Crim Pro

Question 1

Exclusionary Rule

Answer 1

(ER): Evidence obtained in violation of Δ’s constitutional rights is inadmissible against Δ in trial
a. State action: 4th, 5th, 6th, 8th Amendments protect against governmental conduct, e.g., by police, gov’t agents
b. Fruit of the poisonous tree: All derivative evidence obtained via inadmissible evidence is also excluded
c. While evidence can be suppressed, violation does not entitle Δ to have indictment or prosecution dismissed

Question 2

EXCEPTIONS to ER

Answer 2

EXCEPTIONS to ER: Taint of derivative “fruit” may be dissipated even if traceable to an initial violation of rights
i. Grand jury
ii. Good faith reliance on warrant
iii. Knock and announce violations do not automatically trigger ER; exclusion is not a remedy
iv. Independent source of derivative evidence
v. Inevitable discovery:
vi. Intervening act of free will by Δ (attenuation, e.g., subsequent confession after release after illegal arrest)
vii. Impeachment of Δ’s testimony only
ix. Miranda violation is not a poisonous tree

Question 3

Grand Jury exception to ER

Answer 3

A grand jury may hear and use any piece of evidence regardless of its admissibility

Question 4

Good faith reliance on warrant

Answer 4

reasonably well-trained PO would have believed W was valid (e.g., clerical error)

Question 5

Independent source of derivative evidence

Answer 5

source being separate from original illegality. May “rediscover”

initially illegal evidence under valid W if police would have applied for and received W anyway

Evidence of an entirely unrelated crime is untainted and admissible (despite original illegality)

Question 6

Inevitable Discovery

Answer 6

PO would have discovered the evidence regardless of illegality or unconstitutional police conduct (e.g., via systematic search)

Question 7

Impeachment of Defendant’s Testimony

Answer 7

(1) Confession taken in violation of Miranda and
(2) real or physical evidence seized from illegal search are still admissible to impeach Δ’s trial testimony

Question 8

Attenuation

Answer 8

Evidence with a “but for” link to a poison tree may be so distant from the initial illegality that the taint of poison is purged and the evidence is admissible

Question 9

Miranda Violations and ER

Answer 9

Can admit evidence seized via statements obtained from failure to give Miranda warnings, although a confession itself is not admissible if obtained in violation of Miranda

Question 10

4th Amendment

Answer 10

protects against violation of constitutionally protected privacy

The 4th Amendment protects against unreasonable searches and seizures by the gov’t or its agents

Question 11

Standing to 4th Amendment

Answer 11

To have standing, Δ must have had a reasonable expectation of privacy (REP) in the place searched—subjectively + objectively (society is prepared to accept the expectation of privacy as reasonable)
i. Standing (to object to search) is proper if Δ had possessory right of the place searched or item seized
Reasonable expectation of Privacy also exists if Δ lived in (e.g., home) or stayed overnight at the premises searched
Mere ownership, as opposed to privacy or possessory interest in place or item, is insufficient
No REP where held out to public, e.g., knowingly exposed to public, open fields beyond home/curtilage, smell of luggage, misplaced trust in false friend, sense-enhancing tech available for public use, car in public

Question 12

Warrants

Answer 12

A search/seizure must be made with a valid W, which must be (1) issued by neutral, detached magistrate, (2) based on probable cause, and (3) described with particularity the place to be searched or item/person to be seized

Question 13

Probable cause (PC)

Answer 13

A fair probability that would warrant a reasonable person to conclude that evidence of a crime can be found at a particular place or that a particular Δ committed a crime
1. PC can be based on an informant’s tip, which must meet the totality of the circumstances (TOTC) test: practical, common-sense considerations showing probability of criminal activity based on informant’s veracity, basis of informant’s knowledge, and corroboration from police investigation predictive information showing insider knowledge. May be based on an anonymous tip
2. PO must show recent facts, not hunches or “known for.” To attack inaccuracies in a facially valid warrant, Δ must show material false statements made intentionally or recklessly (negligently OK)

Question 14

Scope of Warrant

Answer 14

Reasonably necessary to discover items. Must be executed w/o unreasonable delay while PC exists

Search of premises/car excludes the people present (mere presence doctrine), unless PC to arrest (search incident), PC that item on person, reas. suspicion (RS) of danger (frisk), or identified in W

