crim pro Flashcards
pretrial hearing
determine if probable cause exist because there have either been; no grand jury indictment or judical issuance of probable cause; D has been arrested or released on bail; it is within 48 hrs of D’s arrest
general
Under the 4th Amendment, 5th Amendment and 6th Amendment of the United States
Constitution through the 14th Amendment to the states, citizens have a right to: 1) be
free from unlawful arrest without probable cause 2) free searches where they have a
reasonable expectation of privacy, unless a detached and neutral magistrate has issued
a specific search warrant, or there is a warrant exception, 3) citizens also have the right
to remain silent, under Miranda when being interrogated while in custody of the police,
and, 4) they also have a right to have an attorney during critical stages of the criminal
process, and a speedy trial.
4TH Amendment – Search and Seizure
Protects citizens from unreasonable search and seizures by the government in places
where they have a reasonable expectation of privacy.
Generally, the state needs a search warrant issued by a detached and neutral
magistrate.
Exceptions: Consent, Plain view, Search incident to arrest, Stop and Frisk, Hot
Pursuit/Exigent and Automobile, Inventory
5th Amendment – Right to Remain Silent
Right against self-incrimination (need custody and interrogation) and double jeopardy.
Miranda
6th Amendment – Right to Counsel and Public Trial
Right to counsel in critical stages and a public, right to a speedy trial, and the right to
confront witnesses brought against you.
4th amd
4th amd. (Searches and seizures)
Generally, The Fourth Amendment applies to searches or seizures conducted by government
agents in areas where the complaining individual has a reasonable expectation of privacy. An agent usually needs a warrant otherwise , it must be excluded under the exclusionary rule. However, there are many exceptions to exclusionary rule, including exigent circumstances, search incident to arrest, consent(even overnight guests), the automobile exception, plain view, inventory searches, special needs, and Terry stops/frisks, and evidence/trial purpurses (1) IMPEACHMENT ADMISSIBILITY
(ALTHOUGH FRUITS OF AN ILLEGAL SEARCH ARE EXCLUDED FROM TRIAL RELATIVE TO
GUILT, THE EVIDENCE MAY BE USED ON CROSS-EXAMINATION IF THE DEFENDANT TAKES THE STAND, TO IMPEACH HIS CREDIBILITY), (2) GRAND JURY ADMISSIBILITY (AS DISCUSSED ABOVE), AND (3) IN COURT IDENTIFICATION (A WITNESSES IN-COURT IDENTIFICATION OF THE DEFENDANT WILL NOT BE EXCLUDED AS A POISONOUS FRUIT OF AN UNLAWFUL DETENTION IF THE WITNESS’S KNOWLEDGE OF THE DEFENDANT’S IDENTITY WAS
ACQUIRED PRIOR TO THE ILLEGALITY).
4thamd. the arrest warrant must authorize forcible entry only if the officers had reason to believe that D was at home at the time of entry. If it its a question of abandonment then must show intent to abandon but just that it look abandoned.
-In Plain view exceptions, if officers are lawfully in a position from which they view an object,
if its incriminating character is immediately apparent, and if the officers have a lawful right
of access to it, they may seize it without a warrant.
-In Terry stops and frisks, the Fourth Amendment permits detention of an individual for a
brief period of time if the police have “reasonable, articulable suspicion” that the individual has been recently involved in criminal activity. (Probable cause)
warrants
there is arrest warrants, warrants for search,
-What is the test when obtaining a warrant by relying on an informant? 1. are they reliable and creditable? Did the informant give info in the past, do they have any personal knowledge or observation? Is the info corroborated? 2. The agent seeking the warrant must explain the circumstances he relied on
good faith warrant exception: police got a defective warrant however, they tried to get the warrant on good faith
good faith exception: - [ ] When are police held accountable for defective warrants ? 1. Misleading affidavits to the magistrate (affidavits that were knowingly false) 2. Inadequate affidavit- concessionary statements without any factual basis for these conclusions 3. Factually deficient warrants - warrant fails to state with suffienct certainty the area to be searched or the items sought 4. Rubber stamping magistrate - the magistrate abandoned their role in conducting an inquiring and merely issued the warrant requested
When have a warrant-Knock and announce unless
What are the warrant exceptions? 1. No knock because because will put officers at risk or will destroy evidence, 2. incident to a lawful arrest(probable cause), 3. Plainview 4. Consent (can be taken back and search must stop…if two ppl need both if only one person present then is enough), 5. stop in frisk(open hand pat down must believe D is armed and dangerous can take what is believed to be a weapon or contraband), hot pursuit(trying to get away), 6. exigent circumstances
exception: when police is conducting searched (car or home) - if police believe others or D can get to waepons in their wing span;; police can seize them temporary until search is over
in home- police can seize temp by doing a cursory protective sweep of spaces where ppl hide (closets, under bed)
police can also do invntory searches- when D is arrested police can search arrestee belongings once they are jailed without a warrant
trunk- police can serach closed areas and containers if believe the area can reasonably hold the evidence sought. Cant search parked or immobile vechicles since the danger of the evidence being removed is significantly diminished.
