Crim Pro Flashcards
Under the 4th Amendment of the U.S. Constitution, a person is granted
protection from unlawful government searches and seizures. Acts by private individuals are NOT protected by the 4th Amendment.
In order to challenge a search or seizure, the challenging party MUST have standing. To have standing, the challenger must have a
reasonable expectation of privacy regarding the item or place searched. Courts have held that individuals have a reasonable expectation of privacy in that of which they own or possess (includes overnight guest).
However, courts have held that people
DO NOT have a reasonable expectation of privacy in the following:
(1) a paint scrapping taken from one’s car; (2) a person’s bank account records; (3) anything visible from public airspace; (4) garbage left on the curb; (5) the sound of one’s voice; (6) odors coming from one’s property; (7) one’s handwriting; and (8) anything that can be seen in or across areas outside one’s home.
For an arrest to be proper, the police officer MUST have
probable cause.
Probable cause arises when the police officer
(1) has trustworthy facts or knowledge, (2) sufficient to warrant a reasonable person to believe, (3) that the person committed a crime.
To arrest someone in public, ________ is all that is required. To arrest someone in their home, _____________ is required.
probable cause. a warrant (unless exigent circumstances exist).
Request for Information, Stop and Inquire, & Stop and Frisk
A seizure occurs when
a reasonable person would have believed that he was not free to leave.
Request for Information, Stop and Inquire, & Stop and Frisk
The police may make a request for information
anytime except on “whim or caprice.”
Request for Information, Stop and Inquire, & Stop and Frisk
A police officer may stop and inquire if the police officer (Terry Stop)
(1) has reasonable articulable suspicion, (2) that criminal activity is afoot. A stop and inquire allows only a brief detention for questioning, after which the suspect must be released.
Request for Information, Stop and Inquire, & Stop and Frisk
A police officer may only stop and frisk a person if the police officer
(1) has reasonable articulable suspicion,
(2) that criminal activity is afoot, AND
(3) that the person has a weapon.
Request for Information, Stop and Inquire, & Stop and Frisk
Under the plain feel doctrine, a police officer
may only seize items he or she reasonably believes is contraband or a weapon during the frisk.
Request for Information, Stop and Inquire, & Stop and Frisk
Reasonable suspicion is defined as
the quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe that criminal activity is at hand. Courts use a sliding scale based on the particular factual circumstances to determine whether reasonable suspicion was present.
Warrant Requirement – a warrant is required for all searches and seizures unless an exception applies.
A valid search warrant requires:
1) Probable cause – reliable info that evidence of illegality will be found;
2) It must state with particularity the place and items to be searched/seized; AND
3) Be issued by a neutral and detached magistrate.
Evidence obtained without a valid warrant is excluded UNLESS it falls under an exception.
EXCEPTIONS TO WARRANT REQUIREMENT
Exigent Circumstances
Exigent circumstances exist if:
(a) the evidence is evanescent (the evidence would dissipate or disappear in the time it would take to obtain a warrant);
(b) it’s necessary to prevent the imminent destruction of evidence;
(c) the police are in hot pursuit of a felon and the evidence is in plain view; OR
(d) the emergency aid exception applies – to render emergency assistance to an injured person or to protect a person from imminent injury.
examples: A woman tells an officer a man is inside the building and is going to blow it up, officer can go into the building and search without a warrant.
if an officer believes a suspect dropped a gun where children might pick it up, he can go search for it without a warrant.
Can kick open doors if they hear suspects flushing drugs.
EXCEPTIONS TO WARRANT REQUIREMENT
Automobile Exception
allows a warrantless search if probable cause exists that contraband/evidence of a crime will be found in the vehicle.
− Police can search entire vehicle, PLUS packages, luggage, containers that may reasonably contain the items for which there is probable cause.
− In order to search after a traffic stop→police need probable cause prior to the search.
EXCEPTIONS TO WARRANT REQUIREMENT
Search Incident to Arrest
police may search a suspect’s person + “wingspan”.
