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CRIM PRO Flashcards

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1
Q

CRIM PRO CHECKLIST 6

A
  1. 4A Arrest, Search, & Seizure
  2. 5A Self Incrimination
  3. 6A Jury Trial, Confrontation, & Counsel
  4. PreTrial
  5. Trial
  6. Post Trial
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2
Q

4A ASS

A
  1. State Action, and
  2. Rxnble Expectation of Privacy REP

goes to Standing

applicable to States by 14A DP

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3
Q

State Action

A
  1. police
  2. private person directed by govt or police only
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4
Q

Rxnble Expectation of Privacy REP

A
  1. home
  2. premises
  3. live on premises (ex. grandchild living in grandparent’s home)
  4. overnight guests
  5. smartphone data
  6. dressing rooms
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5
Q

REP Exceptions

A
  1. outside the curtilage (Open Fields doctrine)
  2. commercial properties in highly regulated industries
  3. sound of voice
  4. stylle of handwriting
  5. acct records held by bank
  6. paint of car
  7. monitor location of car on public street or driveway, but no GPS installation or enhanced sense devices
  8. odors emanating from containers or car
  9. anything that can be seen from public airspace
  10. garbage on curb for collection
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6
Q

EXCLUSIONARY RULE

A

inadmissable evidence when unlawfully seized

by Mtn to Surpress decided by Judge
- factual findings are reviewed for clear error
- findings of law are reviewed de novo

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7
Q

ARREST

A

unrxnble seizure of persons
1. Seizure
2. Terry Stop and Frisk
3. Warrant

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8
Q

SEIZURE OF PERSON

A
  1. when police
  2. by means of physical force or show of authority
  3. intend to terminate/restrain freedom of movement
  4. under Totality of Circumstances
    - if police intent to restain is ambiguous, or
    - if D submission is only passive acquiescence,
    - then seizure occurs if a rxnble person would not feel free to leave

  1. Arrest
  2. Warrantless Arrest
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9
Q

ARREST

A
  1. requires Warrant PC
  2. Warrantless Arrest (Warrant Exceptions) in Public APWPACE Terry
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10
Q

WARRANTLESS ARREST Public APWPACE Terry

A
  1. public place
  2. automobile
  3. SITLA Protective Sweep
  4. SITLA Wingspan containers
  5. Plain Viiew
  6. Administrative
  7. Consent
  8. Exigent Circumstances
  9. Terry Stop
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11
Q

Public Arrest

A
  1. public place, or
  2. for felony or misdemeanor
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12
Q

AUTOMOBILE EXCEPTION

A
  1. PC for contraband / evidence of crime
  2. all of car, incl trunk & containers

cannot enter home or curtilage to search car

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13
Q

TERRY STOP RSPF

A
  1. Rxnble suspicion TOC (more than vague suspicion but less than PC) based on articulable facts that detainees involved in illegal activity and is lmited/temporary intrusion on D freedom of movement, and
    - Stop & Inquire - brief detention
    - Request for Information - at anytime, except if police whim or caprice
    - Chekpoints - nondiscriminatory stops and purpose is for articulable reason pertainining to cars and their mobility beyond general crime prevention (not random and not Burglary)
    - Traffic Stops - RS or PC of violation of traffic laws
    a. seizure of all occupants (police may order all occupants out of car)
    b. Pretextual Stop police ulterior motive for stopping is irrelevant as long as the stop was legal
    c. dog sniffs OK as long as the stop does not extend beyond the time needed to issue a ticket or conduct normal inquires (dog alert can escalate to PC, but not outside of suspected drug dealer home)
  2. Frisk Plain Feel only
    - w/o PC may pat down a person’s outer clothing for safety, ie. weapon
    - also immediately obvious idetified object, ie. contraband

if RS becomes PC, then police can Arrest and conduct full search

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14
Q

SITLA PROTECTIVE SWEEP

A
  1. w/o RS or PC, rxnble belief that suspect is dangerous and may get immediate control of weapons, limited to compartments and places where a weapon could be hidden (not trunk) and evidence of offense (all areas), or where attack could be launched from immediately adjoining place of arrest
  2. w RS that confederates are hiding beyond immediately adjacent areas
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15
Q