Question 15

Knock and announce rule

Answer 15

Police must give notice and wait a reasonable time before entering to execute W, except when there is RS that announcing will lead to destruction of evidence, endanger officers, or be futile

Question 16

Good faith EXCEPTION to invalid W

Answer 16

Evidence or person seized via a facially valid (particular) but defective W is admissible if a reasonably well-trained PO acted in good faith thinking that the W was valid

Question 17

EXCEPTIONS to warrants generally

Answer 17

(CHAMPED) – where PC alone enough to justify a search or seizure w/o W
i. Community caretaking
ii. Hot pursuit of fleeing felon suspects (where speed and safety are essential)
iii. Automobile
iv. Minor intrusion into body in reasonable manner (e.g., breathalyzer test tube)
v. Plain view
vi. Exigency or Destruction of evidence

Question 18

Community caretaking

Answer 18

Going into home to make sure there isn’t further injury (based on objective TOTC)

Question 19

Hot pursuit of fleeing felon suspects (where speed and safety are essential)

Answer 19

PO may make warrantless search/seizure related to pursuit, or enter anyone’s home w/o W. Evidence in plain view will be admissible

Question 20

Automobile exception

Answer 20

Any vehicle/car capable of moving is covered (incl. a mobile home not fixed to the ground)
1. To stop car, needs RS of violation of law (can ripen to PC) or PC to believe crim evidence is in car
2. If PC to believe criminal evidence is in a car, can search w/o W: the whole car, closed containers (size limited to where evidence could be), and its contents, including passenger luggage
3. If PC to believe evidence is in a container in the car, search of car limited to that container (and where that container could be); once package is found, search is limited to the package
4. If PC to believe automobile itself is contraband, can seize it without W
iv. Minor intrusion into body in reasonable manner (e.g., breathalyzer test tube)

Question 21

Plain View

Answer 21

Police officer (PO) is lawfully present and positioned + “immediately apparent” that item is subject to seizure + PC to believe evidence is associated with crime (can’t move item for a better view)

Question 22

Exigency or Destruction of Evidence

Answer 22

PC to believe evidence likely to disappear before W can be obtained (e.g., blood alc. conc., scraping under fingernail). Warrantless search must end roughly when exigency end

Question 23

EXCEPTIONS to seizure warrants

Answer 23

ASS
PC generally needed, RS sufficient for Terry stop or frisk
i. Arrest
ii. Stop and frisk (Terry stop and Terry frisk) need RS. Stop
iii. Seizure by deadly force

Question 24

Arrest

Answer 24

Need PC for any arrest. No W is needed in a public place, but an arrest warrant is required for arrest inside one’s home (search warrant needed if someone else’s home), unless in hot pursuit or exigency

Question 25

Stop and Frisk

Answer 25

brief detention for investigative purpose, no longer than necessary to verify suspicion. Frisk: pat down for weapons only if RS that suspect has weapon
1. Reasonable suspicion (RS) = specific and articulable facts (unusual conduct) + rational inferences from the facts (criminal activity may be afoot (stop); suspect may be armed or dangerous (frisk))
2. Plain feel: During patdown, PO may seize items reasonably believed to be weapon or contraband (admissible as evidence)
3. Auto stop (RS): Per RS, may frisk driver/passenger or search car limited to where weapon may be
4. If PC arises during stop, it could become an arrest. PO can then conduct a search incident to arrest

Question 26

Seizure by Deadly Force

Answer 26

Under objectively “reasonable” circumstances, deadly force (e.g., shooting) may not be used unless necessary to prevent escape + PC to believe that suspect poses significant threat of death or serious injury to PO or others + where feasible, some warning has been given

Question 27

EXCEPTIONS to search & seizure warrants (SCAT)

Answer 27

SCAT
EXCEPTIONS to search & seizure warrants (SCAT) – no W or PC needed
i. Search incident to lawful arrest
ii. Consent search
iii. Administrative or special-needs search
iv. Terry stop – may be triggered by reasonable suspicion (see § I-f-ii)

