of prejudice to D (like whether D had to stay in jail the whole time or was out on bail)
64
Q

Remedy for violation of right to speedy trial

A

Dismissal of charge with prejudice

65
Q

Prosecutorial disclosure duties

A

must turn over ∑

(a) all material exculpating evidence that tends to show that D is not guilty and
(b) evidence that could impeach the prosecution witnesses

Evidence is material if its disclosure would change the outcome of case. Brady materials include inconclusive lab reports, witness description that don’t match D, cooperation agreements with D, evidence within gov control

66
Q

Remedy for prosecutorial misconduct

A

New trial or reversal (harmless error) if a reasonable possibility of a different outcome

67
Q

Standard for determining defendant’s competence for trial

A

D is competent to stand trial if ∑

(a) D comprehends the nature of the case and
(b) can assist in his defense.

If competent for trial, D is competent to plead guilty and to waive the right to trial

68
Q

Right to jury trial for criminal case

A

for all serious offenses that authorize imprisonment > 6 months

© No constitutional right to decline jury trial in the face of government opposition (No constitutional right to a bench trial)

69
Q

criminal jury requirement

A

12 members (unless waived and approved) and unanimous.

© State: 6+ and unanimous

70
Q

Standard for for-cause removal of juror

A

Remove when potential juror reveals something that will prevent them from being impartial and deliberating fairly

71
Q

Standard for peremptory removal of juror

A

Remove for any reason except gender and race. © racially neutral explanation

72
Q

Confrontation Clause under 6th

A

Prior testimonial statement inadmissible unless

(a) witness unavailable and
(b) D had opportunity to cross-examine when the statement was made

Unavailable: witness invokes right against self-incrimination, etc

73
Q

Right to counsel at trial waiver

A

Waiver valid if (a) knowing and (b) intelligent and (c) voluntary

Knowing: aware of right to counsel

Intelligent: understand the nature of charges, ranges of punishment, recognizes disadvantages of self-representation

Voluntary: freely given and not being forced to choose between incompetent counsel and self-representation

74
Q

Right to choose own counsel at trial

A

D is entitled to have counsel of choice for trial if paid. Denial requires reversal

75
Q

Right to have effective counsel:

presumption
test

A

Effective assistance of counsel presumed

Strickland Test: ineffective if ∑

(a) performance fell below the objective standard of reasonable conduct that lawyers may engage in; AND
(b) performance prejudiced D, resulting in a reasonable probability of a different outcome if effective performance © if lawyer cost D an appeal, prejudice is presumed

objective standard of reasonableness; counsel’s mere inexperience, strategy, choice of appellate issues, or even failure to produce mitigating evidence have all been found insufficient to rise to the level of ineffective counsel

76
Q

Standard for overturning a conviction due to conflict of interest in counsel

A

To overturn a conviction based on a conflict of interest, must show

(a) actual conflict of interest existed; and
(b) conflict adversely affected the atty performance

© no need to show if atty made timely motion for separate counsel, and judge didnt’ do shit

77
Q

Life without parole for crimes committed while juvenile

A

unconstitutional

78
Q

Death penalty statute requirement 5

A

∑5 (a) not be unconstitutionally vague (a crime being “heinous or brutal” is vague)

(b) procedure for review is not arbitrary or discriminatory;
(c) permit jury consideration of mitigating factors
(d) jury had a chance to convict D of lesser included offense
(e) jury must find at least one aggravating factor.

Judge can impose DP alone or with jury’s advisement.

79
Q

Death penalty cannot be imposed on D if

A

(1) crime committed while under 18,
(2) insane or intellectually disabled at the time of execution; or
(3) for accomplice to felony murder, D did not kill, attempt to kill, or intend to kill V, or act with reckless disregard

80
Q

Apprendi Doctrine

Rule
Exception

A

Judge cannot enhance criminal sentence beyond statutory maximum based on facts not decided by the jury beyond a reasonable doubt © prior criminal conviction

If a fact can be used to increase a sentence beyond statutory maximum, that fact must be charged in an indictment, submitted to a jury, and established beyond a reasonable double.

81
Q

Apprendi Doctrine Limitation

A

does not apply to the determination of whether sentences for multiple offenses are to run concurrently or consecutively.

82
Q

Double Jeopardy (5th) protections:

A

(a) protection against prosecution for the same offense after acquittal;
(b) protection against prosecution for the same offense after conviction; and
(c) protection against multiple prosecutions for the same offense.

Once jeopardy attaches, D cannot be retried for same offense.