SEARCH INCIDENT TO A LAWFUL ARREST Wingspan

A

contamporaneous in time & place of immediate surrounding, incl pockets / containers

exclude cell phone / laptop unless Exigent Circumstances

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16
Q

PLAIN VIEW

A
  1. public = no REP
  2. private - immediately apparent incriminating evidence from lawful presence with vantage point, incl Plain Smell & Feel
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17
Q

ADMINISTRATIVE WARRANT EXCEPTIONS IS

A
  1. inventory - upon Arrest and Auto impounded
  2. Public School Officials - as long as not directed by govt
    - moderate chance of finding evidence, methods are rxnbly related to search objectives, and search is not excessively instrusive in light of age/sex/wrongdoing
    - Random Drug Test only for participation in extracurricular activities
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18
Q

CONSENT V/TP

A
  1. freely, voluntary, and intelligently
  2. TP can consent to Common Areas or Areas under Authority
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19
Q

OPENING INTL MAIL AT BORDER RS

A

allowed w RS that mail contains contraband

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20
Q

WIRETAPPING

A
  • limited period of time
  • PC for specific crime has been or is about to be committed
  • ID persons and desribe particular conversations to be tapped
  • when to terminate tapping
  • reveal intercept conversation to court
    1. Unreliable Ear - speaking to someone who has agreed to wiretap = assumption of risk that conversation is not private
    2. Uninvited Ear - no right to 4A if speaker makes no attempt to keep the conversation private
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21
Q

EXIGENT CIRCUMSTANCES

A
  1. Hot Pursuit (w/in 15 mins) - PC for mere evidence
  2. Emergency police objective rxnble belief / apprehension that delay in getting warrant to result in immediate danger of
    - police / public safety (aid)
    - destruction of evidence, or
    - fleeing felon

otherwise Arrest requires PC TOC Warrant

police cannot create the exigency

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22
Q

WARRANT PC TOC

A
  1. be issued by detached & neutral magistrate
  2. PC, supported by oath / affidavit
    - police personal observations
    - info from reliable & known informant (TOC, credibility, basis of knowledge)
    - info from verified unknown informant (anonymous)
  3. describe w particularity ID, places to be searched, and items to be seized

Anticipatory - Warrant can be prospective when illegal items may be in suspect possession

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23
Q

KNOCK & ANNOUNCE WARRANT

A
  1. must knock
  2. and announce
    - police presence, and
    - purpose
  3. to execute Warrant (must wait rxnble time for admittance / refusal of entry)

unless Exigent Circumstances, danger, futile, or inhibit investigation

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24
Q

EXCLUSIONARY FRUITS

A

Fruit of the Poisonous Tree - inadmissable evidence not only from the illegal seizure but also secondary derivative evidence resulting from primary taint

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25
Q

EXCLUSIONARY & FRUITS EXCEPTIONS

A
  1. Inevitable Discovery - in same condition through lawful means
  2. Independent Source - unrelated to tainted evidence
  3. Attenuation - passage of time and/or intervening events may purge primary taint
  4. Good Faith reliance on Warrant
    - police GF / rxnble mistake
    - clerical error
    - not serious problems w Affidavit, facially defective / fraudulently obtained / improperly executed warrant, magistrate who wholly abandons judicial role
  5. Isolated police negligence
  6. Knock & Announce
  7. In Court ID
  8. FRE does not apply - Grand Jury, sentencing/probation, civil, parole revocation

Harmless Error

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26
Q

JUDICIAL ERRORS

A
  1. Harmless Error - disregard error
  2. Plain Error - affects substantive rights, resulting in new trial or appeal even if not objected to at Trial
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27
Q

5A SI Miranda

A
  1. Against Self Incrimination
  2. through Miranda rights Silent Counsel
28
Q

SELF INCRIMINATION

A

no person shall be compelled in criminal case to testify against herself

applicable to the States through 14A DP

only for natural person, not biz entities

29
Q

MIRANDA RIGHTS

A
  1. to remain silent
  2. to counsel
    in Custodial Interrogation for Testimonial evidence only
30
Q

