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crim pro Flashcards

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1
Q

What are the four areas of concern for fourth amendment purposes?

A

person, home, papers and effects

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2
Q

Does law enforcement need a warrant to search you in public?

A

No

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3
Q

What are the factors that distinguish curtilage from open fields?

A

proximity to home
whether area is enclosed within the same fence as the home
subjective efforts to shield area from public view; and
whether area is used for residential purpose

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4
Q

Does peering through the exposed portion of a backyard implicate the Fourth Amendment?

A

No

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5
Q

What is the Katz test to determine whether there’s been a search for 4a purposes

A
  1. Does person have subjective exp of privacy?
  2. Is that exp one society is prepared to deem reasonable.
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6
Q

Does a person visiting a friend but not staying overnight have a reasonable expectation of privacy at the friend’s house?

A

No; no standing to exclude evidence

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7
Q

When has a seizure occurred for 4a purposes

A

When a reasonable person wouldn’t feel free to terminate an encounter with law enforcement.

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8
Q

warrant requirement

A

Generally, to conduct a search consistent with the 4a, one requires a warrant.

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9
Q

Warrant Exception: Automobile

A

No warrant necessary to search an automobile so long as officer has pc

may not apply to motor homes that aren’t readily mobile by the turn of a key.

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10
Q

Warrant Exception: Automobile SIA

A

can search the passenger compartment of an automobile after valid arrest if arrestee not safely detained.

If arrestee is safely detained, then you need a reason to believe that evidence relevant to offense may be discovered

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11
Q

Automobile inventory search

A

arrestee’s car may be searched as part of an inventory search conducted pursuant to official law enforcement policy.

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12
Q

Plain view

A

evidence may be seized so long as
1. it’s observed from a lawful vantage point; and
2. it’s illegality is immediately apparent

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13
Q

exigent circs

A

hot pursuit of fleeing suspect

officer reasonably believes
evidence will be destroyed

officer reasonably believes entry necessary to render medical assistance or prevent harm

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14
Q

SIA

A

arrestees personal prop in immediate possession

immediate area around arrestee

breathylizer

dna if arrested for felony

No need for pc or rs

justified by 1. officer safety 2. prevent destr. of evidence

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15
Q

Protective sweep

A

cursory visual inspection of places where person might be hiding in a home after lawful arrest.

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16
Q

consent to search

A

toc

characteristics of person searched

improper officer behavior

search must be within scope of the consent

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17
Q

parolee/probationer

A

rs required for probationer if warrantless searches condition of parole

no suspicion for parolee if condition of parole

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18
Q

public arrest

A

no warrant

rs that crime was committed by suspect

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19
Q

home arrest

A

arrest warrant required
reasonable basis to believe suspect inside if unaccompanied by search warrant

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20
Q

warrant requirements

A

neutral and detached magistrate

particularity of place and items

sworn application identifying the basis for officer’s pc

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21
Q

Probable cause

A

facts and circs that would justify a reasonable officer’s belief based on what is known to him at the time that a crime has been committed, that evidence will be found, or that someone in process of committing crime

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22
Q

rs

A

specific and articulable facts justifying an officer’s suspicion that criminal activity is afoot.

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23
Q

Terry Stop and Inquire

A

RS that crim act is afoot required

brief detention/seizure and questioning

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24
Q

Terry stop and frisk

A

rs that suspect has weapon

weapon can be seized

contraband too if it meets the requirement for plain view/sense exception

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25
Q

exclusionary rule standing

A

commercial visitors to one’s home may not exclude

overnight guests can

automobile passengers cannot challenge unconstitutional search

automobile passengers can challenge unconstitutional seizure.

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26
Q

Independent Source Exception

A

evidence that would have been found pursuant to an independent source of pc unrelated to illegal search cant be excluded

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27
Q

inevitable discovery

A

applies if le would have without violating the 4a found the evidence inevitably.

28
Q

good faith exception to exclusionary rule

A

officer’s reasonable reliance on invalid warrant

officer’s reasonable reliance on technical mistake suggesting warrant exists

officer’s reasonable reliance on law at time of search but later declared uncons.

29
Q

What does 5a privilege against si apply to?

A

interrogation by law enforceement

criminal defendants decision not to testify

those called to testify at all kinds of hearings

(can be construed against non criminal defendants)

30
Q

preconditions for valid 5a invocation

A

possibility of si
compulsion to testify
required response is testimonial

31
Q

testimonial

A

communication

with law enforcement

for purposes of reconstructing past events for use in a criminal prosecution

not compelled speech in a lineup

not compelled speech in a

32
Q

act of production doctrine

A

if producing documents would be an incriminating act, suspect may raise 5th a objection.

can’t raise it in response to content of docs themselves

33
Q

Immunity necessary to compel testimony/production despite 5a si objection

A

derivative use

prevent use of testimony from use against him in subsequent pros.

prevent use of evidence derived from testimony

(no need for transactional immunity)

34
Q

5a and corporations

A

doesn’t apply

35
Q

Involuntary confessions

A

whether under the toc, (1): police subjected suspect to coercive conduct; and (2): conduct sufficient to overcome the will of suspect

36
Q

coercive conduct

A

small room/closed door
display of firearm
number of officers
free to leave?
deception?

