Crim Pro

Question 1

Under the 4th Amendment of the U.S. Constitution, a person is granted

Answer 1

protection from unlawful government searches and seizures. Acts by private individuals are NOT protected by the 4th Amendment.

Question 2

In order to challenge a search or seizure, the challenging party MUST have standing. To have standing, the challenger must have a

Answer 2

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).

Question 3

However, courts have held that people
DO NOT have a reasonable expectation of privacy in the following:

Answer 3

(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.

Question 4

For an arrest to be proper, the police officer MUST have

Answer 4

probable cause.

Question 5

Probable cause arises when the police officer

Answer 5

(1) has trustworthy facts or knowledge, (2) sufficient to warrant a reasonable person to believe, (3) that the person committed a crime.

Question 6

To arrest someone in public, ________ is all that is required. To arrest someone in their home, _____________ is required.

Answer 6

probable cause. a warrant (unless exigent circumstances exist).

Question 7

Request for Information, Stop and Inquire, & Stop and Frisk

A seizure occurs when

Answer 7

a reasonable person would have believed that he was not free to leave.

Question 8

Request for Information, Stop and Inquire, & Stop and Frisk

The police may make a request for information

Answer 8

anytime except on “whim or caprice.”

Question 9

Request for Information, Stop and Inquire, & Stop and Frisk

A police officer may stop and inquire if the police officer (Terry Stop)

Answer 9

(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.

Question 10

Request for Information, Stop and Inquire, & Stop and Frisk

A police officer may only stop and frisk a person if the police officer

Answer 10

(1) has reasonable articulable suspicion,

(2) that criminal activity is afoot, AND

(3) that the person has a weapon.

Question 11

Request for Information, Stop and Inquire, & Stop and Frisk

Under the plain feel doctrine, a police officer

Answer 11

may only seize items he or she reasonably believes is contraband or a weapon during the frisk.

Question 12

Request for Information, Stop and Inquire, & Stop and Frisk

Reasonable suspicion is defined as

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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.

Question 13

Warrant Requirement – a warrant is required for all searches and seizures unless an exception applies.

A valid search warrant requires:

Answer 13

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.

Question 14

EXCEPTIONS TO WARRANT REQUIREMENT

Exigent Circumstances

Answer 14

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.

Question 15

EXCEPTIONS TO WARRANT REQUIREMENT

Automobile Exception

Answer 15

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.

Question 16

EXCEPTIONS TO WARRANT REQUIREMENT

Search Incident to Arrest

Answer 16

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).

Question 17

EXCEPTIONS TO WARRANT REQUIREMENT

Consent

Answer 17

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]).

Question 18

EXCEPTIONS TO WARRANT REQUIREMENT

Inventory Search

Answer 18

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).

Question 19

EXCEPTIONS TO WARRANT REQUIREMENT

Stop & Frisk

Answer 19

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.

Question 20

EXCEPTIONS TO WARRANT REQUIREMENT

Plain View Doctrine – police may seize items if:

Answer 20

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.

Question 21

Confessions: 14th Amendment Due Process Clause

Under the 14th Amendment Due Process Clause, if a confession is the product of

Answer 21

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.

Question 22

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

Answer 22

be given Miranda warnings during a custodial interrogation.

Question 23

Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights

Miranda warnings inform suspects that:

Answer 23

(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.

Question 24

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________.

Answer 24

Exclusionary Rule.

Question 25

Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights

Miranda rights attach when there is a

Answer 25

custodial interrogation of a suspect. If a person is not subject to a custodial interrogation, no Miranda warnings need to be given.

Question 26

Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights

A person is in custody when they

Answer 26

reasonably believe they are not free to leave.

Question 27

Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights

A person is subject to interrogation when the police

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knew or should have known that their conduct was likely to elicit an incriminating response.

Question 28

Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights

Miranda rights only protect statements or acts that are

Answer 28

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.

Question 29

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

Answer 29

a concern for public safety OR the safety of the officer (i.e. to secure a weapon).

Question 30

Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights

To invoke a Miranda right, the statement MUST be

Answer 30

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.

Question 31

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

Answer 31

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.

Question 32

Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights

Once the right to counsel is invoked, the police must

Answer 32

stop questioning the suspect on ANY crime until the suspect has spoken with an attorney.

Question 33

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:

Answer 33

(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.

Question 34

Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights

A suspect may waive his Miranda rights. A valid waiver must be made:

Answer 34

(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).

