crim pro Flashcards
The Fourth Amendment to the United States Constitution, which is applicable to the states through
the Fourteenth Amendment
The Fourth Amendment to the United States Constitution
prohibits unreasonable searches and seizures by government officials.
An unreasonable search occurs when the government
(i) invades a place protected by a reasonable expectation of privacy, or
(ii) physically intrudes upon a constitutionally protected area to gather information.
A person may not search any place, thing, or person without
a properly issued warrant that reasonably describes the place to be search and the items to be seized.
An exception to the search warrant requirement permits the seizure of an item found in
plain view even though not named in the search warrant.
for the plain view exception to apply a police officer may seize an item in plain view as long as
(i) the officer is lawfully on the premises,
(ii) the incriminating character of the item is immediately apparent, and
(iii) the officer has lawful access to the item.
A search warrant grants officers authority to search only
the places and persons named in it.
The right to have a jury trial extends to felonies, and the ability to have a bench trial can occur with the consent of
the defendant, the Commonwealth, and the judge.
The defendant may waive his right to a jury trial upon the advice of his counsel, as long as
1) the Commonwealth attorney and the judge agree and
2) the court determines before trial that the waiver was voluntarily and intelligently given.
waiver of the defendants right to a jury trial, by all parties, must be
on the record
A jury trial is bifurcated to allow for both a guilt and sentencing phase, where the same jury will decide punishment, but the Judge upon consent of the defendant and the Commonwealth, can be allowed to
determine the sentence.
The Fifth Amendment protects against
compelled self-incrimination and preserves the right to remain silent during custodial interrogation.
In Virginia, the Commonwealth bears the burden of proof beyond a reasonable doubt that a confession was made after
(i) a waiver of the Miranda warnings, and
(ii) that the confession was voluntary.
voluntariness of a confession will be negated by
Any promises, threats or coercion
factors in determining the coercive nature of a confession
The defendant’s age, state of health, education, and intoxication
A review of voluntariness of a confession is based on
the totality of the circumstances, including the time, length, place, and presence of others.
Under the Sixth Amendment, a defendant has the right to
1) directly encounter and cross-examine adverse witnesses, and
2) to be present at any stage of the trial that would enable the defendant to effectively cross-examine adverse witnesses.
A denial of the opportunity to cross-examine a prosecution witness with regard to bias
violates the Confrontation Clause.
If a juvenile 14 years of age or older at the time of the offense is charged with an act that would be a felony if committed by an adult, the availability of transfer from juvenile court to circuit court is based on
the defendant’s age and the nature of the felony.
For any felony by juveniles 14 years of age or older at the time of the offense, the circuit court may
adjudicate guilt and impose a sentence.
For Juveniles 14 years or older, charged with a felony, upon the Commonwealth’s motion before a hearing on the merits, the court may hold a transfer hearing to determine whether to
retain jurisdiction or transfer the proceedings to the circuit court.
If requested by written notice by the Commonwealth, the JDR court also must conduct a preliminary hearing if
a juvenile who was 16 years of age or older at the time of the offense is charged with certain violent crimes, including malicious wounding.
if probable cause found at a preliminary hearing for juvenile 16 or older, for certain violent crimes, the case must be
certified to the circuit court for trial.
In no scenario does the General District Court have jurisdiction over
a juvenile defendant.
A search occurs when government conduct violates
a reasonable expectation of privacy.
Under the exclusionary rule
evidence obtained in violation of the Fourth Amendment may not be introduced at trial to prove guilt.
The general warrant requirement is applicable to homes, but is not applicable if
voluntary consent is given, even if by an occupant other than the defendant.
In Virginia, in a criminal case, a spouse may be compelled to
testify on behalf of the other spouse.
neither spouse may be compelled to testify against the other, except in the prosecution for
(i) an offense committed by one spouse against the person or property of the other spouse or against the minor child of either,
(ii) the forgery by one spouse of the other spouse’s signature, or
(iii) sexual assault.
The privilege against testifying belongs with
the witness spouse, not the defendant spouse.
Because Wife’s testimony concerns her observations of Husband’s actions and not private conversations between Husband and Wife during their marriage, the privileged marital communications doctrine
does not apply.
The Commonwealth must provide the defendant 14-days notice prior to trial of its intention to introduce copies of
final orders evidencing the defendant’s prior criminal history, and must provide copies of any such final order evidence it intends to introduce at sentencing
at sentencing phase, The Commonwealth may present
victim impact testimony and the defendant’s prior criminal history (adult or juvenile).
at sentencing after commonwealth’s evidence, the defendant may
introduce any relevant, admissible evidence related to punishment.
at sentencing after defendants evidence, the commonwealth may
rebut with similar evidence.
A criminal defendant can appeal a final verdict or decision from the circuit court to the Virginia Court of Appeals
as of right.
file a Notice of Appeal within
30 days from the date of the order being appealed.