37
Q

overcoming of will

A

conduct of le
suspect’s individual characteristics

38
Q

involuntariness found

A

use of significant physical force
credible threat of death or serious bodily injury
interrogating suspect
starving suspect
refusing suspect sleep

39
Q

motion to suppress confession

A

hearing outside jury’s presence

40
Q

When must Miranda rights be read?

A

before 1. custodial
2. interrrogation

41
Q

Miranda custody

A

More serious than typical seizure

formal arrest or its functional equivalent

restraints, demanding tone, location, position of officers’ bodies, number of officers

not a traffic stop
not stop and frisk
no probationers or parolees if part of condition

no consideration of the individual characteristics of the person potentially in custody.

42
Q

Miranda 5a si

A

must be invoked unambiguously

police may interrogate again significant lapse of time

not offense specific

waived if suspect keeps talking following reading of rights

43
Q

miranda right to counsel

A

must be invoked unambiguously

not offense specific

police may not interrogate without lawyer present

cannot be waived without lawyer present once invoked unless there’s been a break in custody for 14 days.

44
Q

Miranda exclusionary rule

A

only confession suppressed; not any fruits of the confession

second confession after miranda warnings following confession without Miranda warnings not unconstitutional and shouldn’t be excluded unless seen as part of a continuing unwarned sequence of questioning.

45
Q

miranda interrogation

A

words an officer should know are reasonably likely to elicit an incriminating response.

not conversations between officers.

46
Q

6a rtc

A

applies to all critical stages after defendant has been formally charged

not to lineups prior to initiation of adversary proceeding

offense-specific

47
Q

charged for 6a purposes

A

arraignment

appearance in court for preliminary hearing

information/indictment

48
Q

What does the 6th amendment right to counsel prohibit

A

prohibits an officer from deliberately eliciting an incriminating statement ABOUT THE MATTER HE’S BEEN CHARGED IN RELATION TO once adversarial proceedings have commenced

49
Q

attachment for crimes without jail time

A

attaches only if the court actually imposes at least one day of jail time

50
Q

ineffective assistance of counsel

A
  1. deficient performance
  2. prejudice
51
Q

bright line ineffective assistance of counsel violations

A

failing to advise of potential immigration consequences of guilty plea

failing to seek out mitigating evidence for the sentencing phase of a capital case

52
Q

pretrial ids following 6a rtc attachment

A

applies for live lineups

doesn’t apply for photo arrays

53
Q

6a right to jury trial

A

applies if penalty is more than 6 months jail

6 members required

unanimity required

54
Q

5th and 14th amendment due process

A

requires jurors to find all elements brd

requires jurors to find all facts increasing statutory max sentencing brd

no directed verdicts in favor of pros.

55
Q

equal protection Batson

A

no discriminatory practices in jury selection

prima facie case of discrimination

burden shifts to other party who must offer a nondiscriminatory explanation

56
Q

actual seating required (removal for cause)

A

defendant not prejudiced where judge wrongfully fails to remove juror for cause if juror removed anyway using peremptory challenge.

57
Q

capital jurors

A

may be removed for cause if categorically opposed to death penalty

(not merely because they express reservations about it).

also if it would substantially impair him from impartially deciding whether death penalty is warranteed

58
Q

confrontation clause:

A

waivable

prohibits introduction of testimonial hearsay unless out of court declarant was subject to cross examination under oath by defendant.

resolving ongoing emergency not testimonial

59
Q

confrontation clause rt to personally confront

A

showing of good cause required to permit witness to testify without seeing defendant

child victim by cc television

only upon showing that its necessary to protect child’s well-being

60
Q

due process right to be present during critical stages: when is it waivable?

A

defendant doesn’t show up
defendant is disruptive

61
Q

due process: appearance

A

rt to wear street clothing
rt not to be restrained

62
Q

due process presumption of openness

A

trials presumptively open to public
can be closed only if there’s a compelling interest and it’s the lre

63
Q

6a limited right to self representation

A

trial court must engage in colloquy to ensure defendant knows of advantages of counsel and risks of self representation

must satisfy knowing voluntary and intelligent requirement

may not apply to those with mental health issues

may be revoked if ▲ engages in obstructive behavior.

64
Q

guilty plea

A

record must reflect plea was knowing, intelligent and voluntary

record must reflect ▲ understands he’s waiving right to jury trial, confront witness and remain silent; and that defendant was informed of punishment range and elements of offense.

65
Q

initial pc hearing

A

warrantless arrests require prompt pc determination
within 48 hrs: presumptively constitutional under 4a unless def. shows determination wrongfully delayed

after 48: presumptively unconstitutional unless govt carries burden to show emergency justifying delay.

66
Q

Preliminary hearing

A

judge determines whether pc exists

defendant entitled to be present, represented by counsel and to cross examine witness

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