Crim Pro

Question 1

Amendments

Answer 1

4th amend: unreasonable search and seizure

5th amend : grand jury for all felony cases, no self incrimination, no double jeopardy, due process required in every criminal case

6th amend: speedy and public trial impartial jury, informed of pending charges, confrontation/cross examination, right to subpoena witness on own bhalf, right to effective asistance of counsel

8th amend: no excessive bail/fines and cruel and unusual punishment

14th amend : state cant deprive any person of life liberty or prop without due process of law

Question 2

seizure

Answer 2

reasonable person would not feel free to decline officer’s request s or terminant encounter

Question 3

arrest

Answer 3

police take person into custody against their will for prosecution or interrogation

Question 4

probable cause

Answer 4

Trustworthy 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
Based on totality of circumstances

Police must have full PC for arrest to bring a suspect to station for questioning or fingerprinting against person’s will

unlawful arrest by itsellf has no impact on any subsequent criminal prosecution

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

Question 5

terry stop

Answer 5

must be temporary (brief) and last no longer than is necessary to effectuate the purpose of the stop .

investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time

Burden on state to show the seizure was sufficiently limited in scope and duration

Before officers rely upon information from an unknown source to justify a terry stop, they must provide some independent corroboration of the anonymous tip

Question 6

automobile stops ( decision, rule, roadblocks, passengers exit, dog sniffing)

Answer 6

decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. An officer’s subjective intent (motive) will not invalidate the stop.

Informational roadblocks
Must stop cars on basis of neutral,articulable standard
Must be designed to serve purpose closely related to problem pertaining to cars and their mobility

Exit/ Search of Vehicle Passengers
w/o any showing the particular suspect may be armed, an officer may require th driver and all passengers to exit the vehicle for their own safety

In a traffic stop setting, the first terry condition- a lawful investigatory stop- is met whenever it islawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation
To justify the pat down of the passenger or driver during a traffic stop, the police must have RS that the person subjected to the frisk is armed and dangerous

Dog sniffing
Traffic stops can be initiated based on probable cause or reasonable suspicion
If based on reasonable suspicion, the length of the traffic stop cannot exceed the amount of time necessary to complete the initial purpose of the stop
While driver’s license checks, warrant checks, and inspections of registration/proof of insurance are permitted during the stop, an officer may not conduct an on-scene investigation into other crimes
Entering an individual’s front porch with a trained drug detection dog to conduct a search constitutes a 4th amendment search

Question 7

governmental conduct by

Answer 7

Police officers
Gov agents
Private individuals acting at direction of police
When acting under orders or after a request by a gov’t agent or
When acting pursuant to a law that requires or strongly

Question 8

standing for 4th amendment

Answer 8

only person whose rights have been violated

Standing to object= reasonable expectation of privacy with respect to place searched or item seized

When person has reasonable expectation of privacy
Person owned or had right to possess place searched
Place searched is person’s home
Person is overnight guest of owner

Traffic stops seize everyone in the vehicle, not just the driver. Therefore, a passenger of a stopped vehicle has standing to challenge a traffic stop because their liberty interests are infringer when the vehicle they are riding in is detained

Vehicle passengers may be subject to a pat down if there is a reasonable suspicion to believe the person is armed and dangerous

Law enforcement must secure a warrant to search the phone even when it is seized incident to arrest

Question 9

Things held out in public

Answer 9

no expectation of privacy
police can’t use sense enhancing teh that is not in general public use to obtain info from inside suspect’s home that could not otherwise be obtained w/o physical intrusion violates expectation of privacy

Question 10

Warrant

Answer 10

Core requirements for a facially valid search warrant
Probable cause
Particularity
Warrant must describe with particularity place to be searched and items to be seized

warrant may be anticipatory
Magistrate who issues the warrant must be neutral and detached

Warrant execution
Only police may execute warrant
No 3rd parties unless identifying stolen prop
Violation of knock and announce rule will not result in suppression of evidence