− If arrested in an automobile, wingspan includes the passenger’s compartment and any containers found in the car (if reason to believe it contains contraband).
EXCEPTIONS TO WARRANT REQUIREMENT
Consent
must be given freely, voluntarily, and intelligently.
− A third-person with authority MAY consent.
− If 2 or more people share authority → any one of them may consent, but police cannot search private areas (that only the non-consenting person has authority to give [i.e. private bedroom]).
EXCEPTIONS TO WARRANT REQUIREMENT
Inventory Search
allows a warrantless search when a person is incarcerated OR for an impounded vehicle.
− Inventory search must be: (1) reasonable; AND (2) conducted pursuant to established police agency procedures (that are designed to meet the legitimate objectives of the search while limiting the discretion of the officer in the field).
EXCEPTIONS TO WARRANT REQUIREMENT
Stop & Frisk
police must have (1) a reasonable articulable suspicion, (2) that criminal activity is afoot, and (3) that the person has a weapon.
− Plain Feel Doctrine→during the frisk, police may only seize items reasonably believed to be contraband or a weapon.
EXCEPTIONS TO WARRANT REQUIREMENT
Plain View Doctrine – police may seize items if:
1) observed in plain view (with any of the 5 senses),
2) from a place lawfully permitted to be, AND
3) probable cause exists to believe the items are evidence of a crime or contraband.
Confessions: 14th Amendment Due Process Clause
Under the 14th Amendment Due Process Clause, if a confession is the product of
police coercion that overbears the suspect’s free will, then the confession is inadmissible.
The police may use coercive conduct (i.e. lying) UNLESS the coercion overcomes the defendant’s free will.
Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights
Under the 5th Amendment Privilege Against Self-Incrimination, a person has a right to not incriminate oneself and MUST
be given Miranda warnings during a custodial interrogation.
Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights
Miranda warnings inform suspects that:
(1) they have the right to remain silent;
(2) anything they say can be used against them in court;
(3) they have the right to talk to an attorney and have one present when they are questioned; AND
(4) if they cannot afford an attorney, an attorney will be provided to them.
Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights
A defendant/suspect’s statements made in violation of his Miranda rights are subject to the________.
Exclusionary Rule.
Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights
Miranda rights attach when there is a
custodial interrogation of a suspect. If a person is not subject to a custodial interrogation, no Miranda warnings need to be given.
Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights
A person is in custody when they
reasonably believe they are not free to leave.
Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights
A person is subject to interrogation when the police
knew or should have known that their conduct was likely to elicit an incriminating response.
Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights
Miranda rights only protect statements or acts that are
communicative or testimonial in nature.
In order to be testimonial, an accused’s communication must (explicitly or implicitly) relate to a factual assertion or disclose information. Crying is NOT considered a testimonial communication. Additionally, Miranda rights DO NOT apply to any spontaneous statements made by a person.
Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights
Under the Public Safety Exception, limited interrogation without Miranda warnings IS ALLOWED when police officers ask questions reasonably prompted by
a concern for public safety OR the safety of the officer (i.e. to secure a weapon).
Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights
To invoke a Miranda right, the statement MUST be
clear and unambiguous. For example, merely stating “I think I need a lawyer” or “maybe I should talk to a lawyer” is insufficient. The police have no obligation to stop questioning a suspect if the request is not clear and unambiguous.
Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights
Once the right to remain silent is invoked, the police may later question the suspect if they first
scrupulously honor his right to remain silent.
Additionally, if the right is invoked, the defendant’s silence CANNOT be commented on by the prosecution or be used to incriminate him at trial.
Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights
Once the right to counsel is invoked, the police must
stop questioning the suspect on ANY crime until the suspect has spoken with an attorney.
Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights
However, after the right to counsel has been invoked, a custodial interrogation may be reinitiated if:
(1) the suspect has been re-advised of his Miranda rights;
(2) has provided a knowing and voluntary waiver; AND
(3) either (a) counsel is present, (b) the suspect initiates the communication, or (c) at least 14 days have passed since the suspect was released from custody.
Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights
A suspect may waive his Miranda rights. A valid waiver must be made:
(1) voluntarily (it is the product of the defendant’s free will); AND
(2) knowingly and intelligently (the defendant must understand the nature of the right being waived and the consequences for waiving it).
Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights
When determining whether a confession overcame a person’s free will, courts consider
(1) the characteristics of the interrogation (i.e. length of the interrogation and police tactics used); AND (2) the characteristics of the individual (i.e. age and experience).
Confessions: 6th Amendment Right to Counsel
Under the 6th Amendment of the U.S. Constitution, the accused has the right to counsel in all
criminal prosecutions (except State misdemeanor prosecutions that do not carry a risk of jail time).
The 6th Amendment right to counsel attaches once
formal adversarial judicial proceedings have been commenced (i.e. formal charge, preliminary hearing, indictment, or arraignment).
The 6th Amendment right to counsel is offense-specific. Thus, it only applies to
the offenses the defendant has formally been charged with, and DOES NOT prevent the police from questioning the defendant about unrelated offenses without an attorney.
Confessions: 6th Amendment Right to Counsel
Once a suspect’s 6th Amendment right to counsel has attached, any attempts to
deliberately elicit statements from him in the absence of his attorney violate the 6th Amendment.
Confessions: 6th Amendment Right to Counsel
The right to counsel may be waived. A valid waiver must be made:
(1) voluntarily (it is the product of the defendant’s free will); AND (2) knowingly and intelligently (the defendant must understand the nature of the right being waived and the consequences for waiving it).
Right to Counsel & Effective Assistance of Counsel at Trial
The 6th Amendment also includes the right to have effective assistance of counsel, which includes the effective aid in the preparation and trial of the case. In order to prove ineffective assistance of counsel in violation of the Sixth Amendment, the defendant must show that:
(1) his counsel’s performance was deficient; AND
(2) but for the counsel’s errors, the result of the trial would have been different.
If ineffective assistance of counsel is shown at trial, then the verdict must be reversed and the defendant is entitled to a new trial.
Line-Ups & Police-Arranged Identification Procedures
Due Process Clause (14th Amend.) is violated when a line-up is
(1) unnecessarily suggestive, (2) resulting in a substantial likelihood of misidentification.
− If violated, identification is inadmissible at trial.
Line-Ups & Police-Arranged Identification Procedures
Independent Source Rule
An in-court identification is admissible at trial (even if a line-up is tainted) when it’s:
1) based on a witness’s previous knowledge;
2) trustworthy; AND
3) based on a previous transaction (i.e. the crime).
Line-Ups & Police-Arranged Identification Procedures
Right to Counsel (6th Amend.)
A person has the right to counsel at a
post-charge line-up.
− No right to counsel under 6th Amendment at a pre- charge line-up or photo-identification.
Line-Ups & Police-Arranged Identification Procedures
Miranda Rights (5th Amend.)
Pre-trial identifications (line-ups, photo identifications), blood tests, fingerprints, and voice identifications are
NOT protected by the 5th Amendment.
− A suspect in custody CANNOT refuse to participate in a line-up.
Exclusionary Rule & the Fruit of the Poisonous Tree Doctrine
Evidence obtained in violation of D’s 4th, 5th, or 6th Amendment rights is inadmissible at trial.
− All derivative evidence is also inadmissible under the fruit of poisonous tree doctrine.
Exclusionary Rule & the Fruit of the Poisonous Tree Doctrine
Exceptions – Exclusionary Rule DOES NOT apply if:
a) Police had an independent source for the secondary evidence;
b) Discovery of evidence was inevitable regardless of the illegality;
c) Through the attenuation doctrine (when D’s free will is restored through passage of time or intervening events); OR
d) Police relied in good faith on a defective warrant.
e) Knock and Announce: Police are required to knock and announce, but If they fail to do so, and discover evidence, that evidence does not have to be
Exclusionary Rule & the Fruit of the Poisonous Tree Doctrine
Limitations on Miranda Violations
▪ Limitation #1: Failure to give Miranda warnings DOES NOT require suppression of the physical evidence found because of the statements (as long as the statements are voluntary).