CUSTODIAL INTERROGATION

A
  1. Custodial - substantial seizure (not free to leave)
    - at police station does not automatically become custodial
  2. Interrogation - questioning and words/actions likely to elicit incriminating response
    - not voluntary statements
    - involuntary only if coerced by police TOC
31
Q

TESTIMONIAL EVIDENCE

A

not crying and not physical evidence (ex. precharge lineup, blood, urine, breathalyzer)

32
Q

TESTIMONIAL IMMUNITY

A

Prosecution may compel incriminating testimony in exchange for immunity from prosecution in another jdx
1. Use and Derivative Use - precludes use of testimony (default)
2. Transactional - blanket / total protection from all crimes

33
Q

MIRANDA WARNINGS

A
  1. must be given before interrogation starts
  2. not verbatim but must contain
    - right to remain silent
    - any statement can be used in court
    - right to an attorney (or one will be appointed)
34
Q

MIRANDA INVOCATION & REAPPROACH

A
  1. Invocation must be specific and unambiguous (mere silence is not enough)
  2. Stop
    - after obtaining counsel, or
    - 14 days or more break in custody (return to normal life can be done in cell)
  3. Re-Mirandarized to resume
35
Q

MIRANDA WAIVER KVI

A

POTE knowingly, voluntary, and intelligently by
1. D taking the stand or pro se
2. WN disclosure in response to a specific question

D has standing to assert violation of own rights, not TP

36
Q

MIRANDA EXCEPTIONS

A
  1. public safety
  2. routine booking questions
  3. undercover police
  4. impeachment
  5. spontaneous subsequent volutary statements
37
Q

6A JTCC

A

right to jury, public trial, confrontation witnesses against her, cross examine WNs, be present at own trial, assistance of defense counsel at all critical stages after formal proceedings begin

38
Q

6A ATTACHES

A
  1. automatically attaches when formal judicial have begun (charge, prelim hearing, indictment, arraignment)
  2. not at post conviction proceedings (ex. parole, probation)

police can w/hold info that counsel has been trying to reach D unless 6A attaches

39
Q

6A WAIVER MIRANDA KVI

A
  1. 5A Miranda Warnings are sufficient
  2. Subsequent Waivers - no presumption
  3. Pro se - Ct to warn and may appoint standy counsel
    - D may be competent to stand trial but incompetent to represent self
40
Q

6A OFFENSE SPECIFIC

A
  1. Blockburger test - 2 crimes in 1 criminal transaction is the same offese, unless separate proof (element) requirements
  2. Unlike Miranda, 6A counsel does not prohibit police from questioning about unrelated crime
41
Q

6A COUNSEL REMEDIES

A
  1. automatic reversal of conviction w/o specific showing of unfairness
  2. Guilty / Plea can be rescinded at anytime before sentencing and cannot be used as later admission
  3. Harmless Error for nontrial proceeding
  4. Informant in cell - only listen without questioning
42
Q

INEFFECTIVE ASSISTANCE OF COUNSEL

A
  1. rxnble competence presumed
  2. IAOC must show
    - representation fell below objective standard of rxnbleness, and
    - deficient performance prejudical (presumed if costs D an appeal or D was not informed of risk of deportation) and probability of difference outcome/result (not mere inexperience, strategy, or failure to produce mitigating evidence)
  3. Conflict of Interest - must show actual conflict and an adverse effect on counsel perf
    - actual conflict - Ct determines counsel personal interest
    - adverse impact - strategy not taken due to counsel other loyalties / interests
43
Q

PRETRIAL PROCEDURES

A
  1. ID
  2. Preliminary proceedings
  3. Right to bail
  4. Competency
  5. Grand Jury
  6. State duty to disclose
44
Q

ID / LINEUP

A
  1. corporeal (in person) vs. noncorporeal (ex. photo arrays)
  2. 6A counsel must be present for corporeal
    - suppress unless WN can ID D in Ct
  3. DP of impermissibly suggestive ID
    - impermissibly suggestive ID and substantial likelihoood of misID
    - Prosecution may prove reliability nonetheless (opportunity to view, degree of attention, accuracy of WN description, level of certainty, length of time)
  4. remedy is suppression hearing (outside of jury’s presence)
45
Q