Search of persons found on searched premises
Warrant to search for contraband authorizes the police to detain occupants of premises during a search
but search warrant does not authorize police to search persons found on premises who were not named in the warrant

Question 11

knock and announce

Answer 11

Common law rule: law enforcement is not permitted to enter a home by force to execute a warrant, unless they knock announce their purpose for entering and request admittance. They may enter the home by force if they are not granted entry

Wilson: law enforcement may enter w/o knocking and announcing their presence when there is a treat of physical violence or where they have reason to believe that evidence would likely be destroyed if advance notice were given

Question 12

exceptions to the warrant requirement ( SPACES)

Answer 12

Search incident to a lawful arrest
Plain view
Automobile
Consent
Exigent Circumstances
Special Needs

Question 13

search incident to arrest ( protective sweeps, passenger compartments, tech searches, inventory)

Answer 13

Police can search after valid arrest
Search must be contemporaneous in time and place with arrest
If an arrest is unconstitutional, any search incident to arrest is also unconstitutional
The person and areas w/i person’s wingspan can be search
area within the suspect’s immediate control ( the area within which they might gain possession of a weapon or destructible evidence)

Law enforcement may not search the entire house or rooms other than that in which the arrest occurs without a warrant

Police may search passenger compartment incident to arrest if
Arrestee is unsecured and may gain access to vehicle or
Police reasonably believe that evidence of offense for which person was arrested may be found in the vehicle

Protective sweep
when making an arrest, police may make a protective sweep for their own protection without a search warrant
Requires a belief that the area to be swept harbors an individual posing a danger to those on the arrest scene
Protectove sweep lmited to the spaces where a person may be found
It is not a full search

Technological searches
Ct will balance degree to which the search incident to arrest intrudes upon a person’s privacy against the degree to which search is needed to promote legitimate gov interests
Warrantless breath test permitted but not blood test
Physical attributes of cell phone may be searched but not data

Search incident to incarceration or impoundment
Police may make an inventory search of the arrestee’s belongings pursuant to est dept procedure
Police may make an inventory search of an impound vehicle

Question 14

automobile exception

Answer 14

If police have probable cause to believe vehicle contains fruits, instrumentalities, or evidence of a crime they may search entire vehicle and any container that might reasonably contain the item
Includes searching the passenger’s belongings found in the car that are capable of concealing the object of the search
The automobile exception does not justify a body search of the passenger

Scope
When LE has probable cause to believe the vehicle generally contains contraband, they may search the entire vehicle including the trunk and any containers ( anywhere the contraband could reasonably be found
When LE has probable cause to believe that only a single container in the vehicle has contraband they may only search the area the container is located not search the entire vehicle

Automobile exception doesnt permit a search of a vehicle that is located in the curtilage of a home
Applies even if officer has PC to search under the exception
Probable cause necessary to justify search of car can arise after car is stopped

Question 15

plain view

Answer 15

permits the warrantless seizure of evidence that is in the plain view of a police officer lawfully present at the scene

3 requirements
The object is observed from a lawful vantage point
The incriminating character of the item must be immediately apparent to the officer (officer must recognize the item as contraband or a fruit instrumentality or evidence of a crime probable cause standard
The officer must have a lawful right of access to the object itself

Question 16

consent

Answer 16

Requirements
Consent must be provided by a person with actual or apparent authority; and
Consent must be voluntary

Initial interaction needs to be legal in order to get consent
Consent has been deemed involuntary by the court when:
Police secure consent by falsely claiming they have a warrant

If the consenting party fails to explicitly limit the scope of consent, it is determined by the objective rasonableness test
Objective reasonableness test- what would the average person have understood the consent to include
Doesn’t include locked containers, but regular containers must specifically limit not to search

Who has authority to consent
Actual owners
Joint tenants and users with common authority over the premises or other prop and
Occupant can’t give valid consent when co-occupant is present and objects
If co-occupant is removed for unrelated reason, police may act on consent of remainig occupant
if a suspect is absent, the co tenant can consent to a search of shared areas of the home
an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason

Those with apparent authority to consent, but not actual authority
Note: the test for apparent authority is objective reasonableness.
If it reasonable for the police to believe the consenting individual has authority , the search will be valid

Question 17

exigent circumstances

Answer 17

Evanescent evidence
Evidence that might disappear quickly if police took time to get a warrant
Officers need to get a warrant before taking a blood sample for a DUI arrest (if practical to do so)

Hot pursuit
Police in hot pursuit of fleeing felon may make warrantless search and seizure and may pursue suspect into private dwelling
If fleeing person is suspected of a misdemeanor their flight does not always justify a warrantless entry into a home
If the police are not within 15 min behind the fleeing felon it is not a hot pursuit that falls under the exception

Emergency aid/ community care taker exception
Police may enter premises w/o warrant if officer faces emergency that threatens health or safety

Question 18

special needs ( stop and frisks, administrative inspections, public school searches)

Answer 18

Stop and frisk
Brief detention for the purpose of investigating suspicious conduct
Terry frisk= a patdown of the outer clothing and body to check for weapons
Standards
May stop a person w/o pc for arrest if they have an articulable and reasonable suspicion of criminal activity
Scope
Scope of frisks is limited to patdown of outer clothing, unless officer has specific info that a wapon is hidden in a particular area of suspect’s clothing
Admissibility of evidence
Officer may reach into suspects clothing and seize any item that officer reasonably believes based on its plain feel is a weapon or contraband and such items are admissible

Administrative inspections and searches
Searches of airline passengers prior to boarding
Drug test of public school children involved in extracurricular activities

Public school searches
Warrant or PC is not required for public school officials to search public school students or their possession only reasonable grounds for search are necessary
Held reasonable if
Offers moderate chance of finding evidence of wrongdoing
measure s adopted to carry out search are reasonably related to the objectives of the search and
Search is not excessively intrusive in light of age and sex of student and nature of the infraction

Question 19

wiretapping and eavesdropping

Answer 19

Unreliable ear: speaker assumes risk other person consents to gov monitoring or is an informer

Uninvited ear: speaker has no 4th amendment claim if they make no attempt to keep conversation private

Question 20

method obtaining evidence that shocks the conscience

Answer 20

inadmissible

Question 21

voluntary confessions

Answer 21

voluntariness determined by totality of circumstances
Harmless error test applies- conviction need not be overturned if overwhelming evidence of guilt

Question 22

6th amendment right to counsel (attaches, violation, waiver, remedy, impeachment)

Answer 22

Applies to all critical stages of prosecution after judicial proceedings have begun

6th amendment right to counsel attaches/ begins when a prosecution is commenced

commencement= the initiation of adversary judicial criminal proceedings- whether by way of formal charge, preliminary hearing indictment, information or arraignment

Once the right to counsel has attached, the accused is entitled to the presence of counsel during any critical stage of the post attachment proceedings

is offense specific

To prove a violation of the 6th amendment right to counsel the D must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks

Waiver of right to counsel must be knowing and voluntary

Remedy
At nontrial proceedings the harmless error rule applies to deprivations of counsel
D entitled to a lawyer at trial failure to provide counsel results in automatic reversal of the conviction even w/o showing of specific unfairness in proceeding

Impeachment
Violation of a D’s 6th amendment right to counsel may be used to impeach the D’s contrary trial testimony

Question 23

5th amendment (miranda warnings, waiver, violation)

Answer 23

privilege against compelled self- incrimination

Miranda warnings
Required when person n custodial interrogation
Necessary only if detainee knows thay are being interrogated by gov agent

Inapplicable at grand jury hearing
Miranda requirements do not apply to an uncharged witness testifting before a grand jury, even if the witness was compelled by subpoena to be there

Two step process for determining custody
Whether reasonable person would feel free to terminate interrogation and leave
Whether environment present same inherent coercive pressures as the type of station house questioning at issue in miranda
Interrogation requirement
Interrogation: any words or conduct by police that they should know would likely elicit an incriminating response

Miranda warnings are not required before a spontaneous statements
: Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent
Functional equivalent= any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect

Other techniques deemed NOT to be interrogation:
Discussing the possibility that the investigation may have to involve the suspect’s girlfriend and family
Explaining the extent of the incriminating evidence against the defendant
Showing the defendant a surveillance photo of himself committing the crime

Waiver vs. nonwaiver
invocation of the right to remain silent must be unambiguous
if a suspect invokes his right to counsel, any subsequent statement (even with a miranda waiver) is presumed to be involuntary unless the suspect initiates the contact
If there is no break in custody, a fresh set of miranda warnings is insufficient and the subsequent statement will be suppressed
All questioning must cease until counsel has been provided unless detainee
Waives counsel or
Released back to normal life and 14 days have passed since release

Effect of miranda violation
Evidence generally inadmissible
Statements may be used to impeach D’s trial testimony but not used as evidence of guilt
Nontestimonial fruits of an unwarned confession
Detainee gives police info that leads to nontestimonial evidence= evidence suppressed if failure to give miranda warnings was purposeful but likely admitted if failure not purposeful

Question 24

public safety exception

Answer 24

No miranda warning when reasonably prompted by concern for public safety ( locating hidden gun that could have caused injury to innocent persons

Question 25

pretrial identification

Answer 25

Accused does not have a right to counsel at photo identifications or when police take physical evidence
D can attack an identification as denying due process if the ID is unnecesarily suggestive and there is substantial likelihood of misidentification
Remedy for unconstitutional ID is to exclude it

Independent source
Factors to consider in showing an independent source include
The witness prior opportunity to observe the alleged criminal act
The existence of any dicrepancy between any pre-lineup ecription and the defendant’s actual description
Any identification prior to the lineup
Failure to identify the defendant on a prior occasion
Lapse of time between the alleged ct and the lineup identification

Question 26

exclusionary rule

Answer 26

whereunder evidence obtained in violation of the 4th amendment is ordinarily inadmissible in a criminal trial

Exclusionary rule: unconstitutionally obtained evidence exclude at trial

Fruit of the poisonous tree: evidence obtained from exploitation of unconstitutionally obtained evidence

only precludes evidence from being introduced during criminal trials
Admitted in civil and during pre/post trial proceedings grand jury preliminary hearings, parole revocation hearing and sentencing

enforcing
Gov bears the burden of est the admissibility by a perpondeance of the evidence

Question 27

exceptions to fruit of poisonous tree doctrine

Answer 27

Fruits derived from statements in violation of miranda
Evidence obtained from independent source
Attenuation: casual link between police misconduct and evidence is broken
D’s intervening act of free will
Inevitable discovery
The prosecution can show that the police would have discovered the evidence whether or not the police acted unconstitutionally
Violation of knock and announce rule

Question 28

three I’s that make evidence admissible

Answer 28

Independent source
Intervening act of free will
Inevitable discovery

Question 29

limitation on exclusionary rules

Answer 29

Inapplicable in civil and grand jury, internal agency rules, parole revocation proceeding

Good faith reliance on defective warrant
Exceptions
Affidavit so lacking in probable cause no reasonable officer would rely on it
Affidavit so lacking in particularity no reasonable officer would rely on it
Officer or prosecutor lied to or misled magistrate
Magistrate is biased and wholly abandoned neutrality

Use of excluded evidence for impeachment purposes
Voluntary confession taken in violation of miranda admissible for impeachment

Question 30

harmless error test

Answer 30

If illegal evidence admitted, conviction should be overturned on appeal unless gov can show beyond a reasonable doubt that error was harmless

Question 31

pretrial hearing

Answer 31

If PC has not already been determined and there are significant constraints on an arrestee’s liberty, a preliminary hearing to determine probable cause must be held within a reasonable time - 48 hours

Question 32

grand jury proceedings

Answer 32

Conducted in secret
D has no right to notice
No right to counsel
No right to have evidence excluded
No right to challenge subpoena on 4th amendment grounds
Conviction from indictment issued by grand jury from which minority group excluded will be reversed

Question 33

right to speedy trial

Answer 33

Factors
Length of delay
Reason for delay
Whether D asserted right
Prejudice to D

Right attaches
When D arrested or charged
When speedy trial raised
Check timing- arrest or charged?