▪ Limitation #2: Subsequent statements made after Miranda warnings are admissible UNLESS a non-Mirandized previous statement was obtained through the use of inherently coercive police tactics offensive to Due Process.
▪ Limitation #3: Statements obtained in violation of a suspect’s Miranda rights are inadmissible in the Prosecution’s case-in-chief. BUT, they may be used to impeach a defendant on cross examination.
Right to a Jury Trial
The 6th Amendment, as applied to the states through the 14th Amendment, guarantees a criminal defendant the right to a jury trial for offenses where imprisonment may be
greater than six months.
Right to a Jury Trial
Any fact (other than a prior conviction) that increases the maximum penalty for a crime MUST be
submitted to a jury, and proven beyond a reasonable doubt by the prosecution.
Right to a Jury Trial
A minimum of six jurors are required, and the verdict must be
unanimous.
However, the Supreme Court has upheld non-unanimous verdicts when the jury panel was much greater than six jurors (i.e. a 12-person jury panel).
Competence to Stand Trial
A defendant is competent to stand trial if he:
(1) has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding (he must be able to assist in preparing his defense); AND
(2) has a rational and factual understanding of the proceedings against him.
A criminal defendant cannot be tried if he is deemed incompetent, but competence may be reassessed at a later date if his mental condition improves.
Competence to Stand Trial
If there is sufficient doubt about a defendant’s competence, Due Process REQUIRES a trial court to
conduct a competency hearing, either on motion or sua sponte. This obligation exists throughout the trial. After sufficient doubt as to competency arises, the burden of evaluating competency is placed upon the court and court-appointed experts.
Double Jeopardy
The Double Jeopardy Clause of the 5th Amendment prevents
a defendant from being prosecuted twice for the same offense.
In a jury trial, jeopardy attaches once the jury is impaneled and sworn.
Double Jeopardy
Double jeopardy will bar separate prosecutions of a defendant arising out of the “same offense”. Under the Blockburger test, two distinct crimes DO NOT constitute the “same offense” for double jeopardy purposes if
each crime requires proof of a fact which the other does not.
Double Jeopardy
the following exceptions exist where a defendant can be retried:
(1) when the first trial ends in a hung jury;
(2) when manifest necessity exists to end the original trial (an unforeseeable circumstance that makes it impossible to get a fair result; e.g. juror misconduct, unavailable essential witness, attorney becoming ill); OR
(3) when the original trial is terminated at the defendant’s request and it’s not for an acquittal on the merits.
Double Jeopardy
A final judgment on a lesser included offense bars prosecution of a
greater offense on the same facts UNLESS the greater offense: (a) did not exist at the time of trial; OR (b) was not discovered despite due diligence.
Burden of Proof and Persuasion
The prosecution must prove every element of a crime
beyond a reasonable doubt. The burden of proof CANNOT be shifted to the defendant under the Due Process Clause.
However, a state may impose that affirmative defenses be proved by the defendant (i.e. insanity or self- defense).
Burden of Proof and Persuasion
A jury instruction that creates a rebuttable presumption for an element of the crime (one that may be disputed or overcome by additional evidence)
violates Due Process Clause if it shifts the burden of proof to the defendant.
A jury instruction that creates an irrebuttable presumption for an element of the crime (one that cannot be disputed or overcome by additional evidence) is a per se violation of the Due Process Clause.
Burden of Proof and Persuasion
Sufficiency of Evidence:
A court MUST enter a Judgment of Acquittal if
the evidence is insufficient to sustain a conviction (when a reasonable jury would not find that each element was proven beyond a reasonable doubt).
− D may move for a Judgment of Acquittal either: (a) at the close of its case-in-chief; OR (b) after the close of all evidence.
Appeal and Error
Even if evidence is improperly admitted at trial, a guilty verdict will stand if the Prosecution can prove that
the error was harmless (that D would have been convicted anyway).
*Harmless Error Rule