CRIMINAL PRETRIAL PROCEEDINGS

A
  1. PC to detain
    - hearing w/in 48 hours of arrest
    - 4A release if no PC
    - no other remedy other than exclusion of evidence if detention is unlawful
  2. Initial appearance in front of Judge - charge, rights, appointment of counsel (indigent D), conditions of bail, acceptance of plea
46
Q

RIGHT TO BAIL

A

NO, but denial of or excessive bail must comply w DP

47
Q

COMPETENCY

A
  1. D must comprehend nature of proceeding against her (charge)
  2. and consult w counsel (assist)
  3. w a rxnble degree of rational understanding to be competent to stand trial

BOP may be placed on D

48
Q

BURDEN OF PROOF BOP

A
  1. govt BRD for elements of crime
  2. D C&CE vs. POTE for affirmative defenses
49
Q

GRAND JURY

A
  1. secret
  2. broad subpoena power (quashed only if opponent can prove no rxnble possiblity of relevance)
    - biz entity D cannot object, but can ask of Immunity
  3. D has no right to
    - counsel / Miranda
    - present/confront WNs or evidence
    - challenge SPN for lack of PC
    - to appear
  4. no dismissal due to procedural defect unless substantial impact on indictment
  5. overturn conviction if intentional racial discrimination in selection of grand jurors
50
Q

PROSECUTORIAL DUTIES

A
  1. before Trial, duty to disclose exculpatory info
  2. failure is grounds for reversal if D shows
    - evidence is favocable to D, and
    - prejudice resulted
51
Q

CRIMINAL TRIAL

A
  1. Jury Trial
  2. Guilty / Plea
  3. Speedy Trial
  4. Fair Trial
  5. Confrontation Clause
  6. Due Process
  7. Sentencing
  8. 8A Cruel and Unusual Punishment
52
Q

JURY TRIAL

A
  1. Fed 6A
  2. State 14A for non-petty offenses
  3. D right to be present at all stages, incl jury selection
  4. Auto attaches for non-petty offenses (authorized sentence of more than 6 months imprisonment)
  5. Waiver - obtaining Ct approval by freely/intelligently/voluntarily
53
Q

JURY

A
  1. 6 to 12 members, unless agreed
  2. unanimous verdict
  3. the pool is representative cross section of the community, but selected jury does not have to be
  4. Voir Dire
    - unlimited # of challenges each side for bias (Challenges for Cause)
    - Preremptory Challenge is limited to #3 for each side w/o cause as long as not based on race/ethnicity/gender (moving party to establish prima facie discrimination -> race neutral explanation by challenging party -> moving party to establish pretextual reason)
    - loss of challenge doesn’t violate right to impartial jury
    - State can choose between Harmless Error or automatic reversal
  5. neutral principles
  6. impartiality
    - subject to Harmless Error
    - Ct must allow questioning of potential jurors views on race in prejudice cases
    - Opposition on capital punishment / death penalty can be removed for cause if substantially impair duties during sentencing
    - Judge cannot instruct guilty to Jury
  7. sentencing enhancement cannot be done by judge w/o Jury if for reasons other than D prior conviction
54
Q

GUILTY PLEA

A
  1. KVI in front of a Judge
    a. nature of charges and crucial elements,
    b. max and min penalty
    c. D has the right to plead not guilty, and
    d. if he pleads guilty, he waives his right to trial
  2. right to counsel
  3. plea bargain
    - no constl right
    - Prosecution threat to bring more serious charges does not violate DP
    - no prosecutorial duties to disclose impeachment or affirmative defenses
    - enforceable against Prosecution and D, but not Judge (can reject)
    a. if Prosecutor violates bargain, Judge can order specific perf or D to w/draw plea
    b. if D violates bargain, Prosecutor can vacate sentence and reinstate original charges
  4. subject to Mtn to Set Aside by D attack
    - IAOC
    - lack of jdx, or
    - violation DP
55
Q