Question 34

duty to disclose exculpatory evidence

Answer 34

Brady material
Failure to disclose material exculpatory evidence is grounds for reversing conviction if
Evidence is favorable o D and
Prejudice has resulted

Question 35

jury verdicts

Answer 35

At least 6
Must be unanimous
Fair cross section

Peremptory challenges
Generally may use perremptory challenge for any reason
Cannot challenge jurors solely on basis of race or gender

Challenges for cause
Juror should be excluded for cause if juror’s views would prevent or substantially impair performance of duties
Right to question of racial bias when
In capital cases involving an interracial crime, prospective jurors must be informed of the race of the victim and questioned on the issue of racial bias during voir dire , if race tied up in crim
Note: if the judge fails to include the racial bias question, the defendant cannot complain about the omission unles he/she specifically requested the question
Questioning about death penalty

Question 36

ineffective assistance

Answer 36

Deficient performance by counsel
The objective reasonable standard applies
Was counsel’s assistance reasonable considering all the circumstances
Judicial scrutiny of counsel’s performance must be highly deferential, giving the appropriate deference to trial counsel’s choices
The ct must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed at the time of counsel’s conduct

required to prove
Counsel made errors so serious that counsel was not functioning as counsel guaranteed the D by the 6 amendment
But for the deficiency, result of proceeding would have been different

A reasonable probability is a probability sufficient to undermine confidence in the outcome

Convictions: whether there is reasonable probability, that absent the errors, the factfinder would have had a reasonable doubt respecting guilt

Death sentence: whether there is a reasonable probability that, absent the error, the sentencing ntity would have concluded that the balance of aggravating and mitigating circumstances did not warrant death
Counsels errors were so serious as to deprive the D of a fair trial, a trial whose result is reliable

Question 37

confrontation clause

Answer 37

Doesnt require face- face
Can insolate child from trauma
Can remove disruptive D

Confessing D takes stand and is subject to cross examination, or
Confession used to rebut D’s claim that confession was obtained coercively

Prior testimonial evidence
Not admitted unless
D unavailable and
D had opportunity to cross-examine declarant at

Co defendant’s confession may be admitted if
All portions referring to other D can be eliminated

Question 38

guilty plea

Answer 38

Must be voluntary and intelligent
the record must show the judge confirmed with the D his understanding of the rights waived by pleading guilty ( including the 5th amendment privilege against self-incrimination, right to a jury trial and the right to confront witnesses) and that the guilty plea is voluntary. Mere silence is insufficient

Reasons to set aside plea
Involuntariness
Lack of jurisdiction
Ineffective assistance of counsel
Failure to keep plea bargain

Plea bargain enforced against prosecutor and D but not judge, who does not have to accept plea

Not involuntary just because prosecutor say would charge with a more serious crime

Collateral effects of guilty
Can be used in other proceeding such as sentencing enhancement

Question 39

death penalty

Answer 39

Must be imposed under statutory scheme that gives jury reasonable discretion, full info, and guidance

No death penalty for rape

Cannot execute prisoner who is insane at time of execution even if sane at time crime was committed

No death penalty for person who is intellectually disabled

No minors, under age of 18 at time commit crime

Question 40

habeas corpus proceeding

Answer 40

No right to appt counsel
Petitioner has burden of proof to show unlawful detention by preponderance of evidence
Civil case
D must be in custody

Question 41

double jeopardy ( attaches, exceptions, cummulative punishments, new evidence, separate sovereigns)

Answer 41

Person may not be retried for same offense once jeopardy has attached

When jeopardy attaches
Jury trial:empaneling and swearing of jury
Bench trial: when first witness is sworn