checkpoints/ roadblocks- prim purpose is to help investigate a crime and advance a public concern; must be uniformly applied, may be set up for inspection purposes near a border, under reasonable
circumstances to apprehend a fleeing felon, or for a legitimate government purpose. Cars may not be searched unless there is
probable cause to believe the car contains evidence of a crime. cars are stopped in a neutral manner
Administrative search- search carried out by regulatory bodies to enforce compliance with administrative regulations and or health and safety codes.
public school search- police need a moderate chance of finding contraband, serach methods are reasonably related to the purpose of the serach; search is not excessively intrusive
5th,
Fifth Amendment—right to counsel pre-stage and right to remain silent to avoid self incrimination: state: officers can not compell a statement from D. a compelled statement is elicted, coerced, or induced by a gov actor “Law enforcement officers are required to read Miranda warnings to a suspect when the suspect is subjected to a custodial interrogation.”
However, Public safety: warnings are not required if the questions are intended to protect public
safety (e.g., to secure weapons after a shooting). (July 2017).
A request for att. Must be unambiguous and sufficiently clear that reasonable officer would understand statement to be request.
§ A valid Miranda waiver: The suspect must make a “knowing, intelligent, and voluntary”
waiver.
If a violation occurs: The statements are excluded from the prosecutor’s case-in-chief. The physical fruits are not excluded if the statements were made voluntarily. (July 2011)
-police dont have to tell D that lawyer is there, as Long as no adversary proceedings commenced for that charge. also if police know of another crime D is being convicted for and have a lawyer, police cant ask him about that crime.
no violation: 1. voluntary statements without police prompting, blood/ handwriting/ or voice samples, or if police believe there is a public
danger
- break in questions after given miranda? don’t need to re-give miranda, unless D invoked right to silence. cops can stop questions but then start again later on new q’s about a new crime….need to give miranda warnings again if 2 week break …
- [ ] What is the exclusionary rule? Evidence obtained In volition of a person’s 4th or 5th, or 6th amendment
- [ ] What is fruit of the poisonous tree? States that generally illegal evidence obtained must be excluded together with al evidence from the exploration from that evidence.
- [ ] Fruit of the poisonous tree exceptions? illegal evidence may be purged/ or taint removed by either - Inevitable discovery - the evidence would have been discovered regardless of the illegal search ; however, the process of discovery must have already been in motion
- Intervening act of defendant- D voluntarily acknowledges the otherwise illegal evidence after there was a illegal search
- Independent evidence source- the prosecution must show that the evidence was gained from a source independent of the illegality
- In court indemnification- a witness in court identification of D will not be excluded if it was obtained prior to the illegality
- Live witness testimony- if a witness is freely willing to testify the court will hold that the testimony purges the taint (is allowed)
- [ ] When are fruit of the poisonous tree still allowed to be used when excluded and don’t meet the exception - Impeachment admissibility- can be used on cross examination to impeach creditability of a D who takes a stand
- Grand jury admissibility- can be used to return a grand jury indictment against D unless was obtained in violation of federal wire tapping
- [ ] When is fruit of poisonous tree not allowed even id in exception - Parole revocation proceeding- 1. violation of a Internal agency rule (okay if violate const. Or fed rule) 2. Parole revocation proceedings 3. Violation of a knock and announce rule 4. Good faith reliance on defective warrant
6th
Sixth Amendment—right to counsel
§ The Sixth Amendment, as applied to the states through the Fourteenth Amendment,
provides that the accused has the right “to have Assistance of Counsel for his defense during all critical stages of prosecution after formal proceedings begin.”
Next, judicial proceedings have begun—i.e., when the accused is formally charged via indictment, arraignment, preliminary hearing, etc. It does not attach uponarrest. It applies to all “critical stages” of the prosecution after formal charges are filed.
§ Once it attaches, any attempts to deliberately elicit an incriminating statement about the
offense that the defendant was charged with, in the absence of counsel or a knowing,
intelligent, and voluntary waiver, violates the Sixth Amendment. (July 2014)
right to speedy trial
is the 6th amd. and it attach when D is arrested or charged (whichever is first)
the courtuse factors to determine if it has been violated if:
1. the length of delay
2. reason for delay
3. whether D aassert his right to a speedy trial
4. amount of prejudice to D resulting from delay
if D right has been violated, dismissal of charges with prejudice.
guilty pleas
must be made voluntarily and intellegently that D understand the nature of the charge and its elements; the max authorized sentence and mandatory sentencing; the right to plead not guilty; waiving the right to a jury trial
bail
cant be excessive or arbitrary so no higher than is necessary to ensure D appears at trial
brady
prosecutor must disclose material evidence that is exculpatory for the defense that is known to the prosecution or police.
if the prosecutor fails then D gets reversal if the evidence was exculpatory (to not be admitted); failure to disclose likely affected the outcome of the trial and prejudiced D
Must show that it is reasonably probable that the D would have been acquitted had the defense ha timely access the info about the witnesses conviction.