83
Q

Double jeopardy attaches when

A

attaches at trial, when

(1) jury is sworn in; or
(2) in bench trial, when first witness is sworn in.

84
Q

Double jeopardy: “same offense”

A

If each crime requires proof of an element that the other doesn’t, they are not the same offense (Blockburger test)

85
Q

Dual-sovereignty doctrine:

A

A state and the US or 2 different states can prosecute, try and punish same offense

86
Q

Civil penalty and criminal prosecution for the same offense:

A

Only repetitive criminal prosecutions prohibited, not civil actions

was tried in a criminal court, and is being retried in a civil court (and vice versa).

87
Q

Prosecution of a greater crime after D is sentenced with a lesser offense

Rule
Exceptions

A

DJ generally prohibits prosecution of a greater crime after D is sentenced with a lesser offense.

© newly discovered evidence/occurrence of a necessary subsequent event
© Guilty plea to a lesser offense

88
Q

Double jeopardy: newly discovered evidence

A

If newly discovered evidence, D can be tried for a greater offense even if jeopardy attached to a lesser offense

© No retrial even if new evidence, if D has been acquitted of the lesser offense

89
Q

Double jeopardy: guilty plea to a lesser offense

A

permits prosecution for a greater offense if the greater offense has been charged BEFORE the plea is entered

90
Q

Double jeopardy: Retrial for the same offense

Rule
Exceptions

A

6 Exceptions (D can be retried if):

(1) manifest necessity for declaring mistrials
(2) successful appeal on procedural grounds
(3) violation of plea agreement
(4) civil-crim
(5) dual-sovereignty
(6) grand jury

91
Q

Double jeopardy: manifest necessity

rule and exception

A

permits retrial for same offense if there was a manifest necessity for declaring mistrial– ∑2

(a) unforeseeable event made it highly necessary to terminate the proceeding; and
(b) judge exercised sound and rational discretion before declaring mistrial (e.g. allow both sides to speak, consider available alternatives).

Manifest necessity e.g., hung jury, defense counsel misconduct, juror death
Not manifest necessity: Judge’s family death

© Issue preclusion: Even when there is hung jury, prosecution can’t retry D on the greater offense if a jury acquits D of a lesser offense but deadlocks over the greater offense,.

92
Q

Double jeopardy: successful appeal on procedural ground

Rule
Exceptions

A

permits retrial if D successfully appeals the original crime on procedural ground

© If original conviction was reversed b/c insufficient evidence, no retrial.

© No original charge: If D was tried for a greater offense but convicted only of a lesser offense, D may not be retried on the originally charged crime even if the conviction is later reversed

93
Q

Double jeopardy: greater sentence upon reconviction

A

permitted

but may not be penalized

94
Q

Can compel someone to come to the station for fingerprinting?

A

Not without probable cause

95
Q

Miranda waiver burden of proof

A

Prosecution bears the burden of establishing that D’s waiver by a preponderance of the evidence

96
Q

Grand jury clause

A

All federal felony charges must be initiated by grand jury indictment, unless D waives

© GJ clause not incorporated into 14th; states can have a prelim hearing instead

97
Q

Right to confrontation includes

A

Right to face the accuser: Face-to-face not required e.g., children © still must be able to cross and see demeanor

Right to be present during jury selection unless D waived or D is excluded for good cause

98
Q

Writ of habeas corpus

definition
standing

A

Mechanism for a person to challenge the lawfulness of their detention

Standing: P must be incarcerated, or on bail, probation, or parole. Must exhaust all state remedies before filing a writ of habeas corpus in federal court

99
Q

Writ of habeas corpus

right to counsel

A

No right to counsel because the writ of habeas corpus is a civil challenge (not criminal) separate legal proceeding.

100
Q

Writ of habeas corpus

double jeopardy

A

If writ is granted, P can be retried for the same crime

101
Q

Double jeopardy: grand jury exception

A

Grand jury can retry D if another grand jury failed to return an indictment

102
Q

curtilage 4 factor test

A

four-factor test applies:

(i) PROXIMITY - the proximity of the area to the home;
(ii) ENCLOSURE - whether the area is included within an enclosure surrounding the home;
(iii) USE - the nature of the uses to which the area is put; and
(iv) STEPS - the steps taken by the resident to protect the area from observation by passersbys

103
Q

EP requirement for jury selection

A

Jury pool must represent a fair cross section of the community

can get conviction reversed even if D is not a member of the excluded racial group

2022 MBE (18 decks)

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