Exceptions permitting retrial
First trial ends in hung jury
Manifest necessity to abort first trial (medical emergency )
D successfully appealed conviction (unless ground for reversal was insufficient evidence)
May not be tried for a greater offense than that for which they were cocnvicted
D breached plea bargain
D could have been tried for multiple charges in single trial but chose to have offenses tried separately

Two crimes are the same offense unless each crime requires proof of additional element that other does not

Cumulative punishments for offenses
Leeser included offenses
Attachment of jeopardy for greater offense bars retrial for lesser included offense
Attachment of jeopardy for lesser included offense bars retrial for greater offense

New evidence
Unlawful conduct that is subsequently used to prove the greater offense
Has not occurred at the time of prosecution for the lesser offense or
Has not been discovered despite due diligence
Retrial for murder is permitted if victim dies after attachment of jeopardyfor battery

Prohibition against double jeopardy does not apply to trials by separate sovereigns
State and fed gov= separate sovereigns
2 states= separate sovereigns
State and its municipalities= same sovereign
Separate sovereigns can try a D for the same offense
Attachment doesnt matter if there are two separate sovereigns

Question 42

privilege against compelled self incrimination (Who, when, methods, scope, violation, elimination, waiver )

Answer 42

Who may assert
Privilege against self-incrimination can be asserted by any person in any type of case when answer to question might tend to incriminate them

When asserted
Whenever their response might furnish a link in the chain of evidence needed to prosecute them
Claimed in civil proceeding to prevent the privilege from being waived for a later criminal prosecution

Methods for invoking
D has right not to take witness stand at trial and not be asked to do so
Being required to give one’s name after terry stop does not violate 5th amendment

Scope of protection
Testimonial but not physical evidence
5th amendment privilege protects testimonial or communicative evidence and not real or physical evidence
Can take cheek swab after arrest for serious crime

Compulsory production of doc = no basis in the privilege to refuse to comply
Seizure of incriminating docs =Privilege protects against being compelled to communicate info not against disclosure of communication made in the past

When violation occur
Until person’s compelled statements are used against them in criminal case
Prohibition against burdens on assertion of privilege
Prosecutor may not comment on d’s silence after receiving miranda warnings or at trial

Exception
Prosecutor can comment on D’s failure to take stand when in response to D’s assertion that D was not allowed to explain story
If suspect remains silent before Miranda warnings, silence can be used against them
Can’t impose penalties for failure to testify

Elimination of privilege
Witness may be compelled to answer questions if granted adequate immunity from prosecution
Use derivative use immunity guarantees that witness’s testimony and evidence located bc of testimony will not be used against witness
Immunized testimony involuntary
Testimony obtained by a promise of immunity is coerced and therefore involuntary

Immunized testimony may not be used for impeachment of a D’s testimony at trial
Any immunized states true or untrue can be used in trial for perjury
Federal prosecutors may not use evidence obtained as a result of a state grant of immunity and vice versa

No possibility of incrimination
Person has no privilege against compelled self-incrimination if there is no possibility of incrimination (SoL has run)
Immunity extends only to offense to which the question relates and does not protect against perjury committed during immunized testimony

Waiver of privilege
D waives by taking witness stand
Witness waives by disclosing incriminating information

Question 43

forfeiture actions

Answer 43

GR: excessive fines clause of 8th amendment does not apply to civil forfeitures

Forfeitures made under the fed drug forfeiture state are penal and subject to 8th amendment clause

Monetary forfeitures
Brought in civil actions generally are not subject to the 8th amendment

Question 44

attenuation doctrine

Answer 44

For the exclusionary rule to apply there must be a causal connection between the illegal conduct and the evidence
If causal link is broken, no suppression bc it would not serve the purpose of deterring future misconduct

For confessions, an independent act of free will is necessary to purge the primary taint of the illegal conduct

There is no per se rule that Miranda warnings will purge the taint of an earlier 4th amendment violation

Ct must consider
Temporal proximity of the arrest and the confession
Presence of intervening circumstances
Purpose of flagrancy of the official misconduct

Question 45

Transactional Immunity

Answer 45

Protects the witness from prosecution for the offense or offenses involved