Question 35

Confessions: 5th Amendment Privilege Against Self- Incrimination & Miranda Rights

When determining whether a confession overcame a person’s free will, courts consider

Answer 35

(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).

Question 36

Confessions: 6th Amendment Right to Counsel

Under the 6th Amendment of the U.S. Constitution, the accused has the right to counsel in all

Answer 36

criminal prosecutions (except State misdemeanor prosecutions that do not carry a risk of jail time).

Question 37

The 6th Amendment right to counsel attaches once

Answer 37

formal adversarial judicial proceedings have been commenced (i.e. formal charge, preliminary hearing, indictment, or arraignment).

Question 38

The 6th Amendment right to counsel is offense-specific. Thus, it only applies to

Answer 38

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.

Question 39

Confessions: 6th Amendment Right to Counsel

Once a suspect’s 6th Amendment right to counsel has attached, any attempts to

Answer 39

deliberately elicit statements from him in the absence of his attorney violate the 6th Amendment.

Question 40

Confessions: 6th Amendment Right to Counsel

The right to counsel may be waived. A valid waiver must be made:

Answer 40

(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).

Question 41

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:

Answer 41

(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.

Question 42

Line-Ups & Police-Arranged Identification Procedures

Due Process Clause (14th Amend.) is violated when a line-up is

Answer 42

(1) unnecessarily suggestive, (2) resulting in a substantial likelihood of misidentification.

− If violated, identification is inadmissible at trial.

Question 43

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:

Answer 43

1) based on a witness’s previous knowledge;
2) trustworthy; AND
3) based on a previous transaction (i.e. the crime).

Question 44

Line-Ups & Police-Arranged Identification Procedures

Right to Counsel (6th Amend.)

A person has the right to counsel at a

Answer 44

post-charge line-up.

− No right to counsel under 6th Amendment at a pre- charge line-up or photo-identification.

Question 45

Line-Ups & Police-Arranged Identification Procedures

Miranda Rights (5th Amend.)

Pre-trial identifications (line-ups, photo identifications), blood tests, fingerprints, and voice identifications are

Answer 45

NOT protected by the 5th Amendment.

− A suspect in custody CANNOT refuse to participate in a line-up.

Question 46

Exclusionary Rule & the Fruit of the Poisonous Tree Doctrine

Answer 46

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.

Question 47

Exclusionary Rule & the Fruit of the Poisonous Tree Doctrine

Exceptions – Exclusionary Rule DOES NOT apply if:

Answer 47

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

Question 48

Exclusionary Rule & the Fruit of the Poisonous Tree Doctrine

Limitations on Miranda Violations

Answer 48

▪ 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.

Question 49

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

Answer 49

greater than six months.

Question 50

Right to a Jury Trial

Any fact (other than a prior conviction) that increases the maximum penalty for a crime MUST be

Answer 50

submitted to a jury, and proven beyond a reasonable doubt by the prosecution.

Question 51

Right to a Jury Trial

A minimum of six jurors are required, and the verdict must be

Answer 51

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).

Question 52

Competence to Stand Trial

A defendant is competent to stand trial if he:

Answer 52

(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.

Question 53

Competence to Stand Trial

If there is sufficient doubt about a defendant’s competence, Due Process REQUIRES a trial court to

Answer 53

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.

Question 54

Double Jeopardy

The Double Jeopardy Clause of the 5th Amendment prevents

Answer 54

a defendant from being prosecuted twice for the same offense.

In a jury trial, jeopardy attaches once the jury is impaneled and sworn.

Question 55

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

Answer 55

each crime requires proof of a fact which the other does not.

Question 56

Double Jeopardy

the following exceptions exist where a defendant can be retried:

Answer 56

(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.

Question 57

Double Jeopardy

A final judgment on a lesser included offense bars prosecution of a

Answer 57

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.

Question 58

Burden of Proof and Persuasion
The prosecution must prove every element of a crime

Answer 58

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).

Question 59

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)

Answer 59

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.

Question 60

Burden of Proof and Persuasion
Sufficiency of Evidence:

A court MUST enter a Judgment of Acquittal if

Answer 60

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.

Question 61

Appeal and Error
Even if evidence is improperly admitted at trial, a guilty verdict will stand if the Prosecution can prove that

Answer 61

the error was harmless (that D would have been convicted anyway).

*Harmless Error Rule