Question 28

Consent Search

Answer 28

Arrest must be lawful (PC exists). May only include arrestee’s person and the area “within his immediate control” (where he might obtain weapon or destroy evidence), contemporaneous in time & place with arrest
1. “Contemporaneous” not necessarily “simultaneous” (e.g., can search car after securing arrestee)
2. Protective sweep (at home when executing arrest warrant): If police has RS of danger/attack from others in the home, may sweep spaces where another person might be hiding (e.g., not drawers)
3. Vehicle itself: 2 ways – unsecured arrestee or reasonable belief of criminal evidence in vehicle
a. PO can search inside vehicle (excl. trunk unless PC) incident to occupant’s arrest only when arrestee is unsecured and within reaching distance of a compartment while arrested
b. Search of whole vehicle incident to a lawful arrest is allowed if it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle
4. Inventory search: Police may conduct routine search of arrestee’s belongings or impounded car

Question 29

Administrative or special-needs search

Answer 29

no W, PC or RS needed
1. Not traditional crime control. Check general “reasonableness” of justification and scope of search
2. Public schools: Search by public school officials (e.g., search bag to investigate violation of school rules) must be reasonable. Search is reasonable if moderate chance of finding evidence + procedure reasonably related to objective of search + search not excessively intrusive
3. Businesses subject to heavy regulation (e.g., junkyard) may get warrantless, unannounced searches
4. Checkpoints: Suspicionless stopping and searching OK if done routinely, not randomly, at fixed pt
5. Borders: No W or PC needed for border searches. No 4A rights at border. May stop vehicle w/ RS
6. Other examples: gov’t workplaces if reasonable scope for work-related need, arrestee belongings

Question 30

5th Amendment

Answer 30

privilege against self-incrimination protects against government-coerced confessions
a. Δ may refuse to answer a question whenever his response might result in self-incrimination or reasonable possibility of contributing to his criminal conviction. Δ must assert right to silence or right to counsel for questioning to stop
b. Only governs compelled testimonial evidence (not physical). Body, voice sample, lineup, handwriting not protected
c. Voluntary statement after Miranda warning may still be admissible as a fruit
i. Independent source, inevitable discovery, intervening act by Δ, impeachment may still allow it (see § 0)

Question 31

Ways to eliminate privilege against self-incrimination and compel answers.
Privilege does not apply in these cases

Answer 31

i. Use and derivative immunity: testimony and derived evidence can’t be used against immunized Δ (evidence from independent source may still be used)
ii. Transactional immunity: complete protection from prosecution for self-incriminating testimony
iii. Extinguish by waiver: Δ waives privilege against self-incrimination and takes the stand
iv. No possibility of incrimination, e.g., statute of limitations runs out

Question 32

Voluntariness

Answer 32

For a self-incriminating statement (such as Δ’s admission) to be admissible under 14th Amendment DPC, it must be free and voluntary as determined by TOTC (not motivated by police coercion or official pressure)

Question 33

5th Amendment

Answer 33

must be given before any custodial interrogation. For Δ’s statement to be admissible under 5A privilege against self-incrimination (in Π’s case or to establish PC), Δ must have been reasonably informed of his right to remain silent (anything said can be used against him in court) and right to an attorney’s presence (and if he cannot afford an attorney, one will be provided, if he wants). No exceptions even for minor crimes

Question 34

In Custody

Answer 34

reasonable person in PO’s presence feels he is not free to leave or end the encounter
1. A traffic detention is non-custodial in nature

Question 35

Interrogation

Answer 35

reasonable PO knows/should know he is reasonably likely to elicit incriminating response
1. Routine questioning (e.g., booking, probation interview) is not considered interrogation
2. Even if no interrogation, Δ’s statement must still satisfy 14A DPC voluntariness (see § II-e)
3. Miranda forbids coercion, not strategic deception: Warning not required when suspect is unaware he is speaking to a police informant (or non-PO who relays statement) and gives voluntary stmt

Question 36

Failure to give Miranda warning

Answer 36

(failure to give warning before custodial interrogation) is inadmissibility in Π’s case in chief. OK to use to impeach credibility of Δ’s testimony, x-exam, etc.

Rt to silence forbids Π’s negative comments on Δ’s silence or failure to testify.