SPEEDY TRIAL

A
  1. DP protects preaccusation delay, w SOL as primary safeguard
  2. 6A protects post accusation delay, and attaches at Arrest or Charge
  3. Balancing test of
    - length & reason for delay
    - D assertion of right, and
    - prejudice to D
  4. remedy is DWP
56
Q

FAIR TRIAL

A
  1. impartial Judge w/o actual or apparent bias
  2. Prosecutorial misconduct
    - misstate law / fact
    - talk to D w/o counsel present
    - express opinions about D guilt / innocence
    - improper remarks about D
    - comment on D failure to testify
57
Q

6A CONFRONTATION CLAUSE

A

right to confront adverse WN (not absolute right to face to face, ex. minor V of SA), unless
a. Preventing confrontation serves an important public purpose and the reliability of WN testimony is assured
b. D is disruptive and is removed from the courtroom, relinquishing this right
c. Burton confession implicating a co-D is inadmissible, unless
i. All portions referring to coD can be eliminated, or
ii. Confessing D subject to cross exam, or
iii. Confessing D confession is being used to rebut D claim that D confession was coercively obtained

Hearsay testimonial statements for TOMA (rxnble expectation for use in prosecution), unless
- unavailable declarant, or
- D made WN unavailable to testify
Nontestimonial statements incl primary purpose of assisting police investigation of ongoing emergency

58
Q

5A/14A DP

A
  1. permissive presumption on element of offense, unless irrational
  2. mandatory presumption is per se violation
59
Q

SENTENCING

A

any fact, other than prior conviction, that can be used to increase statutorily prescribed maximum must be
- charged in indictment
- submitted to Jury, and
- BRD

60
Q

8A CRUEL & UNUSUAL PUNISHMENT

A
  1. grossly disproportionate punishment to offense, incl mandatory life in prison w/o parole on minor (at commission)
  2. Capital punishment / death penalty - Statutory scheme must give fact finder reasonable discretion, full info (mitigating factors), and guidance in making decision
    a. For murder – Death Penalty is valid
    b. For FMR
    - Death penalty may NOT be imposed for FMR where D, as an accomplice, did not take, attempt, or intend to take life
    - Death Penalty may be imposed for FMR if D participated in felony in major way that resulted in murder AND D acted with reckless indifference to human life
    c. For rape – invalid
    d. If prisoner is insane – invalid
    e. If prisoner intellectually disable – invalid
    f. If prisoner was younger than 18 when crime was committed – invalid
61
Q

POST TRIAL

A
  1. 5A/14A Double Jeopardy
  2. Appeal
  3. Conviction
62
Q

5A/14A DOUBLE JEOPARDY

A
  1. protects against second prosecution for same offense after acquittal / conviction and against multiple punishments for the same offense
    - Blockburger same offense bars DJ, unless
    a. crimes are not the same if require separate proof
    b. greater offense did not exist or was discovered at time of final judgment on lesser offense (ex. later death due to battery)
    c. no constitutional requirement that all known charges be brought in the same prosecution
  2. by same sovereign
    - fed & state Cts are different jdx
    - civil actions not precluded by criminal punishment
  3. attaches when
    - Jury is impanelled, or
    - First WN is sworn in for bench trial
63
Q

DJ EXCEPTIONS

A
  1. hung jury unable to agree on verdict
  2. manifesting necessity to end trial
  3. retrial after a successful appeal
  4. insufficient evidence, but retrial permitted if reversal based on weight of the evidence
  5. D breach of plea bargain, and original charges are reinstated
64
Q

APPEAL

A
  1. first appeal as of right (EP), incl right to counsel (counsel may w/draw, but no right to pro se Appeal)
  2. discretionary appeal - Indigent D has no right to counsel unless convicted as guilty or Nolo Contendere Plea NCP
  3. Judicial Errors - must be timely reserved
65
Q

CONVICTIONS ATTACK

A

after unsuccessful appeal under writ of habeas corpus (civil, POTE)
- Tests
a. the unlawful detention had a substantial and injurious effect / influence on the verdict, and
b. Ct decision was contrary to law or based on an unreasonable determination of facts

Habeas is o determine if the person’s imprisonment or detention is lawful against State agent, usually warden

NY Bar (14 decks)

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