A copy of the Notice of Appeal must also be sent to
the Court of Appeals’ clerk’s office, as well.
Under the Fifth Amendment, an incriminating statement obtained as the result of custodial interrogation may not be used against the suspect at a subsequent trial unless
the police provided procedural safeguards effective to secure the privilege against self-incrimination (i.e., informed the suspect of his Miranda rights).
a Miranda violation does not automatically require
the suppression of incriminating statements made by the defendant after receiving Miranda warnings.
the U.S. Supreme Court has held that a second confession may be suppressed when
the circumstances indicate that the substance of Miranda has been drained away.
objective miranda
a reasonable person in the suspect’s position would not have understood the Miranda warnings to convey a message that the suspect retained a choice about whether to remain silent.
subjective miranda
did the police act with an intent to circumvent the purpose of the Miranda warnings.
police trickery, such as the “good cop, bad cop” routine, does not
necessarily prevent the use of a defendant’s statement
A person is seized when
he submits to a police officer’s show of authority
A temporary detention for the purpose of a criminal investigation is a “stop,” not an arrest, but
is still a seizure for Fourth Amendment purposes.
A stop is
a limited and temporary intrusion on an individual’s freedom of movement short of a full custodial arrest.
A police officer may stop a person when the officer has
reasonable suspicion, based upon articulable facts and in light of the totality of the circumstances, that the detainee is involved in illegal activity (i.e., a Terry stop).
officers must have an articulable, reasonable suspicion of a violation of the law in order to
stop an automobile.
When an officer has probable cause to believe that the driver of the vehicle has committed a traffic infraction, the officer may generally stop the vehicle, even though
the officer’s true purpose in doing so was to investigate the commission of an unrelated crime (e.g., an illegal drug offense) for which the officer lacked reasonable suspicion (i.e., a pretextual stop).
Evidence seized during a search in violation of the Fourth Amendment is inadmissible against
the victim of the search.
Only _______________ searches and seizures are subject to Fourth Amendment protections.
unreasonable
Warrantless searches are per se unreasonable unless
the search satisfies one of seven exceptions (e.g., consent) to the warrant requirement.
Voluntary consent of the person who has actual or apparent authority to consent to the search of the property
eliminates the need for police to obtain a warrant to conduct a search.
A bailee may consent to the search of property over which he is
properly exercising control.
In determining whether a person’s response constitutes consent, courts evaluate the ___________________ in which the response is made
totality of the circumstances
The failure by police to inform the person from whom consent is sought that he has the right to withhold consent does not
invalidate the consent.
A police officer who witnesses a traffic infraction has
probable cause to stop the car and issue a citation to the driver.
The Fourth Amendment to the US Constitution does not require police to obtain a warrant to search a vehicle if
they have probable cause to believe that it contains contraband or evidence of a criminal activity.
The police may search anywhere in a car that they believe there to be contraband, including
the trunk and locked containers, so long as they have probable cause to do so.
Probable cause to conduct a search requires a police officer to have more than just a
reasonable suspicion that evidence of illegal conduct will be found
Probable cause to conduct a search does not require the police officer to be
certain that such evidence will be uncovered.
the use of a drug-sniffing dog
does not violate a reasonable expectation of privacy.
probable cause to conduct a search requires a police officer to have more than just a reasonable suspicion that
evidence of illegal conduct will be found.
A defendant may move to suppress evidence seized during
an illegal search and seizure.
The Fourth Amendment protects persons from
unreasonable searches and seizures by the government.
An unreasonable seizure occurs when
the justification for legal seizure expires
After the conclusion of a traffic stop, absent reasonable suspicion, police extension of the stop in order to conduct a dog sniff
violates the Fourth Amendment’s protection against unreasonable seizures.
Under the exclusionary rule, evidence seized during an unlawful search
cannot constitute proof against the victim of the search.
Subject to some exceptions, the exclusionary rule applies not only to evidence initially seized as a result of the primary government illegality, but also to
secondary “derivative evidence” discovered as a result of the primary taint, also known as the “fruit of the poisonous tree.”
The Fourth Amendment has been interpreted as mandating that police officers secure a warrant based on probable cause to
conduct a search of a place protected by a reasonable expectation of privacy for the purpose of gathering information unless an exception to the warrant requirement, such as a stop and frisk, exists.
If a suspect is stopped for a traffic offense and given a citation but not arrested, then
there can be no search incident to lawful arrest.
A Terry stop is
a limited and temporary intrusion on an individual’s freedom of movement short of a full custodial arrest.
A stop is justified on
the reasonable suspicion, based upon articulable facts, that the detainees are or were involved in illegal activity.
An officer may then make a limited search of a person he has lawfully stopped, such as a pat-down of the outer clothing, if
1) he has reasonable suspicion that the person was or is involved in criminal activity and
2) the frisk is necessary for the preservation of his safety or the safety of others (i.e., reasonable suspicion that the person has a weapon).