Drawing adverse inference subjects any conviction to “harmless error test” (conviction not overturned if other overwhelming evidence)

Question 37

Waiver of Miranda

Answer 37

Π must show knowing, voluntary, intelligent conduct showing Δ’s explicit/implicit willingness to make statement based on TOTC (e.g., receiving Miranda but choosing to answer is likely sufficient)

Question 38

Invocation of Miranda

Answer 38

Δ may terminate interrogation any time by unambiguously invoking right to silence or counsel
1. PO may reinitiate Qs after rt to silence on unrelated crime after some time + re-Mirandizing
2. Re-initiation after rt to counsel only if Δ reinitiates. No questioning unless counsel at interrogation

Question 39

Impeachment

Answer 39

Statements obtained in violation of Miranda (but not post-Miranda silence) are admissible to impeach Δ

Question 40

Public Safety Exception

Answer 40

Warnings need not be given if necessary for public safety (e.g., to ask downed robber where gun is, Δ has info about bomb that could go off in public)

Question 41

Double Jeopardy

Answer 41

Prevents Δ from being criminally tried twice for the same offense arising from the same set of facts after a determination on the merits
i. Same offense: Two crimes are the same offense, unless each crime requires proof of a unique element
1. Jeopardy attaching to greater offense bars retrials for lesser included offenses (robbery → larceny not permitted – “same offense”)
2. Jeopardy attaching to lesser included offense bars retrial for a greater offense, unless Π could not have tried the 2nd crime at the time (battery conviction → V later dies as a result → retrial for murder permitted)
ii. Jeopardy attaches when 1st witness sworn in (non-jury trial) or jury is impaneled (jury trial). Does not attach in civil proceedings (OK to have criminal and civil proceedings for same offense)
iii. Separate sovereignties: Δ can be prosecuted for the same offense in different jx – fed/state/crim/civil levels
iv. EXCEPTIONS permitting retrial: breach of plea bargain by Δ/Π, retrial after Δ’s successful appeal, trial is aborted for manifest necessity (e.g., med. emergency), terminated by Δ not on merits, or ends in hung jury

Question 42

Double Jeopardy Exceptions

Answer 42

a. Legislative intent: 2x punishments OK if statute provides (e.g., robbery + use of weapon)
b. New evidence for greater offense becomes available since prosecution of lesser offense (now different set of facts)

Question 43

Pre Trial Identifications

Answer 43

In post-indictment lineup or showup, right to counsel at all times he is visible to witnesses
i. Due process (5A/14A) applies to all pretrial IDs: Any lineup, showup, or photo ID is inadmissible as denying due process if it was unnecessarily suggestive + there is substantial likelihood of misidentification
1. Consider what’s “suggestive”: distinguishing features (e.g., suspect of one race in lineup w/ other races), witness’s opportunity to see Δ at the scene, witness’s certainty, time elapsed since crime
a. EXCEPTIONS: necessary under circumstances (e.g., lineup is impractical because witness is near death), or ID is reliable based on a TOTC assessment
ii. Remedy: Results of pretrial ID is per se inadmissible at trial, unless independent source exists under TOTC. TOTC factors: opportunity to view Δ at scene, ease with which witness can ID Δ, prior misidentifications

Question 43

6th Amendment

Answer 43

prevents elicitation of incriminating statements by government after formal charge
a. Δ has the right to counsel at critical stages of prosecution, e.g., post-indictment interrogation and lineup, guilty plea
i. N/A at investigatory stages, e.g., pre-charge lineup, photo ID, body sampling, parole/probation hearing
1. Unless bad faith by police (e.g., set up intentional surprise encounter for witness and Δ)
ii. Offense specific: Applies to the charge 6A right is attached to. Δ can be questioned on unrelated charge
iii. Violation of this right at trial requires reversal. For non-trial denials of counsel, apply harmless error test
iv. Waiver: Δ’s knowing and intelligent relinquishment of right, considering TOTC (Δ’s character, circumstances). Δ may defend self (pro se) at trial w/ waiver and trial judge’s discretion that Δ is competent
b. Right is triggered by actual result: Any crime that results in imprisonment meant that Δ had the right to counsel

Question 44

Duty to disclose exculpatory evidence

Answer 44

Π must disclose evidence that is favorable to Δ and material (reasonable probability of different outcome). Failure to disclose violates DPC and is grounds for reversing a conviction

Question 45

Effective assistance of counsel

Answer 45

6A right to counsel includes the right to effective counsel. Effective assistance is generally presumed.

