Crim Pro

Question 1

Impermissibly suggestive identification

Answer 1

5th Am for fed prosecutions, 14th Am for state prosecutions due process right. 1) D must prove ID procedure was impermissibly suggestive 2) D must prove there was a substantial likelihood of misidentification

Question 2

5th Amendment custodial interrogation

Answer 2

As per Miranda, suspects gave a constitutional right not to be compelled to make incriminating statements in the police interrogation process, needs safeguards first (Miranda warnings)

Question 3

Custodial

Answer 3

A substantial seizure and is defined as either a formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest. Test is to see if a reasonable person would feel free to leave

Question 4

Exceptions to Warrant Requirement

Answer 4

SPACES
1) search incident to arrest
2) exigent circumstances
3) stop and frisk
4) automobile exception
5) Plain view doctrine
6) Consent

If no exception, then Exclusionary rule and evidence is inadmissible

Question 5

Government/State Action

Answer 5

To demonstrate govt conduct, D has to show that the government or police were involved in the unreasonable search and seizure

Question 6

Reasonable Expectation of Privacy

Answer 6

In order to get 4th amendment protection, need to make sure that D has REP to area searched

Question 7

Seizure of a person

Answer 7

Would a reasonable person not feel free to leave (includes arrest, stop and frisk, police checkpoints, and traffic stops)

Question 8

Arrest

Answer 8

Generally need a warrant

In public: don’t need a warrant if witnessing a misdemeanor, or has PROBABLE CAUSE that felony has been committed (not witnessed by officer)

Question 9

Terry Stop

Answer 9

Temporary intrusion on individual’s freedom of movement. Officer can stop if he has reasonable suspicion that person is engaged in or has engaged in criminal activity

Question 10

Police checkpoints

Answer 10

Valid as long as stop is conducted in non-discriminatory manner and purpose of the checkpoint is for articulable reason beyond general crime prevention

Example: DUI checkpoints are okay bc it’s pulling dangerous drivers off the road, but one for checking for general contraband is not

Question 11

Traffic stop

Answer 11

Valid when officer has reasonable suspicion or probable cause that a traffic law has been violated

Question 12

Search

Answer 12

Occurs when government conduct violates the defendants REP

Question 13

Valid search warrant

Answer 13

1. Issued by detached and neutral magistrate
2. Be based upon probable cause
3. Describe with particularity the defendant and crime or places to be searched and items to be seized

Question 14

Stop of a person

Answer 14

Officer has reasonable suspicion person is engaged in criminal activity

Question 15

Frisk of a person

Answer 15

Officer has suspicion that they are armed and dangerous. When frisking can only do general pat down, CANNOT go into pockets

After identifying immediately apparent contraband or weapon, they can seize it

If they pull something out that isn’t contraband that they thought was (like a box), if it’s not clearly drugs, they cannot open it

Question 16

Search incident to LAWFUL arrest

Answer 16

If probable cause for arrest, then can search arrestee and his immediate surrounding.

If in home, can search anything they could grab themselves (basically whatever room they’re in)

Question 17

Automobile exception to warrantless search

Answer 17

If officer has probable cause that car has contraband or other evidence, they may search it without a warrant. Includes trunk and locked containers if they have probable cause that the contraband or weapons are there

Question 18

Plain View

Answer 18

Officer has to be in location that they’re allowed to be in, and incriminating character of the item is immediately apparent

Question 19

Exigent circumstances

Answer 19

May make a warrant less search if probable cause exists (flushing drugs down a toilet)

Question 20

Consent to search

Answer 20

Look at scope of consent (if driver says “you can search the passenger seat of my car” then limited to that

Question 21

Exclusionary rule and fruit of the poisonous tree

Answer 21

Applies to evidence seized as a result of government illegality, and any evidence derived from illegal government action

NOTE: exclusionary rule is direct result of that illegal search, poisonous tree doctrine is what is found as a result of that illegal evidence!!

Question 22

Exceptions to exclusionary rule

Answer 22

1) inevitable discovery through lawful means
2) independent source unrelated to the taint (ind source discovers the evidence)
3) passage of time: sufficient time passed from illegal action and discovery of evidence
4) good faith reliance: police execute warrant believing it is valid in good faith and find evidence but warrant is later found defective, evidence found is still admissible

Question 23

5th amendment

Answer 23

Officers must give defendant migrants warnings when in police custody AND being interrogated (if either custody or interrogation is missing, no Miranda warnings needed)

Note: police lineup is not a custodial interrogation, not entitled to Miranda rights, even if invoking Miranda rights

Question 24

Custody

Answer 24

In custody if he reasonably believes he is not free to leave or is otherwise deprived of freedom in significant way

Question 25

Interrogation

Answer 25

When police engage in conduct that is likely to elicit a response, whether incriminating or exculpatory

If in custody and talking to undercover agent, that is not considered violation of 5th or an interrogation

Question 26

Waiver of Miranda

Answer 26

Must be a voluntary waiver, cannot be result of government coercion

Question 27

Invoking Miranda

Answer 27

D unambiguously asserts right to an attorney, then police cannot question him without either providing an attorney or obtaining a waiver of the right to counsel

Question 28

Re-approaching D after Miranda

Answer 28

Once invoked, cannot re-approach the D to question him about the crime charged or any other crime. Even if Miranda is given again and get a waiver

Question 29

Spontaneous statements

Answer 29

D invokes Miranda, and then voluntarily makes a statement, that statement is admissible

Question 30

Standing to invoke Miranda rights

Answer 30

Can only invoke yours, and assert violation of another person, that persons violated rights could still be used against you

Question 31

Exclusion of Miranda violated statements

Answer 31

They can be used to impeach only.

And physical evidence from a non-mirandized confession can be used!!

Question 32

6th amendment right to counsel

Answer 32

All critical stages after they’ve been arraigned or charged (if lineup but not charged, then no right to counsel)

Here is where the undercover agent exception doesn’t apply, cannot interrogate for that crime

Can interrogate for other crimes (still be weary of 5th). 6th protects only for the crime charged

Question 33

D waiver of 6th amendment right to counsel

Answer 33

Must be done knowingly and voluntarily

Question 34

Due process clause 14th and 5th

Answer 34

States: 14th
Govt: 5th

Police lineups must not be conducted in a manner that is unnecessarily suggestive or provides substantial likelihood of misidentification

(6th applies to post charge in person lineups)

Question 35

Searching passenger compartment of vehicle without arrest

Answer 35

1) police possessed reasonable belief that suspect is dangerous and may gain immediate control of weapons
AND
2) search of passenger compartment is limited to those areas in which a weapon may be placed or hidden

Question 36

Right to Confrontation

Answer 36

admission by a non-testifying co-defendant at a joint trial against the defendant violates 6th amendment.
- limiting instruction wouldn’t cure it

If co-defendant is testifying the admission then the rule does not apply (bc he can confront him)

Can demand separate trial from co-defendant when prosecution is introducing confession that is hostile to D, and the confession:
1) implicates the confessing D but is not admissible against the non-confessing D
AND
2) cannot be edited to exclude incrimination of the non-confessing D

Question 37

6th discharge and get new attorney

Answer 37

If trial is soon, court will have to consider whether motion would put D at disadvantage, be unfair to co-defendants, or unduly delay trial

Question 38

Ineffective assistance of counsel

Answer 38

D needs to show facts that his attorney was not reasonably competent