Under the “plain feel” exception
1) an officer conducting a valid frisk
2) feels with an open hand
3) an object that has physical characteristics that
4) make its identity immediately obvious (i.e., he has probable cause to believe that the item is contraband),
5) then the officer may seize the evidence.
Police may also briefly seize items if
the officers have a reasonable suspicion that the item is or contains contraband.
reasonable suspicion that driver has a weapon based on his conduct, and a frisk is valid, looks like:
nervousness, perspiration, and continually putting his hand in his pocket
if evidence seized from illegal search is excluded, defendant should also file
a motion to dismiss if remaining evidence is insufficient to support probable cause for the charge
Stopping a car constitutes
a seizure of the driver under the Fourth Amendment.
Although there is a lesser expectation of privacy in an automobile than a home, the officer must have
an articulable, reasonable suspicion of a violation of the law in order to stop an automobile.
Police may use a pretextual stop to
investigate whether a law has been violated, even if they have no reasonable suspicion, provided that they have probable cause to believe that the law for which the vehicle was stopped has been violated.
stop is lawful even if there is a pretext for the stop where officer has
probable cause due to observing a traffic violation
Unreasonable searches and seizures are subject to
Fourth Amendment protection
An unreasonable search occurs when
governmental conduct violates a reasonable expectation of privacy.
Warrantless searches are per se unreasonable unless
the search satisfies one of the exceptions to the warrant requirement.
under the exclusionary rule, evidence obtained in violation of the Fourth Amendment
may not be introduced at trial to prove guilt
automobile exception to the warrant requirement provides that pursuant to a lawful stop of a vehicle police may
conduct a search of the passenger compartment for weapons, if
(i) the police possess a reasonable belief that the suspect is dangerous and may gain immediate control of weapons, and
(ii) the search of the passenger compartment is limited to those areas in which a weapon may be placed or hidden.
consent exception to warrantless search, negating need for probable cause to conduct a search where
1) permission is given voluntarily and
2) not under threats of harm or compulsion
In determining whether a person’s response constitutes consent, courts evaluate
the totality of the circumstances.
Failure by police to inform the person from whom consent is sought that she has the right to withhold consent
does not invalidate the consent.
A defendant may not be placed in criminal jeopardy twice for
the same offense before the same sovereign (state or federal system).
The Blockburger test for whether two offenses are the same requires that each offense have
the same elements or proof of fact
The double jeopardy defense must be raised before judgment in
the second trial or it is deemed waived.
under double jeopardy, If the defendant is acquitted on the charges, she may not be
charged for the same offense
under double jeopardy, If the jury is hung, the defendant may
be retried for the same offense
If the court dismisses the charges, the dismissal will not bar a subsequent prosecution of the charge unless
jeopardy attached at the earlier proceeding or the case was dismissed “with prejudice.”
under jeopardy, If the same act is in violation of two or more statutes, ordinances, or combination of both, conviction under one statute or ordinance is
a bar to prosecution under the others.
failure to inform a suspect of the right to refuse a search
does not invalidate an otherwise consensual search.
for a Terry stop to be valid, the stop must be justified on
the reasonable suspicion, based upon articulable facts, that the detainees are or were involved in criminal activity
an officer may make a limited search of the suspect who has been validly stopped, such as a pat-down of the outer clothing, if
he has reasonable suspicion that the person was or is involved in criminal activity and that the frisk is necessary for the preservation of his safety or the safety of others (i.e., reasonable suspicion that the person has a weapon
Fifth Amendment Miranda Rights
Any incriminating statement obtained as the result of custodial interrogation may not be used against the suspect at a subsequent trial unless the police provided procedural safeguards effective to secure the privilege against self-incrimination (i.e., informed the suspect of his Miranda rights).
if defendant was not read miranda rights, analyze whether
defendant was in custody at time of confession
Custody is
a substantial seizure and is defined for Miranda purposes as either a formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest.
If there has been no formal arrest, the question for custody is whether
a reasonable person would have believed he could leave, given the totality of circumstances
Interrogation refers not only to express questioning, but also to
any words or actions that the police know or should know are reasonably likely to elicit an incriminating response.
suggestion of favorable treatment in exchange for incriminating information was
reasonably likely to elicit an incriminating response, and did in fact do so.
because Jerry’s confession was made as the result of a custodial interrogation and prior to Jerry receiving Miranda warnings, the court should
have granted the defense’s motion to suppress this confession
The court may upon its own motion and must upon the motion of any party, require the exclusion of
all witnesses except the victim and the defendant.
at any trial the victim may remain in the courtroom and shall not be excluded, unless
the court determines, in its discretion, the presence of the victim would impair the conduct of a fair trial.
Defense motions or objections seeking the suppression of evidence seized during illegal searches and seizures must be made
in writing and notice given to opposing counsel not later than seven days before a circuit court trial.