To claim ineffective assistance, Δ must show deficient performance + actual prejudice
i. Deficient performance: Show particular acts/omissions reasonably competent practitioner would not make
ii. Actual prejudice: Reasonable probability (20-25%) that the result would have been different but for errors
iii. Where Δ made a preliminary showing that he is likely to be able to use insanity defense, gov’t must provide a psychiatrist for preparation of his defense
iv. It is a 6A violation to represent more than one Δ when a conflict of interest jeopardizes rights of any co-Δ or adversely affects the attorney’s performance (burden on Δ to show the conflict’s adverse effect)

Question 46

Right to self-representation

Answer 46

available to Δ as long as there is a voluntary waiver of the right to counsel at trial by Δ
i. Judge must consider Δ’s waiver to be knowing + intelligent (see § III-a-iv), and Δ competent to proceed pro se.

EXCEPTION: Δ does not have right to self-rep on appeal (Δ may not waive right to counsel)

Question 47

Right to speedy trial

Answer 47

Attaches under 6A once Δ arrested or charged (knowledge of charges is irrelevant). Remedy for violation is dismissal of case.

Violation factors: unreasonable length of delay (e.g., 1 year), reason for delay (no due diligence by Π), whether Δ asserted right, prejudice to Δ (e.g., destruction of evidence, oppressive incarceration)

Question 48

Right to jury trial

Answer 48

“Serious” offenses only (if max authorized imprisonment is more than 6 months under 1 charge)
i. Minimum number of jurors permissible is 6. Jury verdicts must be unanimous in federal and state courts
ii. Δ has right to select jury from representative cross-section of community BUT not to fair cross-section jury
1. Peremptory challenge to exclude a potential juror based solely on race or gender violates EPC

Question 49

Guilty Plea Requirements

Answer 49

must be voluntary + intelligent. Judge must ensure on the record that Δ understands (1) nature of charge and critical elements, (2) maximum and minimum possible penalties, (3) the right not to plead guilty, and (4) that by pleading guilty he waives the right to trial. Remedy for not meeting above standards: Withdraw plea and plead anew

Question 50

Right to confront witnesses

Answer 50

A criminal Δ is guaranteed the right to confront his witnesses under 6A

i. Any prior out-of-court testimonial statement by an unavailable witness cannot be used against Δ in criminal trial unless Δ had a prior opportunity to cross-examine the witness at the time the statement was made

Testimonial statement: One used against an accused in criminal prosecution, solicited by the state for the primary purpose to establish or prove past events potentially relevant to later prosecution

No violation to remove disruptive Δ or where absence of confrontation serves an important public purpose

Question 51

Co-Δ confessions

Answer 51

If 2+ persons are tried together and one co-Δ gave a confession that implicates Δ, the right of confrontation prohibits use of that statement, even where it overlaps with Δ’s own confession

1. BUT such a statement is admissible if all portions referring to Δ are eliminated, or confessing co-Δ takes the stand and subjects himself to cross-examination as to truth/falsity of statement, or confession is used to rebut Δ’s argument that his confession was obtained involuntarily
   iii. No violation to remove disruptive Δ or where absence of confrontation serves an important public purpose

Question 52

8th Amendment

Answer 52

prohibits cruel and unusual punishment (does not apply to civil fines)

Applies to penalties that are grossly disproportionate to the seriousness of the offense committed

There is no constitutional right to bail. If it will be ineffective to secure the presence of Δ at trial, it may be denied

Question 53

Death Penalty

Answer 53

No automatic death penalty may be imposed. But death penalty does not inherently violate 8A
i. May be imposed for murder under a statute that gives judge or jury reasonable discretion, full information concerning Δ, and guidance in making the decision. Statute must not be vague and must allow sentencing body (jury) to consider all mitigating evidence
ii. May be imposed if Δ was major participant of felony murder & acted w/ reckless indifference to human life
iii. Unconstitutional if a death penalty statute does not give Δ a chance to present mitigating circumstances
iv. Jury must be allowed to consider mitigating circumstances, impact on V’s family
v. Cannot be imposed on minors @ time of offense, mentally disabled, legally insane @ time of execution