–Brady exception: Evidence which unfairly surprises a party is still relevant and will still be admissible. However, since one party is unfairly surprised, they will be given time to properly prepare for the evidence.
right to jury trial
any civil trial
or a crime that sentence of greater than 6 months (reguardless of the actual sentence imposed)
jury is 6 jurors..made of rep. of cross section of the ethnic demographics of the community
peremptory challenge to strike a potential juror; allows the disqualification of a juror as long as the reason is race and gender neutral
can question jurors based on race when race is inextricably bound up in the case.
confrontation clause
d had a opportunity to cross exam declarant during a previous trial and D is now unavailable
Co D’s
generally co-D’s confessions that implicate D is not available; unless
exception: availabel if trial is a bench trial;
co-d testifies and is subject to cross;
Each D has a seperate trial;
confession is redacted to elimante all references to D
(This is not the same as when the jury gets instructions not to consider somethingbecause “it is more than likely that the jury will consider it”
seizure vs. custody
interrogations vs
probale cause vs reasonable sus.
warrant for arrest vs warrant for search
frisk vs plain feel
§ Custody: a suspect is in custody if there is a formal arrest, or a restraint on freedom of
movement to the degree associated with a formal arrest. (July 2016, Feb 2008)
seizure- reasonable person does not feel that they are free to leave: factors are the threatening presence of several officers; display of weapons; physical touching of person; indication that compliance with request is an order.
§ Interrogation: this includes questioning initiated by law enforcement officers or any words
or actions that the police should know are reasonably likely to lead to an incriminating
response from the suspect. (July 2016)
Probable cause vs. reasonable suspicion
Probable allow a officer to stop you temp and search without a warrant. For further questioning when you break the law; however can arrest if state law allow. must be supported by verifiable and reliable info from an informant or seized evidence, or observation by law enforcement because police are reliable sources)
Reasonable suspicion- reasonable belief based upon articulable info (not a hunch) that the suspect has or is about to engage in. illegal or criminal activity. allow officer to stop and investigate.
arrest warrant- not needed if in public place, arrest for a misdemeanor punishable by fine and police witnessed the misdeanor; exigent circumstances exist; police had consent to enter D’s home or 3rd party home
- Passenger and driver can be asked to step out of the car during a lawful stop and arrest. Cop dont need to believe it is danger close to them in the wing Span.
frist - pat of outter clothing for weapons
plain feel- allows police to seize evidence if during a frisk police gets probale cause that a suspect has a weapon or contraband
privledges and immunitys
5th- right against self incrimination - D can refuse to tske the stand and witnesses can refuse to answer certain questions
Exception: 5th amd. domnt apple when:
witness was granted immunity (testimonal ake use is protecting against future proceedings unless the furture chargeis for false statement/perjury OR derivative use immunity is prohibiting use of the testimony against D in a crim proceeding also dont alloy to the crimes above OR tranactional immunity aka blanket immunity- protect from future prosecution for all crimes related to his or her testimony
priveledge is waived
incrimination is impossible (sol has run)
Spousal communication- made during the course of the marriage…and (after or b4?) , can’t waive…it exception, if told a third party not priv the part that was told is not privledged anymore.
Spousal testimony - one asking to test I my can waive apply during and (after or b4?)
Att client- for legal advice..exp advice to commit or further a cri e or Att fees not privy
Exams - if prosecutor try to get them but get court approval because this is protected by 6 am right to counsel
Immunitys
Transactional - against all crime now and future based on testimony
Use and derivative
miranda rights and custody
custody - courts look to “totlity of circumstance” location of the intergration; lenghth of the interrogation; circumstances (suspect locked in the room can come and go as please), suspect had reasonable belief that he was in custody; the age of the suspect (younger more likely in custody)
miranda rights- must be given b4 interrogation, statements obtained b4 geting miranda is inadmissible until get them. exception: police advise the suspect of their rights and suspect freely waives those rights officer can question a suspet without violating miranda
Exception: public safety - for public safety concerns (to determine the location of weapon, find accomplices)
Detectives don’t have to tell D of police prince. Events occurring outside of the presence of the suspect and entirely inknown to D can’t have a bearing on the capacity to comprehend and knowingly relinquish a con right.
D must uneand to remain silent equivocal request for a attorney an officers must stop with questiong of that crime until : att is present during interrogation; d initiate further communication with police, D reinitates the contact with police; if d was released,2 weeks have pased and the suspect is given a new miranda warning
***miranda violation statements can be used against D if D take the stand however involuntary statements (coercie) will not be admitted
coercied confession - courts look to extent of deprevation of needs, location, duration, and physical conditions of the interrogation; use of force or threat of force; psycholgical pressure of interrrogation use of decption or trickery; D’s age, heath, education, interllegence, genderm background, culteral background, D’s experience with the criminal justice system.
